Helou v Commissioner of Police, NSW Police Service [2003] NSWADT 124

CITATION: Helou v Commissioner of Police, NSW Police Service [2003] NSWADT 124 DIVISION: General Division APPLICANT PARTIES: Niaze Helou RESPONDENT The Commissioner of Police, New South Wales Police Service FILE NUMBER: 023279 HEARING DATES: 04/04/2003 SUBMISSIONS CLOSED: 04/04/2003 DATE OF DECISION: 05/29/2003

BEFORE: Higgins S - Judicial Member APPLICATION: Firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal Matter Administrative Decisions Tribunal Act 1997 Evidence Act 1995 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 Home Building Act 1989 Cook v Commissioner of Police, NSW Police Service (2003) NSWADT 30 Briginshaw v Briginshaw (1938) 60 CLR 336 at 363 Kioussis v Director General, Department of Fair Trading (2002) NSWADT 2 CASES CITED: Whiteman v Commissioner of Police, NSW Police Service (2002) NSWADT 179 Ward v Commissioner of Police, NSW Police Service (2000) NSWADT 28 Police v Toleafoa (1999) NSWADTAP 9 O'Sullivan v Farrar (1989) 168 CLR 210 APPLICANT REPRESENTATION: B Haverfield, Barrister RESPONDENT C Capper, Solicitor ORDERS: 1. The Commissioner's decision to revoke Mr Helou's category A, B and H firearms licence is affirmed.

BACKGROUND 1 On 9 December 2002, Mr Niaze Helou, lodged an application with the Tribunal seeking review of the decision, made by a delegate of the Commissioner of Police ("the Commissioner"), to revoke his category A, B and H firearms licences. 2 The basis on which the Commissioner revoked Mr Helou's firearms licence was an incident that occurred on Monday 23 October 2000 when the police detained a Mr Bols and found that he was carrying a loaded Smith & Wesson .357 magnum revolver in a holster attached to his belt in the small of his back. The revolver was registered in the name of Mr Helou and Mr Bols was not the holder of a firearms licence. Following a police enquiry into the incident, on 19 March 2001, the police charged Mr Helou with an offence of not keeping his firearms safely, and a charge of allowing an unauthorised person to possess a firearm. 3 The hearing relating to the charges made against Mr Helou were heard almost 2 years later, at the Local Court at Bankstown, on 4 June 2002. The charge in respect of failing to keep his firearms safely was not proceeded with. However, on that day, the Magistrate hearing the matter dismissed the remaining charge that had been laid against Mr Helou. 4 On 23 August 2002 the Commissioner issued and served a Notice of Suspension of Mr Helou's firearms licences. In that Notice of Suspension the Commissioner stated that in his opinion the licences held by Mr Helou should be revoked on the grounds that he was not a "fit and proper person" to hold a firearms licence and that it was "not in the public interest" for him to hold such licences. On this date Mr Helou surrendered his licences and signed over his four registered firearms to the South Western Sydney Firearms Range for acquisition. 5 On 27 September 2002, the Commissioner issued a revocation notice to Mr Helou in respect of his firearms licences. The grounds on which the licences were revoked were stated to be as follows: (a) the Commissioner considered that it was not in the public interest for Mr Helou to continue to hold the licences (clause 17 – Firearms (General) Regulation 1997 ); and (b) Mr Helou had contravened a provision of the Firearms Act (section 24(2)(b)(ii) Firearms Act). In this regard the Commissioner found that Mr Helou had failed to take all reasonable precautions to ensure that his firearms did not come into the possession of a person who was not authorised to possess the firearms (section 39(1)(c) Firearms Act). 6 After being served with the Notice of Revocation, Mr Helou sought an internal review. On 4 November 2002, the Commissioner completed his internal review and affirmed the earlier decision. In the statement of reasons, the Commissioner only relied on the grounds that he considered that it was "not in the public interest" for Mr Helou to continue to hold the licences with which he had been issued. JURISDICTION 7 The Tribunal has jurisdiction to hear Mr Helou's application by virtue of s.75(1)(c ) of the Firearms Act, 1996 ("The Firearms Act"), and s.38 of the Administrative Decisions Tribunal Act, 1997. RELEVANT LAW 8 The Firearms Act sets out a scheme for licensing people to possess and use firearms. The principles and objectives of the Act are set out in s.3. So far as is relevant, this section provides as follows: "3 Principles and objectives of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and …………" 9 Section 24 sets out the circumstances in which the Commissioner can revoke a licence. That section, so far as is relevant, provides as follows: "24 Revocation of licence (1) … (2) a licence may be revoked: (a) …, or (b) if the licensee: (i) …. (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) …, or (c) …. (d) for any other reason prescribed by the regulations". Safe Storage 10 Section 40 of the Firearms Act sets out the requirements for the safe keeping of a firearm to which a category AB licence applies when the firearm is not actually being used or carried. Section 41 of the Firearms Act sets out the safe keeping requirements for the safe keeping of a firearm to which a category C, D and H licence applies. Each of these sections prescribe the type of receptacle the firearm is to be stored in and the type of lock the receptacle is to contain. 11 A failure to comply with the abovementioned safe keeping requirements constitutes an offence, which is punishable by a fine and a maximum term of imprisonment (ss. 40(2) and 41(2) Firearms Act). Contravention of the Firearms Act 12 Section 39(1)(a) of the Firearms Act provides that a person who possesses a firearm must take all reasonable precautions to ensure its safe keeping. A person who contravenes the requirement contained in this section commits an offence, which is punishable by a fine and or a maximum period of imprisonment of 2 years. General requirement (1) A person who possesses a firearm must take all reasonable precautions to ensure: (a) its safe keeping, and (b) that it is not stolen or lost, and (c) that it does not come into the possession of a person who is not authorised to0 possess the firearm (2) The regulations may specify the precautions that are taken to be reasonable precautions for the purposes of this section. 13 No regulations have been made pursuant to s. 39(2) of the Firearms Act. Public Interest 14 Clause 17 of the Firearms (General) Regulations, 1997 prescribes the following in respect of s.24(2)(d) of the Firearms 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". EVIDENCE 15 Mr Haverfield, on behalf of Mr Helou, tendered into evidence the following material: The transcript of a record of interview between Mr Helou and Senior Constable Broome at Bankstown Police Station on 30 October 2000 The transcript of the Local Court proceedings of 4 June 2002. This transcript includes the examination-in-chief and cross-examination of Mr Helou, his father and Ms Wehbee; and A copy of the record of attendance of Mr Helou at the Great Western Pistol Club. 16 Mr Haverfield, who appeared on behalf of Mr Helou, also called Mr Helou to give evidence. 17 Mr Capper, on behalf of the Commissioner relied on the material contained in the brief of evidence that had been previously filed with the Tribunal and served on Mr Helou. Included in that brief of evidence was an extract of the Magistrate's decision in respect of the charges that had been laid against Mr Helou together with the submissions made on behalf of Mr Helou by his solicitor in respect of the internal review. 18 The following facts are not disputed: (a) Mr Helou lives at home with his parents and his brother and sister. (b) He is a motor mechanic and runs 1 of the 8 service stations owned by his father. (c) Mr Helou is the registered owner of two pistols and two rifles. In 1999, his father gave him his Smith & Wesson revolver, which he had owned for many years previously. (d) Mr Helou stored his rifles in a safe that was located upstairs in his bedroom and which was bolted to the floor. This particular safe complied with the requirements of the Firearms Act. Mr Helou was at all times the only custodian of the keys to this safe. (e) The pistols (including the Smith and Wesson revolver), to which the category H firearms licence related, were stored in an in-ground safe that was located downstairs in the walk in wardrobe of his parents. His parents had had this safe for 20-24 years and his father had previously used it to store his firearms. Access to that safe was gained by a key, which was stored in one of Mr Helou's socks that was located in the back of a drawer on his mother's side of the walk-in wardrobe. (f) Mr Helou and his father knew where the key was stored. (g) The safe, in which the pistols were stored, was also used to store family jewellery and money. (h) Mr Helou stored the ammunition for his pistols in a separate compartment in the safe, which contained his rifles. He also stored some ammunition in a metal suitcase that was located in his bedroom. (i) On Monday, 23 October 2000, at about 3.45pm, the police followed a white Toyota Lexus, driven by Mr Bols, to the Helou Service Station on the corner of Punchbowl Road and Canterbury Road. This service station is where Mr Helou father's office is located. Mr Bols had worked for Mr Helou's father for some considerable period of time and he was known to Mr Helou who had seen him at his home on several occasions. On 23 October 2002, when the police searched Mr Bols they found that he was carrying Mr Helou's Smith & Wesson revolver. Mr Bols was not licensed to carry such a revolver. 19 A fact in issue in this application and also before the Magistrate, who heard the criminal charges that had been laid against Mr Helou, was the question of how Mr Bols came to have possession of Mr Helou's revolver and whether Mr Helou knew or ought to have known that the circumstances surrounding the storage of the revolver were such that it would or may come into the possession of an unauthorised person, including his father and Mr Bols. 20 In this regard, it appears that Mr Bols, who participated in a record of interview on the day that he was searched, stated that Mr Helou's father had given him the revolver in his office just prior to him escorting Mr Helou's father's secretary to the Commonwealth Bank to do the banking for the business. 21 However, at the hearing before the Magistrate, Mr Bols stated that he had gone with Mr Helou's father to his home, where Mr Helou's father opened the safe located in the walk-in robe of his bedroom. He also stated that after Mr Helou's father opened the safe he asked Mr Bols to get out the money from the safe. He went on to state that while he was taking out the money he saw the revolver and took it without permission and without the knowledge of Mr Helou's father. 22 During the evening of 23 October 2000, the police returned to the Punchbowl service station of Mr Helou's father and spoke to him. The police state that during this conversation Mr Helou's father told them that he had given Mr Bols the loaded revolver so that he could escort his secretary to do the banking for the business. At the hearing before the Magistrate, Mr Helou's father denied that he had made such a statement. Instead, he stated that Mr Bols had contacted him that particular evening and told him that he had lied to the police during his record of interview and that he had in fact taken the revolver without Mr Helou's father's knowledge when he was asked to remove the money from the safe. Mr Helou's father, who had been the holder of a gun licence for almost 24 years, went on to state at the hearing before the Magistrate that, on 23 October 2000, he went with Mr Bols to his home to pick up the money that he had placed in the safe over the weekend, believing that his son had removed the revolver from it. He stated that he got the key from the sock, opened the safe and went into the bedroom and asked Mr Bols to take the money from the safe. He explained that the walk-in wardrobe was too small for two people at one time, particularly when one person was getting something from the safe. 23 In his judgment, the Magistrate hearing the charges that had been laid against Mr Helou and his father, made the following findings of fact in relation to the circumstances in which Mr Bols came to have possession of Mr Helou's revolver: "…I….find – that on 23 October Mr Hamid Helou did cause and knew that Fidel Bols accessed the pistol to escort money to the Bank. I am satisfied that he assisted in Mr Bols getting access to that pistol, whether that be – and I am not sure whether Mr Bols took it out of the safe himself or not – but I am satisfied that Mr Helou knew that he was getting this pistol, that it was for security purposes and that he was going to use it to escort this lady, Therese, to the bank. And I am satisfied that when Mr Bols was found with this pistol, that Mr Hamid Helou did say what he said to the police in circumstances that what he said to the police was the truth at the time". 24 That is, he found that Mr Helou's father had given the revolver to Mr Bols. Knowledge of Mr Niazi Helou 25 In a record of interview, on 30 October 2000, Mr Helou stated the following: On the evening of 23 October 2000, his father told him that Mr Bols had taken his revolver from the safe in the walk-in robe. The last time he used his revolver was when he attended the Great Western Pistol Club – this could have been the 18th or even the 4th of October. He attends the Pistol Club every second Wednesday. He gave no person permission to use his revolver, including his father. Since 23 October 2002, he had not checked either safe to see if any of his other firearms were missing. He had two pistols in the downstairs safe, a 22 Phoenix and the Smith & Wesson. His father had told him that the Phoenix was still in the safe. 26 When giving evidence before the Magistrate, on 4 June 2002, Mr Helou stated that on some occasions, his father would store takings from the service stations in the safe. He stated that when he did this, Mr Helou would take his pistols from the safe and store them at the Great Western Pistol Club, where he was a member.