CITATION: Nguyen v Commissioner of Police, NSW Police [2007] NSWADT 16 DIVISION: General Division APPLICANT PARTIES: Le Xuan Ninh Nguyen RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 053432 HEARING DATES: 05/04/06, 27/07/06 SUBMISSIONS CLOSED: 27 July 2006 DATE OF DECISION: 17 January 2007 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Firearms Act 1996 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 CASES CITED: Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 McDonald v Director General of Social Security (1984) 1 FCR 354 Sobey v Commercial and Private Agents Board 20 SASR 70 Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 APPLICANT In person REPRESENTATION: RESPONDENT T Venditti, Agent ORDERS: The Commissioner's decision to refuse Mr Nguyen a Category H firearms licence is affirmed. REASONS FOR DECISION 1 Mr Nguyen lodged an application for a Category H firearm licence for the genuine reason of employment as a Security Guard. A delegate of the Commissioner of Police refused the application and that refusal was affirmed on internal review. Mr Nguyen's application for a firearm licence is the subject of this application. 2 The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Commissioner and there is no presumption that the decision of the Commissioner is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.) 3 Mr Nguyen appeared at the hearing and gave evidence in support of his application. He was also subjected to cross-examination by Mr Venditti, who appeared on behalf of the Commissioner. The Commissioner relies on evidence of records maintained on the police Computerised Operational Policing System ('COPS'), the Integrated Licensing System ('ILS'); and the Firearms Management System ('FMS'). He also relies on statements of witnesses provided in relation to those records. 4 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997, the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure to some or all parties of evidence given before the Tribunal. 5 Mr Venditti sought to address the Tribunal in the absence of Mr Nguyen in relation to additional material, which, he submitted, was relevant to the proceedings. Mr Nguyen agreed to this application and given the potential relevance of the material to Mr Nguyen's application I agreed to hear from a witness and to consider the relevant material on a confidential basis pursuant to section 75 of the ADT Act. I have given weight to this confidential material. Any reference to that material is deleted from the published reasons. Those parts of the decision where the confidential material is discussed are identified as "Subject to suppression order". The Applicable Legislation 6 The Firearms Act 1996 ("the Act") sets up a scheme to license people to possess and use firearms. Section 11 of the Act provides in part: "11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (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, and … (5) A licence must not be issued to a person who: … (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 … (7) 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." 7 The provisions of the Firearms (General) Regulation 1997 ("the Regulation") though now repealed, are applicable for the purposes of sections 11(5)(b) of the Act. Regulation 5 provided: "5 Offences that disqualify applicants For the purposes of sections 11 (5) (b) and 29 (3) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a) An offence relating to the possession or use of a firearm, or any other weapon, committed under: (i) the law of any Australian jurisdiction, or (ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction). … (c) An offence committed under the law of any Australian or overseas jurisdiction: (i) involving the infliction (or attempted infliction) of actual bodily harm to another person, and (ii) in respect of which, either the convicted person has been sentenced to imprisonment for 28 days or more, or a penalty of $200 or more has been imposed on the person." The Commissioner's case 8 The Commissioner relies on Mr Nguyen's criminal history record. In January 1999 Mr Nguyen was found guilty of the offence of malicious wounding and sentenced to probation with conditions with a 12 month Bond to be of good behaviour. This matter related to an incident at Bonnyrigg High School in February 1998 in which Mr Nguyen was armed with a machete and a student was stabbed. 9 An entry in the COPS system indicates that Police received a complaint in August 1998 that Mr Nguyen had attempted to extort money from students at Bonnyrigg High School. The COPS entry states that the alleged victims refused to make a formal complaint or proceed with charges, as they were fearful of reprisals. 10 In September 1999 Mr Nguyen was committed for trial in relation to charges brought following an incident that occurred at Marrickville on 16 August 1998. The incident is described in the COPS entry as a 'home invasion'. The Commissioner alleged that Mr Nguyen was involved in this incident and was accidentally shot during the course of the commission of the offence. A hat that was identified as belonging to Mr Nguyen was found at the scene of the home invasion. Mr Nguyen was charged with two counts of 'aggravated robbery' and one count of 'specially aggravated break and enter and commit a felony - inflict grievous bodily harm'. However, the Director of Public Prosecutions decided not to proceed with the charges. 11 The Commissioner relies on statements provided by officers who were involved in investigation of that incident and the alleged victims and the transcript of a recorded interview with Mr Nguyen. None of the authors of these statements appeared at the hearing. 12 The Commissioner also relies on evidence of Mr Nguyen's driving record and contends that Mr Nguyen has demonstrated disregard for the law in relation to the use of motor vehicles. On a number of occasions Mr Nguyen has been fined for driving offences. He has been detected driving an unregistered, uninsured vehicle, has displayed a misleading registration label and been the subject of negligent driving charges. 13 The Commissioner also relies on evidence provided to the Tribunal on a confidential basis. 14 Subject to suppression order. 15 Subject to suppression order. 16 Subject to suppression order. 17 Subject to suppression order. 18 Mr Venditti submits that it is not in the public interest for Mr Nguyen to hold a firearms licence. He submits that one of the underlying principles of the Act is to improve public safety by imposing strict controls on the possession and use of firearms, and that this would not be furthered by granting Mr Nguyen a firearms licence. He contends that the seriousness and violence involved in the matters to which Mr Nguyen has been linked raise serious concerns regarding his ability to be a law abiding citizen, and that the public would continue to hold concerns should he be issued with a licence. 19 He argues that when considering whether a person should be afforded the privilege of firearms possession, the Tribunal must consider that Mr Nguyen has previously behaved in a manner which indicated that he was at risk of harming others. It cannot be satisfied that Mr Nguyen is a fit and proper person to hold the licence or that he can be trusted to hold a firearm without presenting a risk to public safety. He says that public safety is a paramount consideration and it would be contrary to the public interest to grant the licence. 20 Mr Venditti also submits that the Tribunal may consider Mr Nguyen's unco-operative aggressive demeanour and his evasive or self serving evidence. He says that the demeanour is relevant to the issue of Mr Nguyen's fitness to hold the licence. He says that Mr Nguyen has portrayed himself as a victim and not accepted responsibility for his past conduct. 21 Mr Venditti further submits that in order to be granted a category H licence, Mr Nguyen must establish that he has a special need for it. There is no evidence of the special need and therefore the licence should not be granted. Accordingly, the Commissioner's decision to refuse the licence should be affirmed. Mr Nguyen's case 22 Mr Nguyen gave evidence in support of his application. He denies all the allegations against him. He contends that in any event all the offences or alleged offences to which the Commissioner has referred are old matters and the courts dealt with them in 1998 and 1999. He says that since that time he decided to alter his way of living and manner of life and has subsequently undertaken training to gain employment as an armed security guard. 23 Mr Nguyen provided an account of the incident at Bonnyrigg High School for which he was charged and convicted. His evidence is that he was a victim in that incident. It involved him being attacked by a gang and that others came to his aid. He denied any involvement in the alleged attempted to extort money from students at Bonnyrigg High School. 24 Mr Nguyen denied that he was involved in the home invasion incident. He said that the hat found at the scene belonged to his sister and had been lost prior to that incident. He denied that he was shot at the scene of the home invasion but said that he was shot whilst walking along the street elsewhere in Marrickville. 25 His evidence is that he has often been the victim of unprovoked attacks. He says that he was simply in the wrong place at the wrong time when he was shot and when he was attacked in the incident at Bonnyrigg High School. He provided copies of statements that he had given to police in relation to two other incidents in which he was a victim of unprovoked attacks. He says that these statements support his contention. 26 He says that he can be responsible. He has undertaken all the training required for security guard work and there is no reason for the Commissioner to be worried. He says that he has been told that he needs to obtain a firearms licence if he is to obtain work with Armaguard. 27 Mr Nguyen denied that he is the type of person portrayed by the Commissioner. He says he is no longer in contact with the persons that the police are concerned about. He says that there is no risk to the public if he is granted the licence that he seeks and therefore it should be granted. Findings 28 Many of the issues involved in this matter were considered in some detail by Judicial Member Higgins in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254. I agree with the summary of the law that she has presented and adopt her reasoning in this matter. 29 It is well established that the term "fit and proper person" standing alone carries no precise meaning and that it must take its meaning from its context and the activities a person is to be licensed to perform. In assessing whether a person is a "fit and proper person" the Tribunal has followed the following statement of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; 94 ALR 11 at 65: "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 a person who 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, 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 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 a fit and proper person to undertake the activities in question. 30 In that case the question was whether the holder of a commercial broadcasting licence under the Broadcasting Act 1942 (Cth) continued to be a "fit and proper person" to be the holder of such a licence. Toohey and Gaudron JJ, at 382, went on to consider the role of commercial broadcasting and the obligations of a licensee. These obligations their Honours stated included an obligation to the community that the licensee would not abuse its potential for powerful influence. Mason CJ stated that the concept "fit and proper person" should not be construed narrowly and he went on to state at 348 and 349 the following: "Some indication of the breadth of the content of the concept may also be gathered from the fact that it is a purpose of the Act to ensure that commercial broadcasting is conducted in the interest of the public. A commercial broadcasting licence is a valuable privilege which confers on the licensee a capacity to influence public opinion and public values. For this reason, if for no other, a licensee has a responsibility to exercise the power conferred by the licence with due regard to proper standards of conduct and a responsibility not to abuse the privilege it enjoys." 31 In my opinion, the term "fit and proper person" in s. 11(3)(a) of the Act should also be given a wide meaning. As stated by Mason CJ the breadth and content of the concept must be derived from the Act and the purposes of the Act. In this case, Parliament has expressly stated what the underlying principles of the Act are. This includes the principle that the possession of a firearm is a privilege and that it is conditional on the overriding need to ensure public safety (see s. 3(1)(a)). Accordingly, the fitness and propriety of a person under the Act must be considered in the context of at all times ensuring public safety. In my opinion Parliament has made this clear with the additional words in s. 11(3)(a) of "... and can be trusted to have possession of firearms without danger to public safety and the peace." That is, s. 11(3)(a) of the Act requires the Commissioner to determine the fitness and propriety of an applicant for a licence by having regard to the applicant's conduct and whether that conduct is such that he can be satisfied that the applicant can be trusted to have possession of firearms without danger to public safety or to the peace. 32 In Ward v Commissioner of Police, New South Police Service [2000] NSWADT 28 at paragraphs [28] and [27] the Deputy President stated the following in respect of what is required under s. 11(3)(a): "27. ... The question for the Tribunal is whether, based on all the evidence, it would have confidence that Mr Ward would pose no risk to public safety if he had access to firearms. 28. The Tribunal could never be totally satisfied that a person would pose no 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. " 33 I agree with the statement of the Deputy President. 34 In the majority of cases the fitness and propriety of an applicant for a firearms licence arises as a result of the applicant having been convicted or found guilty of a criminal offence, which is not an offence for which a licence must automatically be refused (see s. 11(5)(b) of the Act). However, even in these cases the Tribunal has clearly stated that in determining whether a person is a "fit and proper" person to be issued with a licence, what is relevant is the conduct of the person and not the fact that the person has been charged or convicted in respect thereof: see Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 at [21]. 35 Accordingly, the Commissioner and the Tribunal can have regard to any improper conduct of an applicant in determining that person's fitness and propriety to be the holder of a firearms licence. 36 In Sobey v Commercial Agents Board [1979] 22 SASR 70, 75-5 the Court was concerned with the question of whether an applicant for a licence as a commercial agent was "a fit and proper person to hold a licence" because of his record of criminal convictions. Walters J said, at 75-76: "I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record and previous offences. Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance. I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a pre-requisite for a licence under the Act. ... When a considerable period of time has elapsed from now, past acts might be viewed in the light of this lapse of time and weight might then be properly given to his subsequent good behaviour. ... what is meant by (the expression "a fit and proper person") is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry, as a person to be entrusted with the sort of work which the licence entails." 37 While those comments relate to occupational licensing they are, in my opinion, applicable to the question of whether a person is fit and proper to be granted the privilege of holding a firearms licence. There is a need to provide some surety that the individual would carry out the obligations of a licence with integrity and propriety. 38 In this case, the essence of the Commissioner's case is that Mr Nguyen has previously behaved in a manner which indicated that he was at risk of harming others. The circumstances in which a licence can be issued must be viewed in light of the paramount considerations of public safety and the public interest. 39 I agree with Mr Nguyen that the conviction recorded against him is old. It also relates to an incident that occurred when he was only 18 years old. Notwithstanding that it involved violence and the use of a dangerous weapon, if the evidence supported Mr Nguyen's contention that he is no longer a risk to the public it may not of itself be a sufficient reason to refuse to grant the licence. Regrettably the evidence does not support this view. 40 I agree with Mr Venditti's submission with regard to Mr Nguyen's demeanour. Mr Nguyen was often non-responsive and refused to answer a number of questions even after being directed to do so. At times he became angry and struck the bar table. He was unable to remember certain events that were contrary to his interests but was readily able to remember events from similar times that supported his position. I found some of his evidence to be implausible and have concluded that much of his evidence was not reliable. 41 Subject to suppression order. 42 The circumstances in which a licence can be issued must be viewed in light of the paramount considerations of public safety and the public interest. In my opinion the Commissioner's concern is a justified one when having regard to all the evidence before me. In my view, the issue of a Category H firearms licence to Mr Nguyen would be contrary to the public interest. Order The Commissioner's decision to refuse Mr Nguyen a Category H firearms licence is affirmed. 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.