Haidar -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 81

CITATION: Haidar -v- Commissioner of Police, New South Wales Police Service [2003] NSWADT 81 DIVISION: General Division APPLICANT PARTIES: Nicholas Haidar RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 023225 HEARING DATES: 17/02/2003 SUBMISSIONS CLOSED: 02/17/2003 DATE OF DECISION: 04/28/2003

BEFORE: Connelly J - Judicial Member APPLICATION: Firearms Act - firearms licence - revocation of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Firearms (General) Regulation 1997 Firearms Act 1996 CASES CITED: Cusamano v Commissioner of Police, NSW Police Service (2001) NSWADT 50 APPLICANT REPRESENTATION: R Nicol, barrister RESPONDENT C Capper, solicitor ORDERS: 1. The decision of the Commissioner of Police to revoke Mr Haidar's firearms licence is set aside.

Background 1 On 4/10/02 the applicant Mr Haidar filed with the Administrative Decisions Tribunal ("the Tribunal") for review of a decision, made by a delegate of the Commissioner of Police ("the Commissioner'), to revoke his category H firearms licence. An internal review of this decision had affirmed the Commissioner's original decision. 2 Mr Haidar's application was made pursuant to s.75(1)(c) of the Firearms Act, 1996 and s.38 of the Administrative Decisions Tribunal Act, 1997 (the "ADT Act'). 3 The issue for determination before the Tribunal is whether the Commissioner's delegate made the correct and preferable decision having regard to any factual material and any written and unwritten law (s63 of the ADT Act). Relevant legislation 4 The Firearms Act (the "Act') sets up a scheme for licensing people in NSW to possess and use firearms. The principles and objectives of the Act are set out in section 3 of the Act as follows: 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 of firearms, and c) to facilitate a national approach to the control of firearms. 2. The objects of this Act are as follows: … (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm… 5 Section 11 (3)(a) of the Act 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 possess firearms without danger to public safety or to the peace. 6 Pursuant to s.24 of the Act a licence may be revoked on a number of grounds, including for a breach of the Act or Regulations and if the Commissioner is of the opinion that the licensee is no longer a fit and proper person to hold a licence. 7 Clause 17 of the Firearms (General) Regulation 1997 (the "Regulations") provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for a person to whom it is issued to continue to hold it. Background to revocation 8 The Commissioner of Police revoked the applicant's gun licence pursuant to clause 17 of the Regulations. 9 It was alleged that on 7/2/01 at Doonside Mr Haidar discharged his firearm in a public place. EVIDENCE Commissioner of Police Detective Senior Constable Paul Sawczenko 10 Detective Senior Constable Paul Sawczenko (DSC Sawczenko) gave evidence in accordance with his statement dated 19/12/02. 11 Shortly after 9pm on the evening of 7/2/01 police were called by concerned locals who thought they heard gunshots. Constable Smith and Constable Lawless were the first officers on the scene. Constable Smith took statements from a number of people. DSC Sawczenko attended the scene at approximately 9.40pm on 7/2/01. Mr Haidar told him that he hadn't fired the gun. He seized Mr Haidar's gun and 2 loaded magazines. 12 The surrounding area was cordoned off and searched by police. DSC Sawczenko then called in a canine to search the area. The canine searched the area and Mr Haidar's car but gave no indication that it had found anything. The dog did not sniff the gun in question. No spent cartridges were found in the area, on Mr Haidar's person or in his car. 13 Mr Haidar then accompanied DSC Sawczenko to Blacktown police station where he was interviewed and swabs were taken of his hands. 14 The next day Mr Haidar attended the police station and handed in a Glock pistol, 2 empty magazines and a firearms licence. 15 On 28/8/02 DSC Sawczenko received a report from Stephanie Bull of the Forensic Services Group. This report said that traces of gunpowder residue had been found on Mr Haidar's hands. Russell Kirkland 16 Russell Kirkland gave evidence in accordance with his statement of 17/12/02. 17 Mr Kirkland said that on 7/2/01 he was at the Doonside Neighbourhood Cottage attending a meeting of the Blacktown Camera Club. Between 9.00pm and 9.30pm he heard 2 loud sharp bangs which he thinks were gunshots. Mr Kirkland was in the second World War and says that he is familiar with the sound of a gunshot and that this is what he heard. He heard a lot of noise on the night but did not see anything. 18 Under cross examination Mr Kirkland said that whilst he couldn't be sure that it was a gun shot he was sure that it wasn't a car backfiring. Bill McNeill 19 Bill McNeill gave evidence in accordance with his statement of 17/12/02. 20 Mr McNeill said that he was attending the same meeting as Mr Kirkland. At approximately 9pm he heard a sound he thought to be a gunshot. He opened the door of the Neighbourhood Cottage and went outside. He heard people shouting at each other and rocks being thrown. He then heard another sound like a gun shot coming from his left. He looked left and saw a male wearing a security guard uniform and another male standing together. He saw the security guard bring his arms down from shoulder height and place them by his side. He then called the police. Mr McNeill is sure the sounds were gunshots as he used to live near Blacktown Pistol Club and is familiar with the noise. 21 Under cross examination Mr McNeill conceded that the noises may have been a car backfiring. When he first saw the person he believed to be the security guard he was standing approx 20-25 feet away from him. He didn't see a fire flash, a gun holster on the belt or a gun being fired. The uniform being worn by the person he saw was a white shirt and dark trousers – he did not see any emblems on the uniform. 22 In addition to the above oral evidence the Tribunal took into account all the evidence which had been previously filed at the Tribunal and which was tendered in evidence at the hearing. This included the following documents: Brief of evidence; Statements of Paul Sawczenko, Bill McNeill and Russell Kirkland referred to above; Transcript of Mr Haidar's record of interview on 8/2/01; Certificate of Expert Evidence by Stephanie Bull; Various photos. Applicant's evidence Nicholas Haidar 23 Mr Haidar gave evidence in accordance with his statement of 29/1/03. 24 Mr Haidar said that at about 8.50pm on the night in question he had asked 2 males to leave the shopping centre where he was working as a security guard. He was wearing his uniform of a mid blue shirt with black trousers. He escorted the 2 men to the fence between the shopping centre and the community centre. The men were arguing with him about being barred from the Centre and a fight broke out. One of the men pushed Mr Haidar and Mr Haidar pushed him away. There was a short struggle and one of the men threw a brick at him. After that he walked away. During this time there a person on a skateboard in the vicinity and this person accompanied Mr Haidar back to the shopping centre. Mr Haidar now knows this person to be Simon Shipton. 25 Mr Haidar says that he did not discharge his firearm at any time. A short time later the police arrived. DSC Sawczenko asked Mr Haidar to take his firearm out of its holster, make it safe and hand it to him. Mr Haidar did this. He says that he handed the Detective 31 rounds of ammunition – the same number as had been handed to him that night prior to the commencement of his duties. 26 The police searched Mr Haidar, the surrounding areas and Mr Haidar's car. No spent cartridges were found. 27 A short time later a police sniffer dog arrived. The dog sniffed the applicant's gun, his person, his car and then the surrounding areas. At no time did the dog give any indication that it had detected anything. 28 Mr Haidar was taken to Blacktown Police Station where he declined to be interviewed. "I declined to be interviewed because it was now well after midnight and I had been held by the police since about 9.30pm. I had told the police repeatedly that I had not discharged my firearm and they could not find any evidence to indicate that I had. I was upset at this stage, all I wanted to do was go home. In any case I was not released from the police station until about 1.20am" 29 Whilst at the police station Mr Haidar agreed to have his hands tested for traces of gunpowder residue. He was informed that his security industry and firearms licence were both suspended. His Glock pistol was also seized. 30 The next day Mr Haidar handed in his own guns and was given back his security industry licence. 31 Mr Haidar's gun was never tested to determine whether or not it had been fired. He was later told that testing had revealed that traces of gunpowder residue had been found on his hands. Mr Haidar says that this would be because he had been shooting at the Blacktown Pistol Club on 6/2/01. He did not however sign the attendance book for that day. 32 Mr Haidar had worked in the industry for 12 months prior to this incident and had never been notified of a complaint against him. In addition he works mostly alone and at night and is required to carry a firearm. He does not have a criminal record. He needs his firearms licence returned. 33 In addition to the above oral evidence the Tribunal took into account all the evidence which had been previously filed at the Tribunal and which was tendered in evidence at the hearing. This included the following documents: Application to Tribunal; Drawing of the crime scene; Statement of Nicholas Haidar referred to above; Statement of Simon Shipton undated; Various photos. Submissions 34 Mr Capper for the Commissioner of Police submitted that the Commissioner had made the correct and preferable decision in revoking Mr Haidar's firearms licence. Mr Haidar had breached the Firearms Act by discharging his firearm in a public place and it was not in the public interest for him to hold a firearms licence. 35 He said that the Tribunal should be satisfied on the balance of probabilities that the act was committed. Although Mr Haidar had not been charged there was a strong circumstantial case against him. Mr McNeill and Mr Kirkland heard a gunshot and Mr McNeill saw a movement of hands suggestive of a gun just having been fired. In relation to the description of the uniform worn by the security guard Mr McNeill said he saw it is possible that as a result of the lights Mr McNeill was unable to distinguish a light coloured shirt from a white shirt. 36 Mr Nichol for Mr Haidar said that was not one skerrick of evidence against him. There was no evidence of him having fired a gun despite extensive searches on the night. He said that Mr Kirkland's evidence didn't add anything and that Mr McNeill didn't see a gun or a muzzle flash. The person Mr McNeill said he saw making the arm movement was wearing a white shirt and Mr Haidar's shirt on the night in question was blue. The arm movements he says he saw are consistent with Mr Haidar's evidence of pushing and shoving. In addition there was an eyewitness available to the police – Simon Shipton, whom the police did not contact to provide a statement. Mr Shipton's statement corroborated Mr Haidar's version of events. Reasons and Decision 37 The principles of the Firearms Act are that the possession and use of a firearm is conditional on the overriding need to ensure public safety. 38 Section 24(2) of the Act sets out the circumstances in which the Commissioner may revoke a person's firearms licence but does not provide any guidance as to how that discretion should be exercised in each case. In Cusamano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at paragraph 23 the Deputy President said that "the discretion should be exercised in a way which promotes the principles and objects of the Act" 39 The basis for the Commissioner's decision to revoke Mr Haidar's licence is his belief that Mr Haidar discharged his firearm in a public place. Although there were no eyewitnesses to this and no evidence of any kind found, despite extensive searches by police and a sniffer dog, the Commissioner says that the Tribunal would be satisfied on the balance of probabilities that this event had in fact taken place. The Commissioner relies on the evidence of 2 witnesses who say they heard what they thought was a gunshot. One of the witnesses also saw a hand movement consistent with a gun being fired. In addition, after testing, Mr Haidar was found to have gunpowder residue on his hands. 40 I do not accept that there is any evidence that would lead the Tribunal to form the view that Mr Haidar had discharged his firearm on the night in question in the manner alleged. A thorough search of the area, his person and his car by police officers and a sniffer dog failed to find any trace of gunpowder, spent cartridges or any other indication that he had discharged a firearm. I cannot be sure what Mr Kirkland and Mr McNeill heard and saw but I do not accept that their evidence supports the Commissioner's case to the extent that would be necessary to justify his decision. 41 The only evidence presented by the Commissioner that concerns me is the report of Stephanie Bull which says that gunpowder residue was found on Mr Haidar's hands. However it is significant that on the night the sniffer dog did not react to the gun or Mr Haidar's person and that the gun itself was never tested. On balance, and notwithstanding Mr Haidar's failure to sign in, I accept the applicant's explanation for the residue which was that he had been shooting at Blacktown Pistol Club on 6/2/01. 42 Taking all the evidence into account I find that the correct and preferable decision is to restore the applicant's gun licence to him. I do not find that Mr Haidar has breached any part of the relevant Act or Regulations and do not consider that the public interest is compromised by the setting aside of the Commissioner's decision. 43 Accordingly I make the following order: 1. The decision of the Commissioner of Police to revoke Mr Haidar's firearms licence is set aside.