Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42
Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16
Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50
Source
Original judgment source is linked above.
Catchwords
Briginshaw v Briginshaw (1938) 60 CLR 316Bronze Wing International Pty Ltd v SafeWork New South Wales [2017] NSWCA 42Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16Cusumano v Commissioner of Police, New South Wales Police Force [2001] NSWADT 50CXJ v Commissioner of Police, New South Wales Police Force [2012] NSWCATAD 39Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Ford v Commissioner of Police [2022] NSWCATAD 87Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218Joseph v Commissioner of Police [2017] NSWCA 31Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368Lee v Health Care Complaints Commission [2012] NSWCA 80Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97McDonald v Director-General of Social Security [1984] FCA 57, (1984) 1 FCR 354Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10Pendrick v Commissioner of Police, New South Wales Police Force (No. 2) [2022] NSWCATAD 27Saxby v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 275
Sterjovski v Director-General, Department of Transport [2002] NSWADT 10
Judgment (17 paragraphs)
[1]
reasons for decision
The applicant Mr Dejan Tadic applied to this tribunal on 12 July 2022 for review of a decision by the respondent Commissioner to refuse his application for a category ABH firearms licence.
The applicant had been issued with a category AB licence on 11 October 2014 and a category H licence on 20 September 2017. His ABH licence was suspended on 29 October 2019 on public interest grounds as he had been charged with a serious indictable offence (exhibit R1, p 41). On 4 December 2019, however, his suspended licence expired and the Firearms Registry wrote to him on 11 December 2019 noting the expiry and pointing out that a licence would not be granted until all the charges were finalized (exhibit R1, p 42).
On 4 June 2021 the applicant reapplied for a category ABH licence (exhibit R1, pp 36 - 40), which was refused on the ground of his criminal history on 27 June 2021 (exhibit R1, pp 48 - 49). Through his then legal representatives the applicant sought an internal review of the refusal of the category H application (exhibit R1, pp 52 - 54) which was refused on 17 June 2022 (exhibit R1, pp 55 - 58).
As no request for an internal review of the category AB licence application refusal was made, the applicant would have been precluded by s 55(3) of the Administrative Decisions Review Act 1997 (ADR Act) from seeking review in this tribunal of the internal review's decision affirming refusal of the licence. Leave was, however granted, to the applicant pursuant to s 55(4)(b) to proceed with the application, which came on for hearing on 12 December 2022.
[2]
Applicable legislation
Section 11(3)(a) of the Firearms Act provides that a license must not be issued unless "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".
Section 11(7) states that "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".
The issues in the present application are thus whether the applicant is a fit and proper person to possess firearms without danger to public safety or to the peace, and whether the issue of a licence to him would be contrary to the public interest.
[3]
The evidence
The respondent adduced no oral evidence but instead relied on the documentary material, including the s 58 documents (exhibit R1, in three parts), and on cross-examination of the applicant.
The applicant tendered a signed statement dated 13 October 2022 (exhibit A1, attachment D) in which he stated that his licence had been suspended on 29 October 2019 following charges laid against him on 17 October 2019 of "recklessly dealing with proceeds of crime" and "receive m/v part-theft". He had done nothing wrong nor committed any crime and entered pleas of not guilty to the matters, which were determined at Liverpool Local Court on 25 May 2021. At the hearing the charges were both dismissed.
Despite having been acquitted of the allegations, he was issued with a notice of refusal on 27 June 2021. Through his lawyers he submitted an internal review request on 23 July 2021. Almost a year later, on 17 June 2022 he received a determination that the internal review had been unsuccessful. He therefore applied to this tribunal for review on 12 July 2022.
In relation to the reference to counselling and therapy in 2004, he had definitely attended all required sessions with Mr Peter Clarke Saunders and complied with his treatment and the orders of the court.
As regards his application form in 2014, if he did tick "No" to the question whether he had a criminal conviction referable to stealing, theft or dishonesty in the past 10 years as at the date of his application, it must have been an error, given what the Commissioner contends is the date of conviction, so the answer must be false. He did not intend to mislead when answering that question as "No". To the best of his recollection, he had referred to a document that allowed him to form the view that his conviction for the offence had been recorded against him more than 10 years before. He did not attempt to hide anything, nor was it his intention to be dishonest or untruthful in his application. He was, and remains, well aware that a false declaration in these applications is considered very serious and carries significant penalties.
Given his business and familial responsibilities, he would have never jeopardized his position for the purpose of recreational shooting. He has been with his wife Zorica for 30 years and they were married in 1999. They have three children aged 28, 21 and 20 from the marriage and they are a close family with traditional family values.
[4]
Respondent's submissions
The respondent relied on written submissions filed on 22 November 2022 which pointed out that the applicant has a lengthy criminal record that includes firearms offences, serious indictable offences and recent offences against laws designed to ensure public safety. While some of the history is not recent and some charges were withdrawn or did not result in conviction, the applicant's lengthy history of criminal conduct indicates a disregard for the law, for others and for public safety.
The tribunal should consider the applicant's lengthy record as indicating an inability to observe legal regulations imposed for public safety, and show a lack of responsibility when it comes to public safety. It followed that the tribunal could not be satisfied that there would be virtually no risk to public safety if he possessed a licence. In particular, he had pointed an unregistered firearm at a visitor to his residence during an argument, had threatened to kill his father-in-law and family and had been involved in multiple theft-related offences of such value as to be serious indictable offences.
While some of his impugned conduct was dated, the Court of Appeal had made it clear that the mere passage of time does not prove a reformation of character and it is necessary for an applicant to demonstrate why misconduct would not recur or why he had become a changed person: CXJ v Commissioner of Police [2017] NSWCATAD 39, [48], citing Lee v Health Care Complaints Commission [2012] NSWCA 80, [72] - [73]. The fact that the applicant continues to come to police attention shows that he is not a changed person.
While he had never been the subject of any adverse finding by reason of failure to comply with the firearms licensing regime, that was of little weight because he was never the subject of a firearms safe storage inspection. The respondent was entitled to rely on offences for which the applicant was never convicted. In Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [63] the court had said that "there is no reason in principle why an administrative decision-maker should not take into account evidence of matters that were the subject of criminal charges that did not lead to convictions".
The excavator charges, although not proven beyond a reasonable doubt, showed that the applicant knowingly received stolen property when he acquired the excavator. That showed that he was not a reformed character and his conduct is inconsistent with the grant of a firearm.
[5]
Consideration
Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the CAT Act (s 30) and the Firearms Act, including the Commissioner's refusal of a licence or permit: s 75(1)(a). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the Act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless 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. Section 11(4)(c) also provides that 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 the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.
[6]
Fit and proper person
The first ground on which the respondent's case was based was that the applicant is not a fit and proper person to hold a licence. Section 11(3)(a) provides that a licence must not be issued unless "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]
The older matters
The respondent relied principally on the applicant's criminal record, including four older matters, the first of which occurred on 29 April 1997 when the applicant was involved in an argument with a woman who visited his residence. Police were alerted, but not by the woman or any witness to the incident, but by an earlier witness report about a man in possession of a firearm who was seen entering the premises. Police attended the premises and spoke to the applicant, who said that a woman had attended the house where he was currently residing with his girlfriend, and he had produced the rifle and pointed it at the woman, who left the house and the scene before police arrived (exhibit R1, p 16).
The applicant was charged with possessing a firearm without a licence or permit and convicted and fined $400. He was not charged with assault. As Mr Stanton submitted, the amount of the fine suggests that the court regarded the offence as lying towards the lower end of the scale of culpability. Although it was a potentially serious breach, the violation occurred 25 years ago and there has been no repetition of such conduct by the applicant.
The second matter occurred on 13 July 1997 when at the time of serving an interim domestic violence order (ADVO), police obtained consent to a search of the applicant's garage and his vehicle, in which they found knuckle dusters, which the applicant said were for "self-defence" (id., 18). He was placed on a 12-month bond for possessing a prohibited article.
Thirdly, on 18 February 2002 the applicant was found guilty of common assault and sentenced to a six-month s 10 good behaviour bond. The available details are sketchy, but a condition of the bond was not to assault, molest, harass or threaten his wife Zorica (charge H13989667, id., 8). This appears to be the incident described at the hearing when in the course of an argument with his wife she punched him in the face, and he backhanded her in retaliation. He pointed out that they are still married to each other.
The fourth older matter arose on 15 August 2003 when, according to the police fact sheet (exhibit R1, p 5), the applicant and unknown confederates broke and entered Wade House in Camperdown and stole a plasma television set. The applicant's fingerprints were found in the fire stairwell, on a coffee table and the shaft and neck of a lamp. He was charged with breaking, entering and stealing and being an accessory before the fact to breaking and entering and stealing. He was found guilty of the accessory charge, but the breaking and entering count was not proceeded with (id., 8 - 9). He was placed on a two-year s 9 good behaviour bond.
[8]
The negligent driving charges
Next were two negligent driving charges, one in 2009 and the other in the following year. The applicant did not dispute that on 18 May 2009 while driving he struck a pedestrian at traffic lights, causing injury to her arm, shoulder and wrist which required surgery. He carried the pedestrian to a nearby seat and provided her with a jacket to wear until an ambulance arrived. On 6 July 2010 he was found guilty and convicted of negligent driving occasioning grievous bodily harm and initially sentenced to an eight-month bond, but the conviction was quashed on appeal on 1 October 2010.
The other negligent driving charge was the one that arose on 23 April 2010 when the applicant in a Toyota Rav4 drove to Smithfield Road in search of his recently stolen Holden Maloo, which a staff member had reported seeing there. On finding it he stopped and ordered the driver out of the vehicle, but the latter rammed the Toyota twice and decamped at high speed. The Holden began to fishtail and the driver lost control and spun out. The applicant then called 000 but the other driver ran away. The applicant's son began to pursue him, until his father told him to stop.
The applicant was charged on 19 October 2010 with negligent driving not occasioning death or grievous bodily harm, but the charge was dismissed on 21 February 2011 (exhibit R1, p 10). The applicant's conduct on that occasion was most imprudent, but the actual collisions were the intentional work of the driver of the stolen car, and as he had reported the matter to the police but no action had yet been taken, it was perhaps somewhat understandable that he behaved in the way he did.
[9]
The more recent matters
The applicant denied the allegation that resulted in an IAVO issued on 11 January 2013 after his father-in-law had reported that the applicant in the course of an argument on the telephone over money had threatened to kill him, quoting him as saying, "Don't expect to get any money. I am going to come and kill all of you and you can suck my d**k" (exhibit R1, pp 20 - 23). This had been one of a recurrent series of arguments between the two.
The applicant's accountant, who was with him at the time of call, confirmed that he heard him in a telephone conversation that turned into an argument, but could not clarify what was said as the conversation was switching between English and another language. Police conducted a thorough search of the premises but located no firearms. The applicant denied making any threats and said that at the time he was liaising with business clients, and that four other people were present when the call took place, including a solicitor, an accountant and two men from Speedway Petrol.
The event report states that, "As a result of the conflicting version provided by the Victim and the POI and the fact that the POI claims he has witnesses to the conversation police released the POI pending further investigation" (id., 23). The IAVO was not proceeded with. There was no evidence from the father-in-law about the incident. The incident has the appearance of an angry outburst in the course of a sometimes acrimonious dispute rather than a serious threat of violence.
[10]
The excavator episode
A more serious and more recent episode was that which arose in December 2017 in respect of the stolen Kubota excavator. The relevant facts and circumstances of this event have been set out above. The respondent's case rested on the proposition that the applicant must have known the excavator was stolen because, according to the fact sheet, it was worth $70,000 new and $50,000 second-hand. The applicant had estimated the new value as $70,000, but the source of the estimated second-hand value at $50,000 is not stated, and the applicant's evidence gave it as $15,000, asserting that once the prosecution discovered its true value in the course of the hearing at Liverpool Local Court, the charges were withdrawn (as they were).
For present purposes, the main points of concern arising from this event are, first, that the incident is relatively recent, and secondly, that the applicant denied knowing the name of the man from whom he had purchased the machine. At the hearing the applicant was adamant that he had in fact given police the man's name (which he could no longer recall) and that he had been "dumbfounded" to learn that the respondent alleged the contrary. The event report relates that when police spoke to the other "person of interest", one Rafaat ***** on 21 August 2018, he told them that he knew about the excavator that was sold to the applicant, claiming that a friend of his named "Vic" had asked him if he could store the excavator on his property while he sold it.
Rafaat claimed to have no idea that it had been stolen (from Mr Vijay Sewak) and said he could obtain all the details required to identify "Vic", adding that the latter was an electrician who used to work for him and had used his property to store a truck that he also sold. Further enquiries over a period of months, including some complex investigations concerning the contents of a mobile telephone and SIM card, failed to establish Vic's identity. Rafaat and his role are not referred to in the fact sheet.
Next, the event report stated that the applicant repeatedly avoided disclosing to police how much the excavator had cost him, but did say he had paid $6500 for it so far. The owner, Mr Sewak, had said it would have cost about $70,000 brand-new. While estimating its used value at $15,000, the applicant did not offer any explanation for his apparent refusal to inform police of the actual price he had agreed to pay.
[11]
The 2014 application
The next matter relied on by the respondent was that on 11 August 2014 the applicant had marked "No" in response to the question "Within the last 10 years, [have you] been convicted of an offence involving firearms or weapons, prohibited drugs/plants, fraud/dishonesty/stealing, prescribed restricted substances [etc]". He had also signed a declaration that he understood that it was a serious offence to make a statement knowing it to contain false or misleading information.
It is not disputed that a period of 10 years had not expired. What is in doubt, however, is whether the time that had elapsed was 9 years, 1 month and 2 days from the last conviction as was contended by the respondent, or 9 years, 10 months and 29 days as calculated by the applicant or an alternative estimate of 9 years and 6 months. The applicant's explanation was that he had misread a document he had received containing his criminal record and had not intended to deceive.
He pointed out in evidence that if he had known that there were only six months or 11 months remaining, he would never have jeopardized his business and his family's standing for the sake of engaging in recreational shooting. He was aware that the police already had his criminal history and there would have been no point in attempting to mislead or deceive. At all events a category AB licence was issued to him on or about 11 October 2014 and his category H licence was granted on or about 5 April 2017.
The other matter raised by the respondent was that on 1 September 2021, the applicant failed to comply with Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order (No.2) 2021 by shopping outside more than 5 km from his residence without reasonable cause and was issued with an infringement notice. No details of the contravention are before the tribunal, including how far away from the borderline the applicant was found to be shopping. As the applicant at the time lived in an area of Covid concern, the contravention could theoretically have involved a risk to public safety, but in the absence of further information it does not appear to be a matter of substantial weight.
[12]
The references
The applicant tendered five recent character references, the first, dated 7 October 2022 being from his wife Mrs Zorica Tadic who begins by stating that they have been together for the last 30 years and there are three adult sons from the marriage. During their entire marriage, Dejan had been a devoted and loving husband, but more importantly an amazing father to their three sons. He had worked very hard to establish his transport business as well as assisted the community in his various charitable works.
Dejan had an extremely hard upbringing, but had turned his life around and built a life for himself and his family. He had supported her and their three children for all their lives and has also gone out of his way to take care of her parents. When her father had a kidney disease and needed treatment in a specialist hospital in China, Dejan fully funded two trips to make sure that her father obtained the best treatment for his conditions.
He works tirelessly for the transport business, often working 7 days a week in stressful environments to support the family and often spends time doing charity work, having little time for himself. Not often does he spend his time on himself and wishes to do target shooting with his friends and obtain his licence again for those reasons. She is certain that he would abide by firearm regulations at all times and can confidently say he is not a threat to the public and will ensure the safety of others throughout.
Ms Jacky Lozanoska has known the applicant and his family for approximately 10 years and his wife Zorica is one of her best friends who she sees on a regular basis. A few years ago his eldest son Alex became godfather to her younger daughter and son-in-law and to their two children. Because of the close relationship, they would be at family celebrations and gatherings as well as in everyday settings very often. From her observation so far, Dejan is a wonderful father to his three sons and a dedicated husband to her best friend Zorica. Having come from an unstable upbringing and at one point even being homeless during his younger years, he had definitely worked very hard on his life to set a good example, not only for his sons but also for the whole community around him, that no matter what your background is, you can still achieve in life great things with hard work and dedication.
[13]
Evaluation
The applicant is a man aged 52 with a wife and three adult sons of the marriage. The spouses have been together for 30 years. He is the sole shareholder and director of a road transport business that employs 30 people.
The respondent submits that he is not a fit and proper person to hold a firearms licence, mainly on the basis of his criminal history. That record consists, first, of four matters that arose between 1997 and 2003. Three of the matters led to the imposition of bonds, but the 1997 offence of possessing an unregistered firearm, incurred a $400 fine. The most serious was perhaps the accessory before the fact charge relating to the breaking and entering of a warehouse and the stealing of a plasma television set. The applicant admits the offence and said that at the time he was under negative influences, including mixing with "bad people" and drug abusers. He was placed into 2-year bond and there has been no repetition of conduct of that kind.
Then there were the two negligent driving charges in 2009 and 2010, the first involving injuring a pedestrian at a traffic light. He gave the pedestrian immediate assistance, but she required surgery. His conviction of negligent driving was quashed on appeal. The 2010 charge arose when he followed a car that had been stolen from him and stopped it, but the driver rammed his vehicle twice and departed at speed, eventually losing control and escaping on foot. The negligent driving charge against the applicant was dismissed. His conduct in this episode was most imprudent but perhaps somewhat understandable, as at that stage he had been unable to secure any police action.
On 13 January 2013 he was the subject of an IAVO obtained by his father-in-law following threatening language in the course of an telephone call. It appears to have been in the nature of an angry outburst in the course of an argument, rather than a serious threat, and the IAVO was not pursued.
The excavator matter that led to his being charged on 17 October 2019 with receiving stolen motor vehicle parts and dealing with property suspected of being proceeds of crime still raises concerns because of some aspects of the applicant's explanations for his conduct. The police report states that he claimed not to know the name of the man from whom he had purchased the excavator, but at the hearing he said he did know at the time and had given the information to the police. Again, at the time he declined to say how much he had paid for the machine, only stating that he had given the seller $6500 to date. He said that he had not received a receipt for the moneys already paid, as he expected to receive the receipt when he had paid the full amount. The narrative suggests negligence at the least, but the evidence is rather fragmentary and insufficient to permit an adverse finding on the balance of probabilities.
[14]
The public interest
The other ground on which the respondent relies is that it would not be in the public interest for the applicant to hold a firearms licence. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to 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.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, 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, [64] - [66] 66].
Thus, 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 "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].
[15]
Conclusion
For the reasons set out above in relation to fitness and propriety, I also consider that it would not be contrary to the public interest for his licence to be reinstated. He has had no conviction of any kind for 18 years and during the eight years in which he held a firearms licence it does not appear that he infringed any of the statutory requirements of the licensing scheme. Nor has it been suggested that during that time he used or stored firearms in a negligent, threatening or insecure manner. In my view he would not present any real or appreciable risk to public safety, as understood in Webb, if he were to hold a licence.
I have already found that the applicant is a fit and proper person to hold a licence, and I also find that it would not be contrary to the public interest for him to do so. The decision under review should be set aside.
[16]
Orders
1. Decision under review set aside.
2. A category ABH firearms licence is to be reissued to the applicant.
[17]
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 2022
He owns and operates a successful transport business through his holding company Tadic Holdings Pty Ltd, and its subsidiary operating companies, of which he is the sole director and shareholder, which has approximately 30 employees, He works 7 days per week and has little time for himself or for his own interests, as he always puts his family and work ahead of himself.
Shooting has been a hobby and passion that he has enjoyed for many years and having his license taken away has been very painful and disappointing. He has attended Sydney International Shooting Centre for target shooting and St Mary's Indoor Shooting, where he would attend at least once a month. He was part of a community of good people and enjoyed shooting as a way to clear his mind of work and stress.
As he has no other hobbies or play any sports, since his licence was revoked he has been unable to unwind and enjoy himself in a way that shooting allowed him to do. He sincerely requests that his application be granted as he is a responsible and loving father of three children and a good contributing member of society. If his licence is reinstated, he would like to continue shooting at Sydney International Shooting Centre and St Mary's Indoor Shooting, where he had responsibly participated in recreational shooting without incident for years. Since obtaining his firearms licence, he has been subject to the requirements of firearms storage and safety, by which he has abided at all times. He would certainly continue to abide by all safety requirements and regulations at all times, should his firearms licence be reinstated, as he has in the past.
Cross-examined by Mr Roberts on behalf of the respondent, he acknowledged that he had received some convictions as a teenager. In 1997 he had been convicted of possessing an unregistered .303 rifle, which was not kept at his house. He had pointed it at the woman referred to in the course of an argument. In July 1997, he was found guilty of possessing a prohibited article (knuckle dusters) and placed on a bond for 12 months. He had also been charged with assault, which arose from an argument with his wife in which she had punched him in the face and in retaliation he had given her a backhander. His conduct had been reprehensible, but he was still married to his wife and she supported his application.
As regards charge H22122284 (exhibit R1, p 9) he was charged on 3 April 2004 with breaking, entering and stealing (a plasma television set) and on 9 September 2005 was found guilty of the offence of "accessory before the fact to break, and her and steal" and placed under a two-year s 9 bond. He said he had not been present at the warehouse at the time of the theft but his fingerprints had been found, including on a coffee table, as he had authorized access to the premises. He was acquitted of breaking and entering but found guilty of the count of accessory before the fact.
The applicant explained that he had left home at 15 and lived on the streets for three years in bad surroundings at Cabramatta where drugs were common. Later he had been working hard but as a result of binge watching the television series The Sopranos he had felt he wanted to be like the protagonist in that production. He had been talking to some men who wanted to know where they could obtain a plasma television set. He had told them where and how they could contrive to obtain one. The episode cost him $70,000 in compensation and legal fees. His wife had no idea of what was happening and he almost lost his family as a result. He did not recall whom the television set was for, and had never seen them since. They were bad people.
The accessory charge related to his contact with the person who wanted the television set. The applicant thought he had given police the person's name and had been dumbfounded to see the allegation that he had withheld that information. The episode had changed his whole outlook on life.
His attention was then drawn to the charge of negligent driving on 19 October 2010, which was dismissed on 20 February 2011. It had arisen on 2 23 April 2010 when he had been driving a Toyota Rav4 with his son in the car and had turned into the path of a Holden Maloo that he had identified as being his recently stolen vehicle. He said he had been driving his father-in-law's vehicle as his own car was the one that had been stolen. At the time it had contained his and his wife's wedding rings and other personal items.
At the time his business had been employing between 30 and 40 people, and staff members had kept telling him they had seen his car in various places. He had reported it to police but no action had so far been taken. When someone told him he or she had seen it in Smithfield Road, he drove out to try to find it, mainly in order to recover the wedding rings.
When he saw the Maloo, he stopped and told the driver to get out, but the driver panicked and drove his vehicle into the applicant's car. He gave chase, but the Maloo started fishtailing and spun out into the Rav4 that the applicant was driving. He agreed that in hindsight chasing the stolen vehicle in that way was dangerous, but he had thought the offender would stop and run away. He had tried to kill the applicant and escape. The applicant had telephoned 000. His son had started to follow the fugitive on foot, but the applicant told him to stop. The charge of negligent driving brought against him was dismissed.
The applicant was asked about an incident on 10 January 2013 when he was involved in an altercation with his father-in-law, who had bought a truck for the applicant on his credit card subject to an agreement that the applicant would make payments. The father-in-law reported to police that he called the applicant to discuss payments and that the applicant had threatened to kill him. The applicant admitted that there had been many arguments with his father-in-law, but denied making any threats. Police obtained an interim apprehended violence order (IAVO) against the applicant, but it did not proceed to a full order (exhibit R1, pp 23, 56).
On 31 December 2017, the owner of a 2007 Kubota five-tonne excavator that had been stolen saw the applicant using his excavator on the applicant's property. The applicant had said he had purchased the excavator from a man whose name he did not know at an address in Austral but refrained from disclosing to police how much the machine had cost him, though he did say he had paid $6500 for it so far and that it would cost about $70,000 new. He also said that he had heard the excavator was for sale through word of mouth, and that he did not have a receipt for the money he had paid on it to date.
In cross-examination the applicant said that he had purchased the excavator in about December 2017. His trucking business had declined because of the effect that Chemist Warehouse marketing expansion was having on his pharmacy customers who were competitors of that corporation. His business had declined and he decided to sell part of the land he owned in order to pay his debts. Preparing the land at the back of his property for sale involved laying an underground cable to carry NBN data to the block. He had engaged as a surveyor for the project, who suggested that he obtain an excavator to rent, because it would be cheaper than the estimated $25,000 that NBN would charge to lay the cable. He was unable to locate an excavator to rent, however, and was investigating other options. He found an excavator on a property nearby where there was a large amount of such equipment for sale and decided to buy a five-tonne model for $15,000. The one he was interested in looked old, and he offered to pay $13,000 for it, offering 50 percent initially and paying off the balance. As things turned out, however, he became too busy and was unable to make use of the machine.
On New Year's Eve he was approached by a man who claimed to be the owner of the excavator. He showed the machine to him and was told that it had been stolen a month earlier. The police believed the applicant's account, including where he had purchased the machine and from whom. Subsequently the police raided that property and found a great deal of equipment. The applicant said he was glad he had not sold the excavator, though he had lost the money he had paid for it. But the owner had allowed him to finish the job he was doing, which saved him $10,000. The owner then recovered the machine.
The police had not, however, interviewed the owner, who said the excavator was worth between $15,000 and $20,000. He had been charged because the investigating officer thought he should have realized the machine was worth $70,000. He admitted that he had not told police the total purchase price, but had told them he had paid a 50 percent deposit.
He said that there is huge depreciation on that kind of machinery. A new forklift truck costs $40,000, but its second-hand value was well under half that. He had been unaware that the machine was stolen, because it was difficult to find out if that type of equipment was stolen, unlike the situation with trucks for example. He had no receipt for the amount paid but had expected to receive one when he had paid the price in full. He had wanted to obtain a receipt so that he could sell the machine as he would not need the machine once the back lot on his property had been sold.
The charges had come to trial, but once it became apparent from the evidence that the excavator was not worth $70,000 but closer to $15,000 - $20,000, the prosecutor had withdrawn the charges. Nevertheless, the episode has had a huge effect on him. When his son applied for a firearms licence, his application was rejected because of that entry on his (the applicant's) record. He agreed that in his 2014 licence application he had ticked the answer "No" to the question whether in the past 10 years he had been convicted of an offence involving firearms or weapons, prohibited drugs/plans, fraud/dishonesty/stealing, prescribed restricted substances etc.
That reply was false or misleading, as he had been convicted of the offence of "accessory before the fact to break, enter and steal" on 9 September 2005, and consequently only nine years, one month and two days had passed before his 2014 application. That application was, however successful and a category AB licence was issued to him on or about 11 October 2014. He explained that he had been given a criminal history form that referred to his record in 2004 as the charge date, which was over 10 years before his application, but the actual hearing date was in 2005, which was less than 10 years previously. The criminal record extract was not clear and he had not read it properly. If he had known he had 11 months to wait, he would have done so. He would not jeopardize his business for the sake of recreational shooting, especially as he knew the Commissioner had full access to his record. In re-examination he pointed out that he had never been charged with any offence for giving the incorrect answer on his application.
The applicant also relied on five character references, the contents of which are outlined below.
Again, he must have known that the information in his 2014 application was false or misleading, or at least was reckless as to the truth. The information provided was not inconsequential and was materially relevant to the applicant's fitness to hold a licence: Saxby v Commissioner of Police, New South Wales Police Force [2021] NSWCATAD 275, [74]; Bladen v Commissioner of Police, New South Wales Police Force [2015] NSWCATAD 240, [26]. The fact that the applicant was granted a licence in response to the 2014 application is not a reason to suggest that the tribunal should not place weight on the applicant's conduct before that application.
In light of the respondent's submissions on fitness and propriety and the importance of the integrity of the firearms licensing system, the tribunal should be satisfied that it is not in the public interest for the applicant to continue to hold a firearms licence.
According to his account, he was not present at the time of the offence. This episode had occurred at the time when he was in thrall to an irresponsible mindset brought about by among other things binge watching The Sopranos crime series after he had left home and had been living on the streets for three years in insalubrious surroundings. His fingerprints were found because he was permitted access to the premises (although the fact sheet states that there was no record of that). He did not explain on what basis he was permitted access and was not asked about it at the hearing. His involvement had been when the principal offender had told him that he wanted a plasma television and asked the applicant whether he knew where to obtain one, and the latter told him where and how he could do so. For that reason he was an accessory before the fact. He said that after that he had turned his life around and started to work hard to improve himself.
Again, there was the applicant's inability to produce a receipt for the excavator. His explanation at the hearing was that he did not obtain a receipt for the $6500 part payment, but expected to receive a receipt when he had completed paying the full purchase price. That seems like a rather lackadaisical way for an experienced businessman to conduct a substantial transaction and it raises concerns about the true nature of the dealing. The point was not, however, explored at the hearing.
There is no ERISP transcript or police brief of evidence relating to the matter before the tribunal and there appears to have been no formal questioning of the applicant or any administration of a caution. The available documents are convoluted and incomplete. While the episode has troubling aspects, and certainly evinces a lack of care on the applicant's part, the evidence before the tribunal is insufficient foundation for a finding adverse to him on the balance (preponderance) of probabilities.
He is mature, sincere and as a positive outlook on life, setting a positive example for his sons. Having had the opportunity to see him during good and some very trying times, she had seen him conduct himself in a very professional and courteous manner towards everyone around him. She is not aware of any conduct that would classify him as a person of bad character and unfit person to hold a firearms licence. He is a successful business person and has operated a business for most of his adult life. She is also aware that his company employs a number of people, thus contributing towards the community through reducing the unemployment rate.
Ms Margita Asanovic has been a family friend since she was born. She has been part of his journey of growth, maturity and his dedication to kindness including his community work. He had been by her side as a friend and also a brother and most importantly as someone she can look up to. As a friend for many years, she has been aware of his striving to succeed in his work and can confirm that he is one of the hardest working people, committed to not only helping his employees but also the community.
Dejan has always sought to help people in the workplace and regularly offers his guidance to new employees and people recovering from tough situations, including those of a medical or financial nature. He is the kind of person who commits his spare time to organizations such as "Caritas" and his patience and kindness are exercised daily through his random acts of kindness to those in need. Recently he donated 200 album stands to his local church and has been actively involved within the church.
Ms Asanovic has personally been aware of some of his personal matters and believes he has every intention of moving on and improving, shining light on his ability to look at the positive and further desire for self-improvement from his mistakes of the past.
Mr Daliborka Jaglic, a real-estate manager at Century 21 at Fairfield, has known the applicant in a personal capacity since 2018. He comes from a working-class background and has worked very hard to build his life. He finished his education in Western Sydney and did not develop an interest in academic pursuits in tertiary education. He turned himself to work and providing for his family from a young age and worked very hard to establish his transport business from a humble start up to a well-established business that provides delivery and logistics services for businesses across New South Wales. He has worked over 22 years to establish the business and where he is also able to support his family.
He is a kind and well-respected person within the community who puts the interests of others above his own. He is a dedicated and loving husband and a great father to his three children. He has also provided assistance to his aunt, who is 83 years of age and in frail health. She suffered a stroke last year, after which she was hospitalized and requires continuous care and assistance. Dejan's aunt currently resides at home with her son, who works full-time and is rarely at home because of his work commitments. Dejan is like a son who goes out of his way to care for her, including taking her to medical appointments and, more importantly, giving her company to make sure she doesn't feel alone. As a father of three boys, Mr Jaglic is confident that the applicant will abide by rules and obligations imposed on him if his licence were reinstated.
Finally, Mr George Kyriacou explains that his firm acts as the accountants for the applicant and his related entities and has done so for the past three years. During that time, they have observed him to be a diligent worker and a valued member of the community who listens to, and follows, advice from their firm. He is a responsible business owner and currently has 30 direct and indirect staff within his company, Tadic Holdings Pty Ltd. The company and Dejan personally have up to $5 million worth of assets that are made up of property, vehicles and contracts. They believe he is a reliable employer who is generous and understanding towards his employees. He has been a valued client of their firm and has always displayed high levels of professionalism and respect.
The applicant admits that in his licence application of 21 August 2014 he had incorrectly marked "No" in response to the question about whether he had been convicted in the last 10 years of specified offences. The dispute related to whether the elapsed time in his case had been 9 years and 10 months, 9 years and 6 months or 9 years and one month. The applicant's evidence was that he had mistaken the date of his last conviction as a result of misreading the criminal history report he had received. In his evidence he was emphatic that he would never have jeopardized his business and his family's standing merely in order to avoid having to wait six months until the 10-year disqualification period expired for the sake of recreational shooting. That is a reasonable point. As Mr Stanton pointed out, even professionals sometimes have difficulty interpreting official criminal history documents and indeed, mistaking the charge date for the court date (which may be a year later) is not uncommon. In my view his giving of the incorrect answer was unintentional.
As Dr Lucy SM pointed out in Pendrick v Commissioner of Police, New South Wales Police Force (No.2) [2022] NSWCATAD 27, [70]:
These decisions establish that the making of false or misleading statements on an application form may, in some circumstances, be a factor indicating that it is in the public interest for a person not to hold a firearms licence. However, that will depend upon the circumstances of the case. Where a statement is false or misleading, the question of whether the applicant intended to mislead is relevant.
From the character references the applicant has supplied, it appears to be widely recognized that after a troubled youth and early adulthood, he turned his life around and through hard work established himself as a successful businessman and a respected member of the community, who is active in his church and community activities. He displays remorse and contrition over his earlier conduct.
An applicant for a licence is not required to have led a life of unblemished rectitude before lodging an application. The focus must be on public safety and the proper working of the regulatory scheme. The applicant has not been convicted of any offence for 18 years and since the discontinued IAVO in 2013, no conduct adverse to him has been recorded in any jurisdiction. He has no record of drugs or alcohol abuse, or any associations with criminal elements. During the eight years in which he held his ABH firearms licence, he was never the subject of any finding adverse to his fitness or to the safety of the public. The respondent submitted that little weight could be placed on that last point as he had never been required to undergo a safe storage inspection. There is no cogent reason to believe, however, that he would have failed such an inspection.
In a case such as this one, a balancing exercise is required. My view is that on the totality of the evidence the applicant is a fit and proper person to hold a firearms licence. Because of the doubts remaining over the excavator transaction the issue may be finely balanced, but I conclude that the applicant overall satisfies the fitness and propriety test.
The respondent submitted in relation to the public interest issue that the tribunal is required to look at the applicant's conduct as a whole, including potential future conduct. In that regard, an applicant's past conduct was a significant guide in assessing future conduct: Ford v Commissioner of Police [2022] NSWCATAD 87, [59]. From that perspective, the evidence in relation to fitness and propriety, and the importance of the integrity of the firearms licensing system as referred to in Constantin, the tribunal should be satisfied, the respondent contended, that it would not be in the public interest for the applicant to continue to hold the licence.