| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : FIREARMS ACT 1973 (WA) CITATION : CASTALDINI and COMMISSIONER OF POLICE [2013] WASAT 150 MEMBER : MR T CAREY (MEMBER) HEARD : 21 MAY 2013 FINAL WRITTEN SUBMISSIONS FILED 4 SEPTEMBER 2013
DELIVERED : 12 SEPTEMBER 2013 FILE NO/S : CC 1673 of 2012 BETWEEN : KEVIN LOUIS CASTALDINI Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords: Firearm licence - Application to extend licence - Genuine reason for acquiring or possessing firearms - Whether particular kind of firearm can be reasonably justified Significance of applicant's existing firearm holding Legislation: Firearms Act 1973(WA), s 11(1), s 11A, s 11A(2), s 11A(3), s 22
State Administrative Tribunals Act 2004 (WA), s 9, s 18(1), s 27(1), s 27(2), s 29(1), s 29(3), s 31, s 31(3), Div 3 Pt 4
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Result: Application successful in part
Commissioner's decision on reconsideration set aside and substituted by fresh decision
Summary of Tribunal's decision: The applicant sought an extension of his firearm licence to include two .357 rifles, in circumstances where he was licensed for two similar older rifles already. The critical question for determination was whether each new rifle could, having regard to his existing rifle holdings, be reasonably justified.
The evidence disclosed a number of different physical characteristics of the various firearms, suggestive of differences between them in their application. The Tribunal found in favour of the applicant's licence being extended by the addition of one of the new firearms based on such matters.
When regard was had to other motivating factors for the acquisition of the new firearms, the Tribunal was not persuaded that the second new firearm could be reasonably justified.
The Tribunal undertook its analysis based upon the applicant's primary claim for a genuine reason for the firearms that they were for use in hunting or shooting of a recreational nature. It also considered the matter in the context of the applicant's alternative ground, for use by him as a member of an approved shooting club, despite this ground not being pressed in the applicant's formal statement prepared for the purpose of the hearing, after the parties were given an opportunity to address it, subsequent to the hearing.
Category: B
Representation: Counsel:
Applicant : Mr J Morris
Respondent : Senior Constable Bagley
Solicitors:
Applicant : Morris Criminal Lawyers
Respondent : Commissioner of Police
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Case(s) referred to in decision(s):
Kashani and Commissioner of Police [2010] WASAT 80
Kashani v Commissioner of Police [2011] WASC 6
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicant, Kevin Castaldini (Mr Castaldini), wishes to be licensed on an open licence, to allow him to possess two firearms in addition to the 18 firearms for which he is already licensed. The two additional firearms are: 2 Mr Castaldini was initially denied his application for the new firearms by the Commissioner of Police (Commissioner), and he exercised his right under s 22 of the Firearms Act 1973 (WA) (the Act) for a review of this decision by the Tribunal. 3 As a result of an invitation, issued in the course of the Tribunal's prehearing procedures, to the Commissioner under s 31 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to reconsider its decision, the Commissioner effectively set aside the original decision and substituted a new decision that both the new firearms be added to his licence on a 'club use only' basis. The limitation would permit the use of the new firearms in the course of Mr Castaldini's shooting club activities and not otherwise. The limitation, it appears, arose from a discussion at a directions hearing before another Tribunal member, which drew some criticism from Mr Castaldini. Mr Castaldini pursues his review application in respect of the Commissioner's decision on reconsideration, in accordance with s 31(3) of the SAT Act. 4 The hearing in the matter took place on 31 May 2013. It proceeded on the premise that the sole basis of Mr Castaldini's claim to a genuine reason to be licensed for the two new firearms related to '… hunting or shooting of a recreational nature …'. Although this was consistent with Mr Castaldini's response in the firearms licence application to a question, 'What is the most relevant reason for applying for a licence for this firearm?', and also with the applicant's statement of issues, facts and contentions filed in the proceeding, Mr Castaldini has on more than one occasion sought to rely on a secondary ground of genuine reason, namely, '… for use as a member of an approved shooting club'. As he was not permitted at the hearing to develop his claims based on the latter ground, (Page 5)
the parties were provided with the opportunity to file and serve documents outlining their respective positions having regard to Mr Castaldini's reliance on the shooting club ground, on the basis that the Tribunal would make its decision based on both grounds. I will refer to Mr Castaldini's response to this invitation later in these reasons. 5 The Commissioner opposes the review application. He considers that the outcome of the application on the Tribunal's de novo review should be that the decision on reconsideration permitting Mr Castaldini to possess and use both firearms on a 'club use only' basis be set aside and substituted with a decision to revoke the current extension of licence permitting such use. 6 In light of the documents filed and submissions made at the hearing by the parties, the issue which I must determine is whether, in respect of each of the two new firearms, Mr Castaldini has established that he has a 'genuine reason' for acquiring and possessing the new firearm, having regard to the statutory requirement that the particular kind of firearm can be 'reasonably justified'.
Nature of the review 7 The proceeding falls within the review jurisdiction of the Tribunal, which is the subject of Div 3 Pt 4 of the SAT Act. In exercising its review function, the Tribunal is required to deal with the matter in accordance with the SAT Act and the enabling Act, in this case, the Act: s 18(1) of the SAT Act. The review is by of a hearing de novo and may involve consideration of new material, whether or not it existed at the time the decision was made: s 27(1) of the SAT Act. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review: s 27(2) of the SAT Act. The Tribunal has functions and discretions corresponding to those exercisable by the decisionmaker in making the decision under review: s 29(1) of the SAT Act. The Tribunal may make any order it considers appropriate, including to affirm the decision, vary the decision or set it aside and substitute its own decision, or send the matter back to the decision-maker for reconsideration: s 29(3) of the SAT Act. 8 With reference to the issue earlier identified for determination, I will first outline the legal principles surrounding the 'genuine reason' concept under the Act, before assessing Mr Castaldini's claims in light of those principles. (Page 6)
Genuine reason – legal principles 9 Section 11(1) of the Act provides relevantly: 10 Section 11A of the Act provides relevantly: 11 As I have said, although the primary category of genuine reason relied upon by Mr Castaldini is hunting or shooting of a recreational (Page 7)
nature, he has on occasions manifested a desire to rely upon the shooting club ground, at least to some extent. 12 At its heart, the parties' dispute, considered against both grounds of genuine reason, concerns the question of the extent to which Mr Castaldini's requirements for the new firearms are being met by his existing stock of licensed firearms. This is reflected in the parties' submissions about how s 11A(3) of the Act should be applied to the facts. 13 In Kashani and Commissioner of Police [2010]WASAT 80 (Kashani), I said ([15]): 14 Although Mr Castaldini's statement of issues, facts and contentions made much of the 'overturning' of Kashani on appeal, he accepted that, in certain circumstances, the possession of identical firearms may be a relevant consideration, with every decision turning on its own facts. 15 When one looks at the decision of the Supreme Court on appeal in (Kashani v Commissioner of Police [2011] WASC 6) (Kashaniappeal decision), Jenkins J, in dismissing two grounds for appeal which argued that I had misconstrued s 11A(3) in the passage re produced above, lent support for the view that a decisionmaker is permitted by that provision: 16 The Kashaniappeal decision makes clear that the words of the statute which bestow the licence making power are paramount in the determination of disputes concerning the issue of genuine reasons. The Act requires that the decisionmaker be satisfied, first, that a licensed applicant has a genuine reason to possess the firearms applied for by reference to one of the alternatives set out in s 11A(2) of the Act, and, second, that the particular kind of firearm can be reasonably justified. 17 Jenkins J dealt with the expression 'can be reasonably justified' as follows: (Page 8)
(Kashani appeal decision at [42]): The phrase 'can be reasonably justified' has no particular legal meaning. The words in it are ordinary words and appear to bear their ordinary meanings. They require an applicant to satisfy the Commissioner or SAT, on review, that there are sensible, adequate grounds for the applicant to possess the particular kind of firearm, the subject of the application. The phrase does import an objective test to whether the firearm the subject of the application is justified. Matters personal to an applicant may be relevant to this test but, ultimately, the test is whether objectively there are sensible, adequate grounds for the applicant to possess the particular kind of firearm the subject of the application. 18 The question in this matter thus becomes: Am I satisfied that there are sensible, adequate grounds for Mr Castaldini to hold the two additional .357 calibre lever repeater rifles in light of his existing access to firearms?
The applicant's claims for genuine reason and assessment of those claims against the legal criteria 19 Although, as I have said, Mr Castaldini held 18 firearms on this licence prior to his application for the new firearms, it is the existence of just two of those firearms on his licence which gave rise to the Commissioner's initial refusal decision. Those firearms are: • Uberti .38 calibre pistol rifle; and • Uberti .357 mag/38SP. 20 Mr Castaldini's statement of issues, facts and contentions, limited, as I have said, to the ground of hunting or shooting of a recreational nature, contains the following summary of reasons for requiring the two new firearms: In the present application the applicant requires the two firearms for culling foxes. Due to physical characteristics such as length and weight, the (new) firearms are distinct and different from those he is currently licensed to possess. Further, he required two due to magazine capacity and needing a backup during culling in the event of a stoppage or malfunction. 21 At the hearing, Mr Castaldini identified a number of physical differences between, and different applications for, the two older firearms, the two new firearms, and the new firearms in comparison with the old. The more notable differences were: (Page 9)
• The two older firearms have different shooting ranges. The .38 pistol rifle shoots 'black powder' and has a range of 50 75 metres, making it suitable to shoot kangaroos, foxes and goats in an open shoot situation. The .357 magnum has a scope and a range of approximately 120 200 metres, making it suitable for goats at longer distances. • Although the two new firearms have a virtually identical exterior, they are different internally. The first has modifications such as action springs and is short stoked, in comparison with the second standard model. The modifications to the former allow shooting at a faster rate. That said, Mr Castaldini conceded that the two firearms have essentially the same characteristics. • The two new firearms have shorter, lighter barrels and do not have a scope. They are suited for use while walking through the bush. Having open sights, it is not necessary to remove a scope in the course of hunting on foot. The new firearms are also, to use Mr Castaldini's words, 'more respectful' of the prey, in the sense that they result in a cleaner kill. The two older and heavier firearms are best used from vehicles. The .357 magnum is suitable for use when spotlighting from a vehicle. 22 It is also clear, based both on the documents filed by Mr Castaldini and admitted into evidence as Exhibit A and his oral evidence, that the desire for the new firearms is motivated by more than filling perceived gaps in his pre-existing stock of firearms. At least two further factors are in play: • Mr Castaldini referred, explicitly and repeatedly, to his desire to have one or more firearms as 'backup' for a primary firearm (the identity of the primary and backup firearm varying according to the circumstances), for reasons of efficiency on a shoot, and as a substitute in the case of breakage or malfunction. Mr Castaldini explained, with reference to the two new firearms, that the efficiency dividend arising from carrying a second almost (but not completely) identical firearm derived from the ability to change firearms rather than having to reload the one firearm. On a recreational shoot on his (Page 10)
own, Mr Castaldini tends to use the standard firearm as the primary firearm and the modified one as backup, with the position being reversed in a club shooting scenario. He described the types of possible breakage or damage to firearms that can occur, ranging from the minor, capable of being remedied on a shoot, to the major, which might put the firearm out of action for six months. He said that some form of breakage occurs every couple of months on average, and that he keeps a limited supply of parts, the limitation being related to the cost of the part concerned. • Mr Castaldini desires accessibility to sufficient .357 firearms to enable other members of Mr Castaldini's family, and particularly his son, to have access to one of his firearms. When Mr Castaldini had pointed out to him by the Commissioner's representative that any use of the firearms in question is limited to co-licensees and that the son in question is unlicensed, Mr Castaldini stated that his son would purchase one of the new firearms from him 'when he gets his licence'. In the meantime, Mr Castaldini's personal use for the firearm earmarked for his son is by way of a backup firearm. 23 Before assessing Mr Castaldini's claims based on the recreational shooting ground, I wish to touch upon a recurring theme of some of his statements made both to the Commissioner and before me. 24 In one of the documents which comprise Exhibit A, Mr Castaldini stated: I, as the shooter, am the best person to decide how many rifles are adequate for servicing my particular needs. 25 Under cross-examination, Mr Castaldini reiterated his desire for the opportunity to make up his own mind as to what firearms he is entitled to use. 26 I acknowledge Mr Castaldini's status as non-legally trained, and also that his first assertion (although not his second) was before he obtained the benefit of legal advice. However, given the assertions, I consider it appropriate to emphasise that the decision to be made is not Mr Castaldini's, but the Commissioner's, and now the Tribunal's standing in his shoes, based on objective considerations, albeit having regard to Mr Castaldini's subject desires and requirements. (Page 11)
27 This matter has its intricacies. It is concerned with the desire of a person with high order knowledge and skills of firearms and ballistic capabilities to extend his firearm licence by adding two new firearms unconditionally, with a view, alternatively, to filling alleged gaps in his current firearm holdings, or for other purposes he considers to be legitimate. 28 As the evidence makes clear, there is a range of motivating factors underlying Mr Castaldini's quest for the two new firearms. I have found it helpful to analyse each of the motivations in determining the primary question of whether sensible, adequate grounds exist for Mr Castaldini to be granted the extension he seeks. 29 The first motivation is the enhanced suitability of the two new firearms in the range of possible scenarios in which Mr Castaldini might use them, so that they can be justified as 'filling a gap' which currently exists. 30 In my view, Mr Castaldini has identified sufficient physical differences between the new firearms and the older .38 and .357 magnum to reasonably justify the addition to his licence of one of the new firearms. It is clear, based on his evidence, they allow for a better and more efficient shooting experience on foot. I can see no reason to deny Mr Castaldini the benefits that one of the new firearms has over his older firearms which were previously not available to him. Further, given that the Commissioner has previously licensed the two older firearms, and in doing so must have been satisfied as to the reasonable justification of the kind of firearm in each case, no cogent basis exists for the addition of new firearm to impact on upon either of the older firearms (which was one of a number of possible outcomes adverted to at the hearing). 31 The second motivation expressed by Mr Castaldini for the licensing of the two new firearms is as 'backup'. Having regard to the evidence in relation to the need for backup firearms in an open hunt situation, I am not satisfied that Mr Castaldini has demonstrated he requires a second .357 lever action rifle for backup purposes. Bearing in mind the appropriateness of considering whether or not the existing holding of firearms is sufficient for a person's reasonable firearm needs, and the imperative of s 11A(3) of the Act to demonstrate that any additional firearm be of a particular kind that can be reasonably justified, a cautious approach to a licensee's urgings for backup firearms is entirely appropriate. Mr Castaldini agreed to the proposition put to him in crossexamination that he had managed with his older firearms for some (Page 12)
five years, including on foot. It seems to me to be perfectly reasonable to require that, to the extent that backup is required by Mr Castaldini on a hunt, he uses one of the older firearms for that purpose. 32 The final motivation disclosed on the evidence is to enable access by Mr Castaldini's son to one of the new firearms. One of Mr Castaldini's statements at the hearing underlining such a motivation was to this effect: a driving force behind purchasing the firearms was to teach his son to maintain his skills in club and field. Whether or not the son's current lack of a licence prevents him from using the firearm in any circumstance, such a motivation would not constitute a permitted ground of genuine reason under s 11A(2) of the Act, much less satisfy the reasonable justification tests under s 11A(3), particularly having regard to the object of the Act to limit firearms in the community in the ways to which I have referred. Given the clarity in some of his oral evidence (despite later attempts to minimise its significance) with which he expressed his desire that his son have access to one of the new firearms, now or in the future, I regard this as being the paramount consideration in Mr Castaldini's acquisition of the second of the new firearms. That being so, any alternative hypothesis for that acquisition was very much a second order motivation. 33 All of the discussion concerning Mr Castaldini's claims for genuine reason to this point has been focussed upon the ground of being for use in hunting or shooting of a recreational nature. I will deal briefly with the secondary ground advanced, that is, for use as a member of an approved shooting club. 34 The response received to the Tribunal's direction that the applicant file a document 'setting out any further facts and contentions relating to his claim to the new firearms based upon' the secondary ground, titled 'Applicant's further submissions re section 11A(2)(a) [of the Act]' mistook the import of the direction, by assuming, as the subject matter, the prospect of the licence being extended to include the new firearms on the condition 'for approved club purposes'. It went on the justify such an extension, in the event that the licence was not extended to the same firearms on an 'open' basis, having regard to the requirements of s 11A(2)(a) of the Act, without any reference to the basis on which it was said that the particular kind of firearm in each case could be reasonably justified as required by s 11A(3) of the Act. Rather than elongate the proceeding, I consider that the interests of justice are best served by considering the references made by Mr Castaldini to the secondary ground, such as they are, before and at the hearing. In so doing, I am (Page 13)
satisfied that I am able to reach a conclusion, consistent with the Tribunal's objectives under see s 9 of the SAT Act, based on the substantial merits of the case. 35 The Tribunal has been provided with copies of Mr Castaldini's written applications for the new firearms to be added to his licence on the shooting club ground, and documents demonstrating support from his shooting club and the Sporting Shooters Association of Australia. As the Commissioner points out, these documents do not necessarily mean that Mr Castaldini is entitled to the extension sought, either absolutely or on a 'club use only' basis. I can accept that Mr Castaldini would like to be able to use both new firearms as part of his shooting club activities. He went so far in his evidence as to indicate, in response to cross examination about his various motivations, that he was leaning towards using the new firearms for club purposes. The question remains, in relation to the second of the new firearms, whether, given his success in relation to the first, thereby allowing him to use one of the two new firearms at his club, Mr Castaldini has demonstrated a reasonable justification for that firearm. 36 Having scoured Mr Castaldini's earlier documents, apart from his misconceived expressions of a right to choose the firearms he uses, I can see no explanation as to why it is necessary to have a backup firearm, having essentially the same characteristics as a firearm already held, in the shooting club context. As I have indicated, no relevant facts or contentions were exposed in the further submissions filed by him since the hearing. In those circumstances, there is no basis upon which I can be satisfied that possessing the second of the new firearms can be reasonably justified, as required by s 11A(3) of the Act.
Conclusion 37 For the above reasons, I am satisfied that Mr Castaldini has a genuine reason for acquiring or possessing one only of the two firearms he seeks to be added to his firearm licence. The decision the subject of review, that both firearms be added to the licence on a 'club use only' basis, will be set aside and substituted with a decision that Mr Castaldini's licence be extended by the addition of one of the firearms. There being no discernable difference between the firearms constraining one or other of them from being an acceptable addition to the licence, the choice of the firearm to be added will be Mr Castaldini's. (Page 14)
Order |