Nohra v Commissioner of Police, NSW Police Service [2002] NSWADT 239 (21 November 2002)

Last Updated: 28 February 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Nohra v Commissioner of Police, NSW Police Service [2002] NSWADT 239

PARTIES: APPLICANT

Anthony Nohra

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 023139

HEARING DATES: 14/08/02

SUBMISSIONS CLOSED: 14/08/2002

DECISION DATE: 21/11/2002

BEFORE: Montgomery S - Judicial Member

LEGISLATION CITED: Firearms (General) Regulation 1997

Administrative Decisions Tribunal Act 1997

Firearms Act 1996

CASES CITED: Osborne v The Commissioner of Police [2000] NSW ADT AP 10

Tolefoa v COP (2000) NSWADT 9

Nohra v Commissioner of Police, New South Wales Police Service [2001] NSWADT 15

Blair v Curran [1939] HCA 23; (1939) 62 CLR 464

Lambidis v Commissioner of Police (1995) 37 NSWLR 320

Mouwad -v- Commissioner, New South Wales Police Service [2002] NSWADT 226

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11

APPLICATION: Firearms Act - firearms licence - revocation of licence or permit

Firearms licence - revocation of licence or permit

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: T Shulze, counsel

RESPONDENT REPRESENTATIVE: D Paterson, solicitor

ORDERS: 1. The Commissioner's decision to revoke Mr Nohra's Category AB firearms licence is affirmed.

Reasons for Decision:

Background

1 These proceedings relate to a decision by the Commissioner of Police, New South Wales Police Service ("the Commissioner") to revoke the firearms licence held by Mr Anthony Nohra.

2 Mr Nohra was issued with a Category AB firearms licence on 13 December 2001. The Commissioner subsequently concluded that the licence had been issued in error and he on 14 February 2002 he decided to revoke the licence. On 11 March 2002 Mr Nohra applied for an internal review of the decision to revoke the licence. The Internal review was undertaken by a delegate of the Commissioner and was finalised on 12 April 2002. The decision was taken that the Commissioner's decision to revoke Mr Nohra's category AB firearms licence is to stand. The Commissioner's delegate gave detailed reasons for the decision and Mr Nohra was notified of the outcome of the review and those reasons.

3 In so far as they are relevant to these proceedings, those reasons provided:

D. REASONING PROCESS:

The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to revoke a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you and your solicitor in support of your application.

After fully and independently considering all relevant matters I make the following fresh determination.

In 1996, the government enacted "tough new gun laws."1 One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms, and by promoting the safe and responsible storage of firearms.2

In considering your request for an internal review I have given careful consideration to your submissions as outlined in your Statutory Declaration and to those submitted by your solicitor, Mr Morgan. I have then weighed those submissions against the principles and objectives of the Act (as outlined above) together with the reasons of the ADT (handed down on 7 February 2001) in affirming the Commissioner's refusal of your previous application for a firearms licence.

On balance, I am of the opinion that in the time that has passed since the ADT affirmed the refusal of your application for a firearms licence in February of 2001, your circumstances throughout that time have not greatly altered to the extent that would now entrust the Commissioner and the general community alike with confidence with respect to you as a licensee.

I hold this view, despite the fact that you have not come to adverse notice since the time of your convictions and despite the fact that you are a businessman and family man, fathering two children.

This is because the fact remains that the nature of the offence in which you participated, whilst occurring 10 years ago, was gravely serious and, which involved threatening members of the public with a firearm over a drug related incident.

Not a Fit and Proper Person

In considering an individual's right to be granted a licence under the Act I have formed the view that any decision should be made on the basis that the legislation imposes a duty upon the Commissioner not to issue a licence unless he is satisfied that the applicant is a fit and proper person and can be trusted to possess and use firearms.3

Your participation in the abovementioned offences remains to raise concern about your fitness as an individual to be entrusted with the privilege of possessing and using firearms safely. I note that you make mention of the fact that your involvement in the offences was by way of common purpose rather than as a primary offender. This, in my view, is irrelevant. It seems to me that you willingly participated in an offence whereby a firearm was produced to threaten the life of a member of the public.

I note that in sentencing you for the offences the presiding Judge imposed a significant fine and a lengthy community service.

Moreover, and importantly, the Deputy President of the ADT in determining the Commissioner's refusal of your previous application was satisfied that despite the role you played when committing these offences and the fact that these offences occurred over 10 years ago the circumstances of the offences remained to raise serious questions about whether you could be trusted to use firearms safely.4

Regarding the issue of 'fit and proper' the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. This list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.5

When considering this view, I am satisfied that improper conduct has occurred and it would not be unreasonable to believe that the general community could not be confident of such conduct reoccurring.

His Honour, Justice Walters states that in his view "any previous breaches of the law, and any propensity towards offending against the law must be regarded as of crucial importance.''6

In the Appeal Panel matter ofOsborne v The Commissioner of Police [2000] NSW ADT AP 10 the Tribunal made a general comment in relation to the scope and intention of the act and the proliferation of firearms in the community generally:

"The narrower view should, we consider, be preferred. The purpose of the legislation is to reduce the use and possession of firearms in the community."

They went on to say that if a broader view were to be taken that would lead to a greater number of firearms circulating in the community and that "such an interpretation would defeat the objects of the legislation."

Therefore, notwithstanding your submissions, the Act provides for "strict controls" on the possession and use of firearms and it is in the context of this legislation that I have made the decision that you are not a fit and proper person to hold a firearms licence at this time.

Not in the Public Interest

When considering the issue of whether it is in the public interest for you to hold a firearms licence I have given substantial weight to the underlying principles of the Act, which is to confirm that firearm possession and use is a privilege conditional on the overriding need to ensure public safety.7 In addition, in the Second Reading speech on 25 June 1996 relating to the Act The Hon Mr J W Shaw (Attorney General) said, (at 3557): "The legislation puts the public's right to safety before the privilege of gun ownership."

Therefore, when considering the facts of the offence of which you partook it can be clearly seen that you acted in direct contravention to the principles of the Act and further, that the purpose of firearm legislation is to remove the opportunity for these types of offences to occur.

Furthermore, despite the fact the offences occurred 10 years ago and that you submit you have now proved yourself trustworthy, having been rehabilitated by due process, I am satisfied that because of their degree of seriousness, I would find it difficult to convince the public that you could be trusted to possess and use firearms safely.

As stated above, the revocation of your firearms licence, I believe, hinges on the fact that the community could not be confident that public safety would not be jeopardised should you be given the privilege of holding a firearms licence. Therefore, even if I were to accept that you are now of good character, the issue of public interest is operated in the absence of character defects with respect to exercising discretion adversely to an individual. I refer to Tolefoa v COP (2000) NSWADT 9, which provides:

"(Public interest) is an inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the parliament intended the public interest discretion to operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant objection."

I do accept that you were incorrectly led to believe that you had satisfied Registry requirements when making your application in that you were issued with a Category AB firearms licence on 13 December 2001. However, this is readily admitted by the Registry as an error and once detected was quickly rectified.

This licence was issued for the genuine reasons of 'Target Shooting' and 'Recreational Hunting', thus for individual recreational activities. When considering an individual's interest in comparison to that of the interest of the public it has been held that the public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.8

Consequently, in determining whether or not the Registry (acting as the Commissioner's delegate) made the correct and preferable decision in exercising his discretion to revoke your licence I refer to the decision of Cusumano v COP where the Administrative Decisions Tribunal held at Para 23:

"There is no guidance in the legislation in relation to how these discretions should be exercised. In my view the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act."

Taking this into account, I am satisfied, for the reasons outlined above that the Commissioner has exercised his discretion in a way that promotes the principles and objects of the Act in revoking the firearms licence that was issued in error.

Lastly, public interest in the context of Clause 17 of the Firearms (General) Regulations 1997, requires paramount consideration be given to public safety.

E. DECISION:

The Commissioner's decision to revoke your category AB firearms licence is to stand.

1 Second Reading Speech, Hansard, 25 June 1996, Legislative Council, page 3557

2 Firearms Act 1996, Section 3(1)(b)

3 Firearms Act 1996, Section 11(3)(a)

4 Nohra v The Commissioner of Police NSW ADT (2001)

5 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380

6 Sobey v Commercial Private Agent's Board (1979) 22 SASR 70 at 75

7 Firearms Act 1996, Section 3(1)(a)

8 DPP v Smith (1991) 1 VR 63"

4 On 27 June 2002 Mr Nohra lodged an application for a review of the decision with this Tribunal. The matter was listed for hearing on 14 August 2002 and proceeded on that day.

Threshold Issue

5 As noted in the passages quoted above from the reasons provided following the internal review of the decision, Mr Nohra had previously brought an application to the Tribunal in relation to a decision by a delegate of the Commissioner to refuse Mr Nohra's application for Category A and B firearms licences ("the February 2001 matter"). The firearms matter was heard and determined by the Tribunal's Deputy President. The Deputy President's decision dated 7 February 2001 is cited as Nohra v Commissioner of Police, New South Wales Police Service [2001] NSWADT 15.

6 Ms Paterson for the Commissioner argued that the Tribunal is estopped from hearing this matter as a consequence of the Deputy President's decision in the February 2001 matter. I accepted that argument and gave brief ex tempore reasons for my decision. More detailed reasons for that decision are now provided.

The Commissioner's argument on the threshold issue

7 Ms Paterson argued that the issues before the Tribunal are the same issues which were determined by the Deputy President's decision in the February 2001 matter. The decision to revoke Mr Nohra's firearms licence relates to the same events and convictions as the decision to refuse Mr Nohra's firearms licence application. The grounds for the decision in the February 2001 matter and the grounds for the revocation in the present matter are the same. Those grounds are that Mr Nohra is not of fit and proper character to hold a firearms licence and that it is not in the public interest for Mr Nohra to hold the licence. In her reasons for decision in the February 2001 matter the Deputy President squarely dealt with the issue of whether Mr Nohra is of fit and proper character to hold the licence. The relevant passage from her reasons for decision states:

"16 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In this case, Mr Nohra cannot be afforded that privilege unless there is sufficient evidence to satisfy the Tribunal that, despite the circumstances of the offence, he does not pose a risk to public safety.

17 In the absence of any such evidence, I am satisfied that the Commissioner made the correct decision in refusing his application for firearms licences on the ground that he is not a fit and proper person and cannot be trusted to have possession of firearms without danger to public safety or to the peace.

18 The second submission on which the Commissioner relied was that a licence may be refused if the Commissioner considers that it is not in the public interest for the person to hold it. Having come to the view that the Commissioner made the correct and preferable decision to refuse Mr Nohra's licence it is not necessary for me to determine whether the decision was also justified on other grounds.

8 Ms Paterson referred to the decision of the High Court in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 as authority for the principle that the Tribunal is estopped from hearing any issues that were determined by the Deputy President in the February 2001 matter.

9 She submitted that to allow Mr Nohra to argue issues that were previously considered by the Deputy President would be to allow him to circumvent the Tribunal's procedures. The correct approach would have been for Mr Nohra to appeal the Deputy President's decision. He did not do so and should not be allowed to use this forum to argue the issues.

Mr Nohra's argument on the threshold Issue

10 Mr Shulze conceded that the Deputy President's decision in the February 2001 matter considered similar issues to those raised in the present matter. However he argued that an estoppel can not apply because Mr Nohra's evidence was never presented in the February 2001 matter. The Tribunal has not had the benefit of that evidence and therefore has not taken it into account.

Decision on the threshold Issue

11 Dixon J defined the essence of the doctrine of issue estoppel in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464 at 531:

"A judicial determination directly involving an issue of fact or of law disposes once and for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion."

12 The NSW Court of Appeal decision in Lambidis v Commissioner of Police (1995) 37 NSWLR 320 is authority for the principle that the decision of a State administrative tribunal may give rise to an issue estoppel if the same issue is raised in later litigation. I considered this issue in some detail in my reasons for decision in the matter of Mouwad -v- Commissioner, New South Wales Police Service [2002] NSWADT 226. It serves no purpose to revisit the issue here. In Lambidis Kirby P stated at pages 323-4:

"If the parties have litigated to conclusion, before a quasi judicial body with statutory power to make a decision binding between them, an issue subsequently relevant to later proceedings between them ... the "real merits and justice of the case" will include the real merits and justice of preventing the re-litigation of a matter already determined. ... Parties may not be twice vexed with litigation of issues that have been determined, or ought reasonably to have been determined, by a body constituted by law with the jurisdiction to decide the point finally between them."

13 In my view the principles espoused by Kirby P in Lambidis are applicable to this Tribunal. I cannot accept that it is significant that Mr Nohra's evidence was never presented in the February 2001 matter because this matter relates to "issues that have been determined, or ought reasonably to have been determined". The Deputy President determined the issue of whether Mr Nohra is of fit and proper character to hold a firearms licence and had it been necessary would have determined the issue of whether it is in the public interest for Mr Nohra to hold the licence. The Tribunal has therefore disposed of those issues and in the absence of some intervening factor they cannot be re-litigated.

14 In Lambidis Kirby P further observed at page 328-9:

"Perhaps it should be noted that this is not a case in which it was ever alleged that something had occurred between the first decision and the second hearing which altered the facts or which warranted a different approach on the second occasion. Where that occurs it may provide a ground for a re-opening of the first decision, depending on the powers of that court or tribunal. But it cannot affect any estoppel arising out of the lawful determination of the first proceedings whilst the determination stands."

15 In my view an estoppel arises with respect to the issues which were previously before the Tribunal in the February 2001 matter. An appeal process was available to Mr Nohra to address any issues which arose from the Deputy President's decision that matter. It is not appropriate that they be pursued in this matter.

16 Having formed that view, the parties were advised of the decision and brief reasons were given. I determined that no evidence would be admitted in relation to issues that could have been raised in the February 2001 matter. However, I permitted evidence in relation to circumstances which occurred following the February 2001 matter.

Evidence

17 The New South Wales Police Service's file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner did not call any witnesses in support of his case.

18 Mr Nohra presented oral evidence in support of his case as did his wife, Ms Raylyn Nohra. Mr Nohra provided a Statutory Declaration in which he referred to his convictions and his personal circumstances. He also relied on several testimonials referring to his good character. The authors of those testimonials were not called to give evidence at the hearing.

Mr Nohra's case and Submissions on his behalf

19 Mr Nohra gave evidence consistent with the details provided in his a Statutory Declaration. His evidence is that he is a cabinetmaker and works in various country locations. He has conducted his own business since 1994. He employs four workers and a number of subcontractors. He has responsibility for the business and finances associated with the business. Mr Nohra is married with two children - a three-year-old daughter and a 16 months old son. He works long hours in the business, six days per week. His leisure time is spent mostly with family. He is purchasing his own home.

20 Mr Nohra applied for a firearms licence so that he can shoot on his father-in-law's property. His father-in-law, Mr Ray Pemberton, provided a testimonial on behalf of Mr Nohra and confirmed that he had invited Mr Nohra to shoot on his property.

21 Ms Raylyn Nohra gave evidence that her husband works six to seven days per week. She said that his social life is largely limited to family functions. She stated that Mr Nohra is an excellent father and husband. She is aware of Mr Nohra's criminal record but states that he is now a responsible person.

22 Ms Nohra stated that her husband has had the same employees of the past 18 months. He works in a number of different areas and has a good reputation.

23 Mr Shulze submitted that Mr Nohra is a changed man from when his convictions were recorded. He is an outstanding member of the community. He is a family man with a good reputation and is a fit and proper person to hold a licence. It is not against public interest for him to do so.

The Commissioner's case

24 Ms Paterson relied on the documents contained within the Police Services' file. She did not seek to challenge any of evidence given on behalf of Mr Nohra. However, she argued that with the exception of the addition of a second child to Mr Nohra's family, no significant events have occurred since the Deputy President's decision in the February 2001 matter. Therefore, the Tribunal should conclude that the Commissioner's decision to revoke Mr Nohra's licence was the correct and preferable decision.

Findings

25 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues:

(a) Mr Nohra's record of convictions;

(b) Mr Nohra's evidence in relation to his character and personal circumstances;

(c) Mr Shulze's oral submissions in relation to Mr Nohra's character and personal circumstances;

(d) the testimonials provided on Mr Nohra's behalf; and

(e) the potential consequences of the decision to revoke Mr Nohra's licence.

26 The relevant provisions of the Firearms Act 1996 are found in sections 11 and 24 of that Act. Clause 17 of the Firearms (General) Regulation 1997 is also applicable. As so far as they are relevant to these proceedings those sections and clause provide:

"11 General restrictions on issue of licences

(1) The Commissioner may issue a licence in respect of an application, or refuse any such application.

(2) A licence must not be issued until after the end of the period of 28 days following the day on which the application is made.

(3) A licence must not be issued unless:

(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, ...

(5) A licence must not be issued to a person who:

(a) is under the age of 18, or

(b) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(c) is subject to an apprehended violence order or who has, at any time within 10 years before the application for the licence was made, been subject to such an order (other than an order that has been revoked), or

(d) is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, or

(e) is subject to a firearms prohibition order.

(7) The Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest."

"24 Revocation of licence

(2) A licence may be revoked:

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence,"

24 Revocation of licence

(1) A licence that authorises a person to possess or use a firearm is automatically revoked if the licensee becomes subject to a firearms prohibition order or an apprehended violence order.

(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

...

(c) if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence, or

(d) for any other reason prescribed by the regulations."

27 Clause 17 of the Firearms (General) Regulation 1997 provides:

"17 Revocation of licence - additional reasons

In accordance with section 24 (2) (d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is issued to continue to hold it."

28 The Commissioner has identified Mr Nohra's convictions. Mr Nohra must show that in spite of that history he is a fit and proper person to hold a licence.

29 The assessment of whether a person is a "fit and proper" person to hold a firearms licence was discussed in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 94 ALR 11. Toohey and Gaudron JJ at 65 stated that:

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

30 One of the objects of the Act, as set out in s 3, is "to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety." In determining whether Mr Nohra is a fit and proper person to hold a licence consideration must be given to the circumstances surrounding his conviction. The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Nohra would not pose a risk to public safety if he had access to firearms.

31 The Deputy President took these factors into account in reaching her decision in the February 2001 matter. I accept Ms Paterson's argument that since that decision there has been little change that is relevant to these proceedings.

32 Mr Nohra gave evidence as to his reputation but his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. To that end, Ms Nohra gave evidence and Mr Nohra produced a number of testimonials that attest to his reputation and character.

33 A witness's opinion of Mr Nohra may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. With the exception of Ms Nohra, none of the testimonials make reference to the witness's knowledge of any of the circumstances which have lead to the decision to revoke Mr Nohra's licence. A possible exception may apply in regard to the testimonial provided by a serving Police Officer in that it is possible he would have been aware of Mr Nohra's convictions. If that is the case, the testimonial makes no reference to that being the case. Nor do the testimonials make any direct reference to these proceedings. They cannot therefore be seen as positive estimations in spite of knowledge of Mr Nohra's blemished history. It follows that little weight can be given to those testimonials in assessing Mr Nohra's reputation.

34 While the available evidence has some weight, in the face of his convictions, and the decision of the Deputy President in the February 2001 matter, it is insufficient to establish that he is of good repute.

35 The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk. In my view, the reasons for decision following the internal review which I have quoted above provide an accurate statement of the law and a reasonable assessment of the factors to be considered. Taking account of the competing considerations, I cannot be satisfied that Mr Nohra poses virtually no risk to public safety. It follows in my view that the correct and preferable decision is to revoke his firearms licence. Accordingly I affirm the Commissioner's decision to revoke Mr Nohra's firearms licence.

36 I note however that I have formed this view on the evidence before me. It is possible that Mr Nohra could obtain a psychiatric or psychological report giving clear evidence of his psychological stability and could satisfy the Commissioner that he is a fit and proper person to hold a firearms licence and that he poses virtually no risk to public safety. If that is the case and if Mr Nohra were to reapply for firearms licences, the Commissioner may well reach a different conclusion.

Orders

37 The Commissioner's decision to revoke Mr Nohra's Category AB firearms licence is affirmed.