Craddock v The Registrar of Firearms
[2013] SADC 19
•26 February 2013
District Court of South Australia
(Civil)
CRADDOCK v THE REGISTRAR OF FIREARMS
[2013] SADC 19
Judgment of His Honour Judge Millsteed
26 February 2013
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeal against decision of the Registrar of Firearms cancelling the appellant's firearms licence - Registrar found that the appellant was not a fit and proper person to hold a licence - held (i) Registrar could not have been reasonably satisfied of the existence of material facts upon which decision was based (ii) the appellant is a fit and proper person to hold firearms licence - appeal allowed - Registrar's decision rescinded.
Firearms Act 1977 s 5, s 6(1)-(2), s 20(1)(b), s 20(1a)(a), s 20(2), referred to.
Registrar of Firearms v Gitsham (2002) 84 SASR 72; Johnson v Registrar of Firearms (2001) 79 SASR 353; Police v Lospaio [2007] SASC 112; Zammit v Registrar of Firearms [2010] SADC 100; Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, considered.
CRADDOCK v THE REGISTRAR OF FIREARMS
[2013] SADC 19INTRODUCTION
On 12 August 2011 Dr David Robert Craddock (“the appellant”) attended Marksman Indoor Firing Range (“Marksman”) at 163 Franklin Street, Adelaide with a pistol he had recently purchased. The appellant test fired the pistol in Range B, firing bay 5. The pistol repeatedly locked or jammed. The appellant placed the loaded pistol on a firearms case[1] which was resting on a counter in the firing bay. The appellant was assisted by Marksman’s Operations Manager, Mathew Jess Marks (“Mr Marks”) who, upon handling the pistol, accidentally discharged the firearm and was shot in the right hip (“the shooting”).
[1] As discussed later, there is a dispute as to (i) whether the pistol was placed inside, or on top of, a foam cut-out inside the case and (ii) the direction in which the pistol was pointing.
On 28 March 2012, Chief Inspector Paul Mathew Ralphs (“CI Ralphs”), a delegate of the Registrar of Firearms (“the respondent”) found that, in a series of actions, the appellant had handled the pistol in an unsafe manner including leaving it on the firearms case facing “up range” (away from the target). On the basis of these findings the respondent cancelled the appellant’s firearms licence pursuant to the provisions of the Firearms Act 1977 (“the FA”) on the grounds that he was not a fit and proper person to hold the licence[2] and/or that it would be contrary to the public interest to permit him to continue to possess and use firearms.[3]
[2] Section 20(1)(b) FA.
[3] Section 20(1a)(a) FA.
The appellant disputes the respondent’s findings and appeals against the cancellation pursuant to s26C(1) of the FA.
STATUTORY FRAMEWORK
The FA and the Firearms Regulations 1978 (“the Regulations”) regulate the acquisition, possession, use, registration and dealing in forearms and ammunition for the primary purpose of ensuring public safety.[4] The FA provides for the Commissioner of Police to be the Registrar of Firearms (the Registrar)[5] who may, by instrument in writing, delegate to any person any of the Registrar’s powers and functions under the FA.[6] CI Ralphs was, at all relevant times, a delegate of the Registrar.
[4] Registrar of Firearms v Gitsham (2002) 84 SASR 72 Mullighan J at [23]; Johnson v Registrar of Firearms (2001) 79 SASR 353 Gray J at [16].
[5] s6(1).
[6] s6(2).
Firearms licences
The FA prohibits the possession or use of firearms unless such possession or use is authorised by a firearms licence (s11). Firearms licences may be granted by the Registrar (s12) and may authorize possession of a particular firearm or class of firearms, and must be endorsed by the Registrar with the purpose or purposes for which that firearm or class of firearms may be used by the holder of the licence (s13(1)). The various classes of firearms are set out in s5 of the FA. The appellant’s licence was endorsed for hunting and club use and for classes A, B and H firearms.[7] Class H firearms are hand guns.[8]
[7] Affidavit of CI Ralphs sworn on 17 October 2012 at [14]: Appeal Book 1 (Exhibit A2) Tab 5A.
[8] s5.
Holders of firearms licences are obliged to act responsibly in accordance with the FA’s objective of ensuring public safety. As David J observed in Police v Lospaio:[9]
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility.
[9] [2007] SASC 112 at [21].
Section 20 empowers the Registrar to cancel, vary and suspend firearms licences in certain circumstances. The Registrar may relevantly cancel a firearm’s licence:
·if the Registrar is satisfied that the holder of a licence “is, for any reason, not a fit and proper person to hold the licence” (s20(1)(b)); or
·where the Registrar is satisfied that “it would be contrary to the public interest to permit the holder of a firearms licence to continue to possess and use firearms” (s20(1a)(b)).
In determining that a firearms licence should be cancelled the Registrar, or delegate of the Registrar, must be reasonably satisfied of the material facts upon which the decision is based.[10] Suspicion or speculation as to the existence of material facts is not sufficient.[11]
[10] Re Pochi and Minister for Immigration and Ethnic Affairs (1979) ALD 33 Brennan J at 39; Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 Deane J at 62.
[11] Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 Deane J at 62.
Fit and proper person
Pursuant to s5(1) the grounds upon which a person may be taken not to be a “fit and proper person” are set out in subsections (10) to (13) and s6B(2) (which has no relevance to the present case). Subsections (10) to (13) state:
(10)For the purposes of this Act a person who has a mental or physical condition that would make it unsafe for him or her to possess a firearm or ammunition must be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence.
(11)For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person-
(a)has not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms; or
(b)has been found guilty of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)has been found guilty of an offence involving actual or threatened violence in this State or any other State or Territory of the Commonwealth or in any other part of the world; or
(ca) has been found guilty of an offence prescribed by regulation; or
(d)has been guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation in another State or Territory of the Commonwealth; or
(e)is the subject, or has in the past been the subject, of an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 or any other order of a similar nature made by a court whether in this State or any other State or Territory of the Commonwealth.
(12)Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
(13)In deciding whether a person is a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence for the purposes of this Act, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates.
Where s5(10) applies a person who has a relevant mental or physical condition “must be taken” not to be a fit and proper person to hold a licence. In other words, the subsection statutorily mandates this conclusion.[12] By contrast, s5(11) identifies grounds upon which a person “may be taken” not to be a fit and proper person. Section 5(12) makes it plain that an inquiry as to fitness and proprietary is not limited to the matters set out in s5(11). Furthermore, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates (s5(13)).[13]
[12] Zammit v Registrar of Firearms [2010] SADC 100 Tilmouth DCJ at [33].
[13] Section 5(13) was inserted by the Firearms (Firearms Prohibition Orders) AmendmentAct2008 (Act 15 of 2008 s4(14)) to broaden the grounds upon which a person may be found not to be fit and proper. It was one of a raft of changes to the FA which were intended to strengthen the powers of the police to combat firearms related violence and were primarily, though not entirely, directed at targeting motorcycle gangs and their associates: Firearms (Firearms Prohibition Orders) Amendment Bill second reading speech Hansard 5 March 2088 at 2055-2058.
It is clear that the FA does not provide an exhaustive list of the circumstances in which a person may lack the requisite fitness and proprietary to hold a firearms licence. The purpose of the expression “fit and proper” is to give wide scope for judgment and allow broad bases for rejection. It is inappropriate to attempt any definition of the matters which may be the subject of inquiry under this test.[14] In Australian Broadcasting Tribunal v Bond[15] the High Court considered whether the Tribunal had erred in revoking the respondent’s commercial licence under s88(2) of the Broadcasting Act 1942 (Cth) on the grounds that he was “no longer a fit and proper person to hold the licence”. Toohey and Gaudron JJ said:[16]
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 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.
[14] Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-157; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 589.
[15] (1990) 170 CLR 321.
[16] (1990) 170 CLR 321 at 380.
In Hughes and Vale Pty Ltd v New South Wales (No.2)[17] Dixon CJ, McTiernan and Webb JJ said:[18]
“Fit”…with respect to office is said to involve three things, honesty, knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it” – Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances: R v Hyde Justices.
(citations omitted)
[17] (1955) 93 CLR 127.
[18] (1955) 93 CLR 127 at 156-157.
As the authorities indicate, it is inappropriate to attempt any definition of the matters to be considered in considering whether a person is fit and proper to hold a firearms licence under the FA. However, it is clear that the question of whether a person is fit and proper includes consideration of the person’s honesty, knowledge and ability to undertake the licensed activities in accordance with the requirements of the FA and the Regulations and their primary objective of public safety.
It is appropriate at this point to deal with two points raised by Mr Abbott QC, counsel for the appellant. First, he submitted that the test for fitness and proprietary is a balancing exercise in that the character of a person must be weighed against any lack of skill or deficiency. In support of that proposition Mr Abbott relied upon the following passage in the judgment of Judge Tilmouth in Zammit v Registrar of Firearms:[19]
However, s 5(11) & (12) are clearly qualified by s 5(13) in deciding [whether a person is a fit and proper person]. Either way the decision-maker is obliged to have regard to “the reputation, honesty and integrity of the person and of people with whom the person associates”: s 5(13). It is apparent from this requirement that even though cancellation might at first sight appear justified in accordance with ss 5(11), or 5(12), or both, there may be countervailing considerations under the wider rubric of “reputation, honesty and integrity”, which might on balance, serve to outweigh the adverse considerations.
[19] [2010] SADC 100 at [33].
If Judge Tilmouth was suggesting that the question of fitness and proprietary is a balancing exercise, I must respectfully disagree. As Mr Golding, counsel for the respondent, submitted a person may lack fitness and propriety because of poor character or a deficiency in skill or ability or both. A person must meet all of the requirements of the test. If a person is unfit due to a lack of skill or ability it matters not that he or she is a person of good character. The primary objective of the licensing system is public safety. I will return to this point when discussing the appellant’s grounds of appeal.[20]
[20] See [97]-[102] of this judgment.
The second point made by Mr Abbott relates to the grounds upon which CI Ralphs found that the appellant lacked fitness and propriety. As I will canvass in more detail later, CI Ralphs did not find that the appellant lacked fitness and proprietary upon any of the grounds set out in s5(10)-(13) or by reason of bad character. His finding was based on the appellant’s alleged failure to “follow basic safety protocols”.[21] As earlier pointed out, a breach of the requirements of the FA in relation to the safe handling, carriage or use of firearms is a ground upon which a person may be found to lack fitness and proprietary (s5(11)(a)). However, the FA requirements in relation to such matters are quite limited and have no application to this case.[22]
[21] Letter from CI Ralphs to Cosoff Cudmore Knox dated 28 March 2012: Appeal Book 2 (Exhibit A3) Tab 62 at pp 282-283.
[22] The “requirements of [the FA] in relation to the safe handling, carriage or use of firearms essentially relate to handling or transferring firearms while under the influence of intoxicating liquor or drugs: see s29.
Mr Abbott complained that CI Ralphs failed to identify in his decision the source of the protocols upon which he purported to rely. Mr Golding acknowledged that the relevant safety protocols are not specified in the FA and the Regulations but submitted that they are matters of “common sense”, embodied in the publicly available National Firearms Safety Code (NFSC).[23]
[23] Firearms%20Safety%20 Code%20-%20pdf520 version.
The NFSC is not a legal instrument. It is a Commonwealth Government initiative designed to encourage safe firearm handling procedures and safe shooting practices within the community. The NSFC states:
1. Treat every firearm as if it is loaded.
2. Your firearm is your responsibility.
3. Always ensure your firing zone is clear and identify your target beyond all doubt.
4. Never point a firearm at or near another person.
5. Never load a firearm until you are ready to shoot.
6. Keep your finger off the trigger until you are ready to shoot.
7. When you have finished shooting remove the magazine (if fitted), unload and then check that the chamber is empty.
8. Make sure that all firearms are transported securely to prevent misuse or theft.
9. Never allow unauthorised access to your firearm(s) or ammunition.
10. Do not climb fences or obstacles with loaded firearms.
11. Encourage safe and responsible handling of firearms in the field, on the range, and within the community.
12. Never mix shooting with alcohol or drugs.
13. Understand the operation of your firearm, keep it in good repair, and always use the correct ammunition.
14. Never store firearms and ammunition together. Ensure they are safely locked away when not in use.
15. Be familiar with the legal requirements for safe storage, firearms ownership, possession and use in your state or territory, or in the state or territory you are visiting.
16. Dispose of unwanted firearms lawfully. Surrender them to the police or sell them to or through a licensed dealer.
I accept Mr Golding’s submission that the matters to which the NSFC refers are common-sense considerations which a decision maker is entitled to take into account in determining whether a person is a fit and proper person to hold a firearms licence under the FA. I further accept that CI Ralphs had in mind safety protocols reflected in the NSFC, in particular protocols 1-4 and 7.
Public interest
The question of whether it would be “contrary to the public interest” to permit the holder of a firearms licence to continue to possess and use firearms is a broad test and is intended to encompass matters that fall outside the test of whether a person is fit and proper to hold a licence. In my view, a matter is of public interest whenever it affects people at large, so that they may be legitimately interested in, or concerned at what is going on, or what may happen to them or others.[24] As with the concept of “fit and proper”, it is not possible to define the matters that may be taken into account under the public interest test.
[24] See London Artists Ltd v Littler [1968] 1 WLR 607.
In his reasons for decision CI Ralphs did not specifically state the matters upon which he relied in determining that it would be contrary to the public interest to permit the appellant to continue to possess and use firearms. Mr Golding submitted that it could be inferred that they included (i) the matters upon which CI Ralphs relied to find that the appellant lacked fitness and proprietary and (ii) an additional finding that the appellant displayed an attitude at all times that his actions were beyond reproach. In relation to (ii) it seems to me that any alleged lack of insight or contrition on the part of the appellant would also be relevant to the question of whether he was a fit and proper person. For these reasons, there is, in my view, no need to consider the public interest test.
Statutory review
The FA also provides for a scheme of statutory review. A person aggrieved by a decision of the Registrar to suspend or cancel a licence may apply to the Registrar to refer the decision to the Firearms Review Committee (FRC) for review of the decision. The Registrar must upon application refer the decision to the FRC (s26B(1) and (8)). On review the FRC may affirm the decision or remit matters to the Registrar for consideration or further consideration (s26B(8)). A person aggrieved by a decision of the Registrar following remission of the matter by the FRC may appeal against the Registrar’s decision to the District Court pursuant to s26C.
FACTUAL BACKGROUND
The appellant
The appellant is 75 years of age and a retired medical practitioner having practised predominantly as a cardiothoracic surgeon. Between 1977 and 2001 he was the Director of Cardiothoracic Surgery at the Royal Adelaide Hospital and served as Chairman of the Medical Staff of the Royal Adelaide Hospital and the South Australian division of the Royal Australian College of Surgeons. There is no dispute that he is a person of good character.
The appellant has over 60 years experience with various types of firearms. He began using firearms while growing up in Queensland and gained extensive experience with army firearms while a member of the Cadet Corps at Townsville Grammar between 1950 and 1954. During 1955 and 1956 he gained further experience with army firearms while undertaking National Service.
Since 1955 the appellant has acquired and used numerous types of firearms for recreational purposes. Upon retiring from the medical profession in 2001 he took up competitive pistol shooting and became a member of two firearms clubs at Marksman, namely, the Australian Indoor Firearms Club and Club 21. Between 2002 and 2011 he regularly trained for, and participated in, competitive shooting. The appellant is a good marksman and has achieved the status of Grand Master in both Category 2 (0.22 calibre) and Category 3 (9 millimetre and .38 super calibre). In 2010 he became the open .22 and 9 millimetre champion of Club 21.
As earlier noted, at the time of the shooting the appellant held a South Australian firearms licence (No 88046L) which had been endorsed by the Registrar for classes A, B and H firearms. Prior to the cancellation of his licence, the appellant had held a South Australian firearms licence for 27 years and had never breached the FA or its regulations.[25] Indeed, the respondent acknowledges that before the shooting incident the appellant had “a long unblemished history as a user of firearms”.[26]
[25] Firearms Regulations 2008.
[26] Letter from CI Ralphs dated 28 March 2011 Appeal Book 2 (Exhibit A3) Tab 62 at p282.
Marksman
At the time of the shooting Marksman was located at 163 Franklin Street, Adelaide and owned by Marksman Training International Pty Ltd. As earlier mentioned, Mr Marks was employed as Operations Manager. His father, Andrew George Marks (“Mr Marks senior”), was Marksman’s Managing Director.
The premises at 163 Franklin Street contained two firing ranges (A and B) located behind a front office/reception area. Each firing range was enclosed in a room which ran north to south and contained five firing bays separated by partitions. Each firing bay had a counter which shooters stood behind to fire at targets at the southern end of the range (down range). The two firing ranges shared a common wall (the western wall of Range B).
The incident involving Mr Marks occurred in Range B, bay 5 which was adjacent to the western wall. For a person firing down range in bay 5 the western wall was to the right and the partition separating bay 5 from bay 4 to the left. A door at the northern end of the western wall provided access to Range A. Another door at the eastern end of the northern wall provided access to the reception area. A table was positioned against the northern wall of Range B (“the rear table”) a few metres from the firing bays.
A closed circuit television camera (CCTV) was positioned on the northern wall of Range B directly behind, and above, bay 5. The CCTV footage was time stamped to indicate when events occurred in hours, minutes and seconds after midnight. Following the incident on 12 August 2011, members of the Police Firearms Branch downloaded on to a digital video disc (DVD) footage from the CCTV which recorded the shooting and some of the events leading up to it.[27]
[27] The time stamp on the footage indicates when events occurred in hours, minutes and seconds.
The DVD formed part of the material upon which the respondent relied in determining to cancel the appellant’s firearms licence and was played on the hearing of this appeal. Unfortunately, the quality of the footage was poor. The images were grainy and unclear. Furthermore, some of the key activities that occurred in the vicinity of the counter inside bay 5 were obscured by the appellant and/or Mr Marks standing between the camera and the counter.
The pistol
The pistol involved in the shooting was a 9 millimetre Sig Sauer semi-automatic pistol. The appellant had purchased the pistol from a licensed Victorian firearms dealer and arranged for it to be delivered to Marksman where he collected it on Wednesday 10 August 2001. The following day he registered the pistol in his name at the Norwood Police Station.
The pistol was fitted with red-dot optical sights and a “compensator” (attached to muzzle) designed to reduce recoil. The pistol had a single trigger and a black textured handgrip. An opening in the base of the pistol (magazine well) allowed for the insertion of a magazine, capable of holding 10 rounds of 9 millimetre ammunition. The pistol was supplied in a hard plastic firearms case (“the case”). The case had a hard foam insert glued into it. The foam insert had several customised cut outs designed to separately accommodate the pistol and its attached optical sight, several magazines and other accessories. The pistol cut out was shaped such that the pistol could not be completely inserted if a magazine was in the magazine well or the hammer was cocked.[28]
[28] Report of Brevett Sergeant Andrew Plummer, Forensics Response Section (Ballistics Section) dated 28 February 2012: Appeal Book 2 (Exhibit A3) Tab 53 at p234.
Broadly speaking, the pistol was designed to fire a projectile (bullet) from a cartridge case (round of ammunition) lodged in the firing chamber of the pistol when sufficient pressure was applied to the trigger to cause the firing pin to strike the base of the cartridge case. The pistol’s “slide” would then automatically move backwards causing the spent case to be extracted from the firing chamber and ejected from the pistol. A live round of ammunition would then be automatically extracted from the magazine and fed into the firing chamber.[29] The pistol was designed to fire and automatically reload in this manner in three one thousandths of a second.
[29] Report of Brevett Sergeant Andrew Plummer, Forensics Response Section (Ballistics Section) dated 28 February 2012: Appeal Book 2 (Exhibit A3) Tab 53 at p234.
The incident: an overview
The following is an outline of the relevant events that occurred at Marksman on Friday 12 August 2011.[30] The outline identifies the various acts of unsafe handling of the pistol alleged by the respondent. However, I will discuss each allegation, and the relevant evidence, in more detail later.
[30] The facts outlined were not in dispute on the hearing of the appeal unless stated otherwise.
At about 2.50pm on Friday 12 August 2011 the appellant attended Marksman with his new pistol to practice for a shooting competition to be held the following day.[31] Upon arrival he was taken into Range B and set up in bay 5. The appellant removed the pistol from the case, loaded and inserted a magazine and commenced firing. Occasionally, the pistol’s slide locked and failed to automatically extract the spent cartridge case causing the pistol to jam. Initially, the appellant was able to clear the pistol by removing or “dropping” the magazine and manually “racking the slide” to remove the spent case. After about 10 minutes the appellant was unable to clear the pistol in that manner and decided to get assistance.
Appellant leaves Range B to obtain assistance
[31] Statement of appellant dated 18 November 2011 Appeal Book 1 (Exhibit A2) Tab 34 at p149.
The appellant placed the pistol on the counter[32] and walked from Range B into the reception area where he explained to Mr Marks the problem that he was having with the pistol. Mr Marks agreed to assist him. The respondent contends that the appellant erred in leaving the loaded pistol unattended while he spoke to Mr Marks in the reception area. CI Ralphs determined that this was the first of four occasions when the appellant wrongly “abandoned” his pistol.[33] It is convenient to refer to this event as the “first incident”.
[32] On the appellant's case he left the pistol on the counter pointing down range (towards the target). The DVD shows the pistol on the counter (while the appellant was in the reception area). However the direction in which the pistol was pointing cannot be determined from the footage. The respondent, however, does not dispute that the pistol was pointing down range at this stage.
[33] Letter from CI Ralphs to appellant dated 28 March 2012 Appeal Book 2 (Exhibit A3) Tab 62 at 283.
The events recorded on the DVD, commenced at 15:00:00 (3pm), shortly after the appellant went into the reception area.
At 15:01:01 the appellant re-entered Range B and waited for Mr Marks.
Mr Marks attends Range B for first time
At 15:01:39 Mr Marks entered Range B. At the time the appellant was examining the pistol at the counter in bay 5. The appellant showed Mr Marks the pistol while holding it in both hands. Mr Marks took the pistol from the appellant, manually cleared it and then proceeded to fire it. However, the slide occasionally locked. Mr Marks informed the appellant that he suspected the pistol was malfunctioning because the appellant was using low power ammunition. Mr Marks then placed the pistol on the counter (pointing down range) and left to obtain high power ammunition from the reception area.
In CI Ralphs’ reasons for cancelling the appellant’s licence he asserted that the appellant “waved” the pistol around in an unsafe manner.[34] He did not specifically refer to the abovementioned occasion of the appellant showing Mr Marks the pistol as such an act. However, on the hearing of the appeal counsel submitted that he did.[35] From my reading of CI Ralphs’ reasons, it is not clear to me that he did regard the appellant’s conduct in showing Mr Marks the pistol on this occasion as an inappropriate waving around of the firearm. I will proceed on the basis that counsel’s understanding is correct and refer to this event as the “second incident”.
Appellant remains in Range B
[34] Letter from CI Ralphs to appellant dated 28 March 2012 Appeal Book 2 (Exhibit A3) Tab 62 at pp280, 283.
[35] Appeal transcript – T37 (appellant’s submissions) T50 (respondent’s submissions).
Between 15:02:48 and 15:03:54 the appellant remained in Range B waiting for Mr Marks to return. During that time he did not handle the pistol. However, at one point (15:03:35), he walked over to the rear table and handled some object. The appellant stayed in the vicinity of the rear table for about 10 seconds and then returned to bay 5.
On the respondent’s case, the appellant’s conduct in leaving the pistol on the counter while he went to the rear table was the second occasion when he abandoned the firearm.[36] This will be referred to as the “third incident”.
Mr Marks attends Range B for second time
[36] Letter from CI Ralphs to appellant dated 28 March 2012 Appeal Book 2 (Exhibit A3) Tab 62 at p283; see also counsels submissions T38 (appellant) T50 (respondent).
At 15:03:54 Mr Marks re-entered Range B carrying two boxes of ammunition which he had obtained from the reception area. At the time the appellant was standing in the vicinity of firing bay 5. Mr Marks placed the boxes of ammunition on the rear table where he was joined by the appellant. Mr Marks then took some ammunition from one of the boxes and walked over to bay 5 and picked up the pistol from the counter. He then loaded the pistol with the new ammunition and fired. However, it occasionally jammed.
At 15:05:46 Mr Marks put the pistol down on the counter and returned to the rear table and obtained some further ammunition. The appellant followed him over to the table. Mr Marks and the appellant then returned to firing bay 5. Mr Marks loaded the pistol with new ammunition and spoke to the appellant. While speaking to the appellant Mr Marks pointed the pistol down range but at an angle to the left of the target. At one point he pointed the pistol at an angle of about 45 degrees to the target. He then continued firing but once again the pistol jammed.
Mr Abbott argued that in leaving the pistol on the counter and walking over to the rear table to obtain more ammunition, Mr Marks performed the very act that has been alleged against the appellant as an act of abandoning the pistol. Mr Abbott further argued that in pointing the pistol at an angle to the left of the target, Mr Marks handled the pistol in manner similar to the way the appellant is alleged to have unsafely waved the pistol around. I will return to these arguments later.
At 15:07:10 Michael Callaway, a Marksman employee (Range Officer), entered Range B and asked Mr Marks to assist him in relation to a firearm that was being used in Range A.
At 15:08:22 Mr Marks left the appellant’s pistol on the counter of bay 5 (facing down range) and collected a box of ammunition which he handed to the appellant. Mr Callaway and Mr Marks then entered Range A.
Appellant remains in Range B
After Mr Marks and Mr Callaway left Range B the appellant loaded the pistol with high power ammunition and fired several shots. However, the pistol jammed again and the appellant placed the pistol on the counter to the right of the case. The case was open on the counter with its hinged lid resting vertically against the partition between bays 4 and 5.[37] The configuration of the cut outs in the foam insert cannot be seen on the DVD. However, it is clear from the construction of the case and its position as depicted on the DVD that the “muzzle end” of the cut out for the pistol would have been pointing up range (away from the target).
Mr Marks attends Range B for third time
[37] The case had been in that position from the time the appellant first arrived in bay 5 and removed the firearm from the case.
At 15:10:32 Mr Marks re-entered Range B and approached the appellant who was standing in front of the counter in bay 5. The appellant removed a box of ammunition from the case and handed it to Mr Marks. Mr Marks placed the box on the rear table and then rejoined the appellant at bay 5 (15:10:48).
At about 15:10:53 the appellant appeared to place something on or in the open case. At about 15:10:55 the appellant picked up the pistol and pointed it down range at an angle of about 45 degrees to the target while showing or discussing it with Mr Marks. The respondent contends that this involved waving the loaded pistol around in an unsafe manner. This is denied by the appellant.
At 15:11:06 the appellant put the pistol down. There is substantial conflict as to the position in which the pistol was placed. The respondent contends that the appellant carelessly placed the pistol in the foam cut out for the pistol resulting in the muzzle pointing up range (towards Mr Marks).[38] It is the case for the appellant that the pistol was not placed inside the foam insert but on top of it so that it was pointing down range, slightly to the left of the target (11 o’clock if the target was 12 o’clock).
[38] CI Ralphs also suggested in his reasons for decision that the appellant by his conduct "abandoned" his pistol. I must admit that I do not understand the latter allegation. The appellant never left the pistol between the time he put it down and the time Mr Marks was shot.
At 15:11:27 Mr Marks commenced a manoeuvre which resulted in the accidental discharge of the pistol. While holding the partition, separating bay 4 from bay 5, with his left hand he leant forward balancing on one leg (right) and reached into bay 5 with his outstretched right arm. He reached in almost side on with his back turned to the appellant and made contact with the pistol with his right hand. At 15:11:29 the pistol discharged and Mr Marks reeled backwards and collapsed on the floor with a bullet wound to his right hip.
I will refer to the events described above as the “fourth incident”.
It should be observed that there is no dispute that the pistol discharged as a result of Mr Marks touching the trigger and that the muzzle of the pistol was in the foam cut out pointing up range (towards Mr Marks) when it discharged. These facts were established by a subsequent forensic examination of the pistol and the case conducted by Brevett Sergeant Andrew Plummer (“Sgt Plummer”), Forensic Response Section (Ballistics Section).
In his report dated 28 February 2012, Sgt Plummer described the nature of the damage to the case:[39]
There was damage to the foam and plastic carry case consistent with a single bullet path. The foam adjacent the location of the muzzle of the firearm was torn in front and on top of the compensator. The damage at the top end of the compensator indicated that the muzzle was correctly positioned in the end of the cut out.
… The tearing of this foam appeared to form a continuous path from this point across the top of the left-most magazine cut-out, and exiting the plastic case through its left side. The exit hole was an irregular shaped hole approximately 2mm wide by 4mm tall, surrounded by a raised circular deformation approximately 8 mm in diameter-the nature of this deformation indicated that the bullet causing the damage had originated within the case.
A thin probe inserted along this path aligned neatly with muzzle of the firearm when inserted into the cut-out. This probe had a downward angle of approximately 6 degrees…
(my underlining)
[39] Report of Sgt Plummer dated 28 February 2012: Appeal Book 2 (Exhibit A3) Tab 53 at p 234.
He added:[40]
From this examination, I formed the opinion that a single shot had been discharged while the firearm was within the case. One possible explanation for the down ward angle of the bullet damage is that the firearm was not correctly fitted within its foam cut-out-the muzzle of the firearm could be in its correct position, with rear part of the firearm resting on the foam cut out. This is supported by the fact that the firearm cannot be inserted into the cut-out if the hammer was cocked.
[40] Report of Sgt Plummer dated 28 February 2012: Appeal Book 2 (Exhibit 3A) Tab 53 at p235-236.
Sgt Plummer also found that the pistol would not accidentally discharge when subjected to a series of safety tests designed to simulate bumps and knocks that might be encountered during rough handling. The safety tests established that the pistol supported a weight on the trigger of between 1.3 and 1.4 kilograms before the pistol would discharge. Sgt Plummer concluded:[41]
[T]hat some object had been inserted into [the] trigger guard and depressed the trigger causing the firearm to discharge.
[41] Report of Sgt Plummer dated 28 February 2012: Appeal Book 2 (Exhibit 3A) Tab 53 at p236.
The contentious issue is whether the appellant had placed the loaded pistol in the foam cut out so that the muzzle was pointing up range (as the respondent contends) or whether he placed the pistol on top of the foam insert pointing down range but to the left of the target (as the appellant contends). It is the case for the appellant that in the course of reaching into bay 5 and handling the pistol Mr Marks rotated the firearm into the cut out and depressed the trigger.
Assistance from Mr Callaway and others
After Mr Marks collapsed on the floor (15:11:32) staff members including Mr Callaway entered Range B and attended to Mr Marks. Other staff members including Mr Marks Senior attended a short while later. While Mr Marks was being attended to the appellant watched. He was obviously distressed and concerned for Mr Marks’ welfare.
At one point (15:12:14) while Mr Marks was being assisted by Mr Callaway, the appellant walked over to the counter in bay 5 and picked up the pistol from the plastic case. It is the appellant’s case[42] that he removed the magazine clip from the pistol, racked the slide to check that the chamber was empty and placed the pistol back on top of the foam insert. It should be observed that there is no evidence that contradicts the appellant’s account that he unloaded the weapon in this manner. Mr Callaway stated that while he was attending to Mr Marks the appellant “continued to pick up the gun attempting to disengage it”.[43]
[42] Statement of the appellant dated 18 November 2011: Appeal Book 1 (Exhibit A2) Tab 34 at p152 [7.3]; see also uncontradicted submissions on appeal by appellant’s counsel (T46 lines 16-17).
[43] Statement of Constable A Van Donderen signed dated 18 August 2011: Appeal Book 1 (Exhibit A2) Tab 20 p109-110.
In CI Ralphs’ reasons for cancelling the appellant’s licence he specifically referred to this aspect of Mr Callaway’s statement. It is not clear from CI Ralphs’ reasons what significance he attached to Mr Callaway’s observations but I have assumed - as did counsel on the hearing of the appeal - that he considered this to be evidence of a further instance of waving or unsafe handling of the pistol by the appellant (“fifth incident”).
Medical assistance
At 15:20:27 two paramedics arrived in Range B and took over the treatment of Mr Marks, who was still on the floor. While they were attending to Mr Marks the appellant stood with his back against the western wall and slumped to the floor. He was assisted to his feet by a paramedic and Mr Marks Senior. The appellant then left Range B and sat in the reception area until police arrived.[44] At 15:30:00 Mr Marks was removed from the range by paramedics and conveyed by ambulance to hospital. Fortunately, he did not suffer life threatening injuries.
Police attendance
[44] During the time that Mr Marks was being treated by the paramedics, and earlier when Mr Callaway was attending to him, the appellant moved the case on the counter. However, it is not alleged that he did this for any dishonest purpose.
At about 3.45pm Constables A Van Donderen and B Griffiths attended Marksman in relation to the shooting. The police officers approached the appellant who was sitting on a chair in Range B. The appellant was “visibly upset” and “sweating profusely”.[45] A statement given by Constable Van Donderen describes the events that followed:[46]
…I asked him to explain to me what had happened. Craddock stood up out of his chair and began giving me his version of events.
Whilst he was doing this I became distracted by the police radio calling me. As I was talking on the radio I noticed Craddock had moved into the nearby bay that we were standing near and was now holding a pistol, still talking to me about what had happened, not realising I was talking on the radio and not to him. Craddock was extremely upset and seemed desperate to explain to me what had happened.
I immediately directed Craddock to put the pistol down and step away from the bay. I then realised that the bay Craddock was standing in was where the incident had happened, I saw the pistol on the bench that Craddock had placed down right next to the pistol case. The pistol was on the bench with the barrel facing left when looking down range. The pistol case was also on the bench in the bay immediately to the left of the pistol.
(my underlining)
[45] Statement of Constable A Van Donderen signed dated 18 August 2011: Appeal Book 1 (Exhibit A2) Tab 20 p109.
[46] Statement of Constable A Van Donderen signed dated 18 August 2011: Appeal Book 1 (Exhibit A2) Tab 20 p109-110.
This description of the appellant’s handling of the pistol is another occasion when the appellant is alleged to have “abandoned” his pistol[47] and to have placed it on the counter in an unsafe position.[48] I shall refer to these events as the “sixth incident”.
[47] Letter from CI Ralphs to appellant dated 28 March 2012: Appeal Book 2 (Exhibit A3) Tab 62.
[48] Letter from CI Ralphs to appellant dated 28 March 2012: Appeal Book 2 (Exhibit A3) Tab 62.
At 4.30pm Constable Van Donderen obtained a statement from the appellant which the police officer recorded in handwriting in his notebook. Upon completion of the statement the appellant initialled each page of the notes.[49] The appellant gave the following account of the lead up to the shooting:
I was in range B, bay 5 shooting with my new “sig sauer” 9 millimetre pistol.
I had been shooting for about 10 or 15 minutes. The pistol had repeatedly jammed during this time.
Jess Marks who is an employee of Marksman Indoor Firing Range came over. I told him my pistol had continued to jam, he had a few shots himself, about 10 or 12 shots.
We were shooting at a 10 meter range. Jess thought the pistol may have been jamming because of an ammunition problem. He walked off to get some new different ammunition. He left the gun on the bench in my bay.
He returned shortly after with new ammunition. I believe it was American Eagle.
Jess loaded the pistol up with the new ammunition. He had about 8-10 more shots. It continued to jam on him. Jess gave me some of the new ammunition and left the pistol on the bench. He told me too (sic) keep trying and walked off.
[49] Copy handwritten notes of Constable Van Donderen: Appeal Book 1 (Exhibit A2) Tab 21.
In relation to the events that occurred immediately before Mr Marks was shot, the appellant said:
I had a further three more shots and it jammed on me again. I tried to extract the magazine and failed. I tried to extract the magazine by pushing the external magazine release button and also tried to cock it. I tried this several times but both the slide and the magazine were jammed.
The case was on the bench in front of me. I placed the gun in the open case on top of the foam, the muzzle may have slipped into the foam cut out. I had tried at home previously to fit the gun in the foam cut out but it is very tight.
I turned around and saw Jess. I said “Please take it Jess”.
Jess was slightly to the left of me, he reached over with one of his arms and kind of was pressing the rear of the pistol into the foam cut out of the case.
I heard a bang. I heard the pistol go off.
Jess said something along the lines of “I’ve been shot”.
He then slumped to the floor on his side. I immediately picked up the pistol and managed to release the magazine. I checked the chamber and saw that it was empty. I placed it back on top of the foam in the case and stepped back…
The appellant added:
I had initially called Jess Marks to come into my bay when the pistol started to jam.
When Jess came over to push the pistol in the foam cut out, I had left the pistol on top of the foam in the case with the barrel pointing left and towards the range.
Jess is quite a big person and may have been slightly in front of me. I saw him reach towards the case and saw his arm moving down as though trying to push the pistol down.
The appellant also drew in Constable Van Donderen’s notebook a sketch indicating the position of the pistol before Mr Marks reached in and handled the pistol. The sketch indicates that the pistol was positioned on top of the foam insert and pointed down range at an angle to the left of the target.
Suspension of licence
On Saturday 13 August 2011 CI Ralphs suspended the appellant’s firearm pending an investigation as to whether his licence should be cancelled.[50] The reasons for his decision were set out in a letter to the appellant of 13 August 2011 (incorrectly dated 11 August 2011).[51]
[50] s20(2) FA.
[51] Letter from CI Ralphs to appellant Appeal Book 1 (Exhibit A2) Tab 16.
The letter of suspension was served on the appellant at his home by Senior Constable (SC) Durand from the Firearms Branch on the afternoon of 13 August. At the time of receiving the letter the appellant was interviewed by SC Durand. The interview was recorded but no copy of the recording was supplied to the appellant. The Firearms Branch subsequently prepared a draft typewritten statement said to be based on SC Durand’s interview with the appellant on 13 August 2011. The appellant first saw the draft after it was supplied to his solicitors, Cosoff Cudmore Knox (CCK), on 6 October 2011.[52] The draft contained a passage which the respondent has relied upon, at least on the hearing of the appeal, as an inconsistent statement made by the appellant as to the position in which he placed the pistol on the plastic case immediately before Mr Marks was shot.[53]
[52] Statement of the appellant Appeal Book 1 (Exhibit A2) Tab 34 at 147[1.5].
[53] Respondent’s written submissions filed on 5 November 2012 [52]-[52.2].
The draft states:[54]
I reloaded the pistol with 4 to 5 rounds and began shooting. I think I fired about 3 rounds and the pistol seized up so tightly that I could not clear the pistol. I could not drop the magazine or rack the slide. So I took my gun case box, which was on one side of the bench. I think the left side. Opened the box, which has foam cut out spaces to take magazines, revolvers and accessories. I put the barrel end into the cut out space for the pistol, the barrel sank easily into the cut out space. The pistol was slightly raised up at the rear. As far as I remember the pistol itself was pointing down range at the targets to the left hand side at a slight angle. I just left it there and walked towards range A and told jess the pistol had seized up and I could not do anything further and for jess to take it.
(my underlining)
[54] Appeal Book 1 (Exhibit A2) Tab 17.
In my view, no weight should be attached to the above passage in determining this appeal for the following reasons. First, the passage was not specifically mentioned by CI Ralphs in his reasons for cancelling the appellant’s licence. Second, the draft statement was not signed, or adopted in any other way, by the appellant. Third, the passage is inconsistent with the statement the appellant made to Constable Van Donderen the day before he was interviewed by SC Durand. Fourth, it is inconsistent with all subsequent statements made by the appellant on this topic.[55] Indeed, following SC Durand’s attendance on 13 August 2011, the appellant wrote to Sgt Peter Walter-Smith of the Firearms Branch on the same day, and requested that no formal action be taken.[56] The letter concluded as follows:[57]
In conclusion may I state I regard myself as an experienced pistol shooter who is always meticulous about safety. I have had no safety issues in over 60 years of shooting. My friends regard me as a perfectionist, as all good surgeons are. I believe that I followed all the safety rules and I am dismayed and distressed by what I regard as an accident. I am also greatly distressed at the suggestion that I would place the gun pointing rearward in a dangerous manner. It is also untrue that I attempted to place the gun into its case while it was still loaded. Again, this I would never do. I simply rested the gun on the open case.
(my underlining)
[55] Letter from appellant to Sgt Peter Walter-Smith dated 13 August 2011 Appeal Book 1 (Exhibit A2) Tab 19; letter from appellant to Sgt Peter Walter-Smith dated 21 August 2011 Appeal Book 1 (Exhibit A2) Tab 23; statement of appellant dated 18 November 2011 taken by CCK Appeal book 1 (Exhibit A2) Tab 34 at p150.
[56] Letter from appellant to Sgt Peter Walter-Smith dated 13 August 2011 Appeal Book 1 (Exhibit A2) Tab 19.
[57] Letter from appellant to Sgt Peter Walter-Smith dated 13 August 2011 Appeal Book 1 (Exhibit A2) Tab 19 at p107.
Subsequent investigation
During the ensuing weeks members of the Firearms Branch investigated the shooting incident. Statements were obtained or received by police from various persons who were present at Marksman on the day of the incident including Mr Callaway[58] and Mr Marks. The statement given by Mr Marks was received by the Firearms Branch from Mr Marks’ solicitor on 16 September 2011.[59]
[58] Unsigned statement of Michael Callaway Appeal Book 1 (Exhibit A2) Tab 13.
[59] Unsigned and undated statement of Mathew Jess Marks Appeal Book 1 (Exhibit A2) Tab 12.
The relevant parts of his statement are as follows:
17At approximately 1450 hrs on the 12th August 2011, I returned to Marksman Indoor Firing Range with my father, Mr Andrew Marks. ….
18 ….
19Upon entering the premises I went towards the Range reception counter to speak to the Range Offices on duty. My intention was to pass a message from Mr Low to Range staff regarding a firearm part for Dr David Craddock.
20Dr Craddock is a member of the Adelaide Indoor Firearms Association (AIFA) who regularly attends the Range facility for AIFA Club shooting purposes.
21Dr Craddock was in the vicinity of the counter area and I explained to him that the firearm part required by him would not be ready until the following Monday 15th August 2011.
22Dr Craddock acknowledged this information and went on to explain that he was having problems with another firearm that he had recently purchased.
23The firearm Dr Craddock was referring to was a Sig Sauer P226 S-Automatic 9mm pistol which was designed/modified for speed shooting. Such modifications included a compensator on the muzzle to reduce recoil and a lightened single action trigger.
24Dr Craddock explained the firearm was not functioning correctly as it was failing to extract and eject the empty shell casings from the firearm.
25I explained to Dr Craddock that I thought that the most likely cause of this problem was that the recoil spring was too heavy for the compensated barrel.
26Dr Craddock asked if I could come into the range and test the firearm. I agreed to do so. I entered behind the Reception area of range facility and gathered a selection of 9mm factory ammunition in order to test the firearm.
27At around 1505 hours I went into the Range with the ammunition and approached Dr Craddock who was in bay 5 of Range B.
28I inspected the ammunition that was already on the bench of Bay 5 and identified it as Winchester “WinClean” 115 grain 9mm ammunition. This ammunition, from my experience, did not supply sufficient pressure to cycle compensated firearms.
29I took some Federal American Eagle 115 FMJ 9mm ammunition and Winchester “USA Brand” 115grn FMJ 9mm ammunition and loaded one magazine with each type of ammunition. These two types of ammunition have previously proved more successful in functioning competition style firearms.
30I asked Dr Craddock to step back from the bench and proceeded to test both types of ammunition through his firearm. With each type of ammunition the firearm failed to function with consistency.
31I explained to Dr Craddock that I believed that the firearm would not function consistently with any factory ammunition and that it would be necessary (sic) have the recoil spring replaced or modified.
32I asked David to unload the magazine and secure the firearm into the gun box so I could then take possession of the firearm into the Marksman firearms dealership to undertake the necessary repairs.
33At this time Range Safety Officer Michael Callaway asked for my assistance with a shotgun that was not functioning correctly.
34I left Dr Craddock to complete unloading the firearm and securing it in the gun case and followed Mr Callaway into Range A to function test the shotgun. I function tested the shotgun and discussed the cause of the malfunction with Mr Callaway. I was in Range A for approximately 3 to 4 minutes. I then left Range A and returned to Range B.
35Upon entering Range B I spoke briefly with Dr Craddock about his firearm not functioning correctly. At this time I noticed ammunition on the bench of Bay 5 and gave Dr Craddock a box in which to place the ammunition.
36I saw Dr Craddock was handling the firearm and saw him place the firearm into to (sic) gun box with the top of the box still open.
37I saw that the position of the firearm was such that the firearm was not pointing down range but back towards the firing line and that the hammer of the firearm appeared to be.(sic)
38Dr Craddock was still asking questions regarding why the firearm was not working.
39I was concerned with the position and condition of the firearm and approached the firearm box intending to rotate the box to point down range prior to removing the firearm from the box to check that it was unloaded and no longer cocked. I did so because the position of the firearm was unsafe and I wanted to ensure that the firearm was in a safe condition and not loaded prior to taking it to be written into the Dealers Repair Book.
40I began explaining to Dr Craddock what I intended to do and Dr Craddock moved back away from the bench.
41I leaned into the firing bay and reached for the gun box with my right hand. The instant I made contact with (sic) box there was a load (sic) crack and puff of smoke. I was momentarily confused and at the same time felt an impact and intense burning pain in my right hip. I then realised that I had been shot and called out words to the effect “I’ve been shot” several times as I fell to the ground.
(my underlining)
Application for review of decision to suspend licence
By letter dated 7 September 2011 the respondent advised the appellant of his right to have the decision to suspend his licence reviewed. Shortly after receiving the letter the appellant instructed CCK to act for him.[60]
[60] Affidavit of Joseph Robert Henderson sworn on 13 April 2012 [25]-[26]: Appeal Book 1 (Exhibit A2) Tab 3 p11.
On 8 September 2011 CI Ralphs received a letter from CCK requesting that he refer the suspension of the appellant’s firearms licence to the FRC for review of the decision pursuant to s26B of the FA.[61] In accordance with the appellant’s request, the matter was referred to the FRC.
[61] Letter from CCK to CI Ralphs dated 8 September 2011 Appeal Book 1 (Exhibit A2) Tab 27.
By letter dated 18 November 2011 CCK requested that the respondent stay the suspension of the appellant’s licence until the FRC had conducted its review.[62] A statement from the appellant obtained by CCK was enclosed with the letter.[63]
[62] Letter from CCK to CI Ralphs dated 18 November 2011 Appeal Book 2 (Exhibit A3) Tab 35.
[63] Statement of appellant dated 18 November 2011 Appeal Book 2 (Exhibit A3) Tab 34.
The statement set out the appellant’s background and experience with firearms as summarised earlier.
The statement contained the following account of the shooting and the events leading up to it:
6. The seizing of the pistol and locking up of the pistol
6.1I noticed that every second or third shoot the pistol slide would seize up. The first couple of times I was able to clear the pistol myself, by dropping the magazine and racking the slide, then checking that the barrel was clear as per normal safety procedures.
6.2I continued shooting and again the pistol locked and I was unable to clear it. I had been shooting for about 10-15 minutes. I left the pistol on the bench and went out of the shooting range to the counter out the front. I spoke to a male employee, whom I know as Jess Marks and informed him that the pistol had locked up and I could not clear it.
6.3He stated to me that he just had to take some further clients to the adjacent shooting range, being Range A, get them settled and would come and help me.
6.4I returned to my shooting bay and shortly afterwards Jess Marks came and saw me. He stated he would like to try and fire the pistol. He was able, because of his strength, to clear the pistol and fired a few shots before it locked up on him. Jess Marks was able to clear the pistol as he is much stronger than me, and he could use more force. He was able to pull the cocking slide on the right side to pull the slide back to clear the pistol. Jess Marks encountered about three further lock ups when he shot. He stated to me that he thought the ammunition was the cause of the problem. He then left the shooting range and went out to the counter area out the front and returned with some American Eagle ammunition, which he stated was more powerfully loaded.
6.5Jess Marks loaded the pistol and proceeded to shoot with the pistol. The pistol was marginally better, but kept locking up. Jess Marks stated perhaps it is not the ammunition, but maybe the pistol needs a lighter recoil spring. He explained that my pistol had a powerful recoil spring which brings the slide back too quickly and strips the ammunition out of the round. So before one bullet can be removed from the chamber, the second one is trying to get in. So you have two bullets trying to occupy the one space. When a semi-automatic pistol is locked, it must be loaded because there is a bullet trying to get into the chamber. I asked Jess Marks if he could fix it and he stated he could.
6.6I told Jess Marks that he should just take the pistol back it is no good to me. As I can not use it if it keeps locking up all the time and for him to take it and fix it. Jess Marks stated to me to keep firing a few more rounds because sometimes these pistols take running in and stated they seize at the beginning and get better as you put more rounds through them. Jess Marks then left the shooting range and went into Range A with his other clients.
6.7I reloaded the pistol with 4 to 5 rounds and began shooting. I think I fired about 3 rounds and the pistol locked up so tightly that I could not clear the pistol. I could not drop the magazine and I could not rack the slide.
6.8So I took my gun case box, which was on one side of the bench. I think the left side. The box has foam cut out spaces to take magazines, revolvers and accessories. I placed the pistol on top of the foam, and the barrel may have chopped slightly into the cut out of the body of the pistol. The pistol was in the position indicated in figure 2 below. The pistol was slightly raised up at the rear. As far as I remember the pistol itself was pointing down range at the targets to the left hand side at a slight angle.
6.9Jess Marks entered the range and approached my bay. I picked up the pistol and again showed the problem I was experiencing to Jess Marks. As I was unable to clear the pistol I put it back in the box in the manner as described in paragraph 6.8. Jess Marks had himself attempted to clear the gun on a number of occasions, so he would have known that when the pistol was in this condition it had a bullet in the chamber. Jess was standing next to me when I put the pistol back in the box. The gun was pointing down range. I am sure that if I had put the pistol down in a manner that presented a risk to another person, which I have been trained never to do, Jess Marks would have immediately told me to correct it. Further, I would not have allowed Jess Marks to stand in a position that presented a risk to him. For this reason, I believe the gun was pointing down range as neither he nor I raised an objection.
6.10Below is a diagram which represents how the pelican case was placed on the bench. The shaded area represents the ‘cut out’ for the pistol.
6.11The diagram below shows how I placed the pistol on the open pelican box, which shows that the barrel was pointing down range and above the ‘cut out’ for the chamber and butt of the gun. The pistol was still locked so the slide would have been rearward by approximately two centimetres. The diagram below is consistent with the sketch on my statement given on 12 August 2011. A copy of that is attached to this statement and marked ‘D’.
7.The discharge of the pistol
7.1Jess Marks and I briefly discussed the pistol and the problems with it. I then asked Jess Marks to take the pistol. I stepped back and Jess Marks moved in front of me and reached around with his, I think, right hand and in a flat position and pushed the rear of the pistol down back into the foam cut out with the flat of his hand and it went bang. He said, “I’ve been shot”. I did not say anything to Jess Marks immediately before he handled the pistol because it happened so quickly.
7.2Jess Marks staggered back. Although I had two episodes before where I had not been able to clear it. I definitely told Jess Marks that the gun was locked: I said, ‘Jess, it is locked up again. I do not want to shoot it.’ I do not remember at the time whether I told Jess Marks that it was loaded. I thought that he would understand that, because the pistol was locked, it was still loaded. It had not been cleared. The rack was rearward. I think when Jess Marks pushed the pistol down he probably caused the slide to unlock in some way. I did see the pistol twist around a bit towards the left hand side slightly prior to the shot.
7.3I was in shock and stood back against the wall. I then saw Jess Marks lying on the ground and the pistol was still lying on top of the case. I thought I did not want anybody else to get shot. I noticed that the barrel end was still sunken into the foam cut out and the pistol was pointing sideways to the left hand side. So I picked it up dropped the magazine, which came out this time as the slide had come forward and released the blockage, racked the slide to check the chamber was empty and locked the slide then put the pistol back on top of the my (sic) case.
7.4I asked Jess Marks how he was feeling and being a retired doctor and asked a few medical questions. I got the impression he was not badly hurt as he could move his legs and no blood was coming out.
7.5Shortly after this the ambulance staff arrived and treated him and I then left the range and sat in the front area of the premises until police arrived.
First Firearms Review Committee hearing
The hearing in relation to the suspension of the appellant’s firearms licence was conducted by the FRC on 15 February 2012. The appellant and his solicitors attended the hearing. The FRC who constituted the quorum were: Mr Robert Hamdorf (FRC Chairman and retired police officer); Mrs Yvonne Hill (Olympic Games shooter); Mrs Heather Dodd (shooting club member); and Dr Geoffrey O’Halloran-Hyde (medical practitioner).
The FRC was provided with material relating to the incident including the DVD, a colour booklet containing all of the CCTV images for the sixty seconds prior to the discharge of the firearm, witness statements and correspondence between the respondent and the appellant/CCK.
By letter dated 17 February 2012 the FRC informed CI Ralphs that it had decided to remit the matter to him for further consideration pursuant to s 26B(8)(b) FA.[64] The letter stated:
The committee has made the decision on the following basis
·The unsafe handling of a firearm on the bench. There is no evidence of unsafe handling by Dr Craddock.
·Poor range management by Mr Marks who should have kept Dr Craddock well clear of the range bench and the fact that Mr Marks should have placed himself in a safe position when it was clear that an unsafe firearm was on the bench.
[64] Letter from FRC to CI Ralphs dated 17 February 2011: Appeal Book 2 (Exhibit A3) Tab 51.
Cancellation of Firearms Licence
On 6 March 2012 CI Ralphs received the report of Sgt Plummer and met with him two days later to discuss his report.
On 13 March 2012 CI Ralphs wrote to CCK reaffirming his decision to suspend the appellant’s licence. He further advised that he was considering cancelling the appellant’s licence.[65]
[65] Letter from CI Ralphs to appellant dated 28 March 2012: Appeal Book 2 (Exhibit A3) Tab 58.
On 23 March 2012 CI Ralphs received written submissions from CCK on behalf of the appellant.[66]
[66] Letter from CCK to respondent dated 23 March 2012: Appeal Book 2 (Exhibit A3) Tab 61.
On 28 March 2012 CI Ralphs wrote to the appellant notifying him of his decision to cancel the appellant’s firearms licence.[67] The letter set out the powers of the Registrar to suspend, vary or cancel a firearms licence and the grounds upon which a person may be taken not to be a fit and proper person under s5(11)-(12). No reference was made to s5(13). The letter went on to summarise some of the factual background and then stated:[68]
[67] Letter from CI Ralphs to appellant dated 29 May 2012: Appeal Book 2 (Exhibit A3) Tab 62.
[68] In setting out the letter I have footnoted references to what I have described as the six incidents.
Witness statements
The witness statements are conflicting in some respects. The pertinent aspects of the statements are as follows:
Statements of Dr Craddock
You have stated shortly before Mr Marks left you on the first occasion of providing assistance, he told you to continue firing the pistol and that you did so. The pistol seized and you were unable to clear it. Upon Mr Marks’ return, you say you showed him the pistol and then he placed it on the case pointing down range, across the cut out shape of the foam.[69]
[69] CI Ralphs erroneously asserted that it was the appellant's case that Mr Marks placed the pistol on top of the case. On appeal counsel for the appellant was critical of this aspect of the CI Ralphs' reasons. In my view, nothing turns on this discrepancy. Later in CI Ralphs' reasons he correctly pointed out that the appellant had placed the pistol down immediately before the shooting. Furthermore that fact is common ground.
Further, you state after the incident the magazine was still attached to the pistol and you managed to release the magazine and check the chamber.
Jess Marks
Mr Marks stated he assisted you to use different ammunition. However, the pistol did not function with consistency. Mr Marks expressed an opinion that the pistol would not function consistently with any factory ammunition and that the recoil spring should be replaced or modified. He stated you asked him to arrange to have the pistol fixed. Mr Marks then told you to unload the magazine and secure the pistol in the firearms case. He left anticipating this is what you would do. When Mr Marks returned he had a further conversation about the pistol. He stated he saw you handle the pistol and place it on the firearm case. He stated the pistol was pointing up range (his statement is also missing a word but the “impression” is he thought the hammer of the pistol was cocked). He stated he moved to rotate the box so that the pistol was pointing down range when the pistol discharged hitting him in the right hip.[70]
[70] Fourth incident.
Michael Callaway
Michael Callaway, also a Range Officer at Marksmans, came to Mr Marks’ assistance immediately following the incident. He states following the incident you “continued to pick up the pistol attempting to disengage it”.[71]
[71] Fifth incident.
Constable Van Donderen
Constable Van Donderen attended at the scene immediately following the shooting, and he interviewed you at the scene. He states while he was speaking with you he was distracted by a call from the police radio. While he was talking on the radio he noticed you have moved into a nearby bay (you were in a range room) and picked up the pistol and were handling it. When directed you put the pistol down and the barrel was facing left when looking down range. He also stated you were visibly upset.[72]
[72] Sixth incident.
Forensic and other evidence
CCTV Footage
After Mr Marks attends the second time[73] you can be observed showing the pistol to Mr Marks and “waving it around”.[74] This is despite the fact you say you were unable to clear the pistol or remove the magazine clip.
[73] The reference to "second time" is an error. The appellant did not handle the pistol on the second occasion Mr Marks was present in Range B. The allegation that the appellant waved the pistol around relates to the "third time" Mr Marks attended Range B which I have described as the fourth incident.
[74] Fourth incident.
After the pistol discharges hitting Mr Marks, you move the firearm case so that the lid of the case is open and facing down range. You also take the pistol out of the case and examine it. You do this without pointing the pistol down range. You state you were able to remove the magazine clip from the firearm after the incident and I conclude this is what you are doing at this point in the footage. However, you do not do so by pointing the pistol down range, which is in stark contrast to the subsequent safe actions of Mr Callaway.[75]
[75] Fifth incident.
Mr Callaway can be seen on the CCTV footage having attended to Mr Marks and assisting the ambulance officers, then moving to the pistol, pointing it down range and racking the slide. He is leaning over the range bench and pointing the pistol down range to do so.
It is evident from the CCTV footage and examination of the firearm case, the case was open on the bench of the range bay. The lid of the firearm case was open and resting on the divider between bay four and five. The cut out of the pistol was therefore facing up range. I note this is confirmed by the ballistics report.
Ballistic Report
Brevet Sergeant Andrew Plummer, a Forensic Firearms Examiner, examined the pelican case and the Sig Sauer pistol. He has provided an expert report.
He reports:
·The pistol was in good working order.
·The pistol malfunctioned when using lower powered ammunition in that it failed to eject the cartridge case in every instance.
·The pistol did not discharge when subjected to a series of safety tests to simulate bumps and knocks expected to be encountered during rough handling. BS Plummer concludes that the pistol fired by using the trigger.
·A single shot had been discharged while the firearm was within the case at which time the muzzle of the pistol was correctly placed in the foam cut out.
·The trajectory of the bullet had a slight downward angle. One explanation for this is that the rear part of the firearm may not have been correctly fitted within the case. This could be caused by the hammer being cocked and/or the magazine being attached.
BS Plummer has advised me verbally that the case is damaged near the hammer which suggests the pistol may have been cocked at the time it was placed in the case. I note that the pistol can be manually “uncocked” even with a spent cartridge in the chamber.
Your submissions of 23 March 2012
I note your submissions raise the length of time taken in this matter and I acknowledge this has been an unfortunately prolonged process. However, I do not consider this a relevant factor to consider in determining whether your firearms licence should be cancelled.
I have taken into consideration the decision of the Firearms Review Committee and its brief letter outlining its decision. It is maintained from the evidence and findings set out within this letter I do not accept the findings of the Committee that there is no evidence of unsafe handling by Dr Craddock. I acknowledge the actions of Mr Marks did not appropriately manage this situation but in my view this does not detract from your failure to follow basic safety protocol which must be observed particularly by a person of your firearms history.
I am concerned at your submission that you were unable to clear the pistol when it seized but you were “reluctant to use excessive force when handling the new and expensive pistol”. From this one may consider the need for safety would override any concern for a (robust) firearm.[76]
I do not accept that you placed the firearm as indicated in Figure 2 page 9 of submissions dated 23 March 2012. This is inconsistent with the ballistics report. I prefer the conclusions made by BS Plummer in this report and I adopt his findings.[77]
I acknowledge you have good character and have a long experience in the use of firearms. In my view in light of your lengthy experience you should have been particularly meticulous and careful in relation to your safe handling of the pistol.
I acknowledge your concerns regarding the systems at Marksmans concerning the calling of the range officer. However, this does not abdicate the responsibility of safe handling of a firearm by the holder of firearms licence.
Other relevant matters
I have taken the following additional relevant matters into consideration:
·The poor systems that would appear to have been in place at the range. There is no suggestion by the range staff you should not have abandoned your pistol by placing it on the bench. For example there appears to be no call button in each range bay to summon assistance.
·There is no evidence of breaches of safety protocols by you on other occasions.
·You have a long unblemished history as a user of firearms.
·You are a recreational user of firearms.
[76] First incident.
[77] Fourth incident.
Failure to follow basis safety protocols
Based on this evidence I make the following findings concerning the incident on 12 August 2012:
·The pistol malfunctioned when used with lower powered ammunition.
·You were unwilling to clear the pistol when it locked as you were concerned about possible damage [to] the new pistol. Instead you left a seized and possibly loaded pistol unattended while you sought assistance.[78]
[78] First incident.
·Once unable (or unwilling) to clear the pistol, you did not remain standing with your pistol pointing down range waiting for assistance. This would have been in accordance with ordinary safety protocols. You abandoned your pistol by leaving it on the range bay bench. You did this on four occasions – once before seeking Mr Marks’ assistance the first time,[79] when waiting for Mr Marks the second time,[80] again after showing the pistol to Mr Marks[81] and again when talking to Police.[82] This was particularly concerning following your inability to clear the pistol and disengage the magazine clip as at this time the possibility was that the pistol was loaded. You should have treated the pistol as if it was loaded.
·You showed the pistol to Mr Marks and did not have the pistol pointing down range. You waved the pistol around, that is you handled it in an open area, holding it out and showing it to Mr Marks despite the fact the pistol could have been (and in fact was) loaded.[83]
·You placed the pistol in the cut out of the case facing up range when the pistol was loaded and you should have, at the very least considered, the fact that the pistol was loaded (the loaded magazine was jammed into the weapon).[84]
·When speaking with Police you again picked up and examined the pistol in an unsafe fashion.[85]
In summary, I find you have failed to follow basis safety protocols and evidence indicates this is the case.
·You allowed your concerns regarding damage to the pistol to override basic safety protocols.
·You abandoned your pistol.
·You repeatedly failed to handle the pistol in a safe manner. This is particularly concerning once you had been unable to clear the pistol or to remove the magazine clip.
·You placed the pistol in the case and pointing up range at a time when you should have considered that the pistol may have been loaded. Evidence supports a conclusion that you placed the pistol in the case with the loaded magazine attached.[86]
Having considered all information available to me I am satisfied that you are not a fit and proper person to hold a firearms licence – pursuant to section 5(12) of the Act.
[79] First incident.
[80] Third incident.
[81] Fourth incident.
[82] Sixth incident.
[83] Fourth incident.
[84] Fourth incident.
[85] Sixth incident.
[86] Sixth incident.
By letter dated 26 April 2012 CCK wrote to the respondent requesting that the decision be reviewed by the FRC.[87] The matter was considered by the FRC.
[87] Appeal Book 2 (Exhibit A3) Tab 64 pp291-292.
On 18 May 2012 the FRC wrote to CI Ralphs advising him of the FRC’s decision to remit the file back to him for further consideration.[88] The letter stated:
The committee has made this decision on the following basis
·After careful consideration and observation of the CCTV footage the Committee is still unclear of the liability of Dr Craddock in relation to the accidental shooting of Mr Marks. Not withstanding his return to Booth 5 on 9 occasions and his handling of the gun case after the shooting that raise suspicions. However in the view of the Committee there is not enough clear evidence to Affirm the Delegate’s decision.
·The Committee feel that a closer test of a person reaching into a Booth in the same manner as Mr Marks did on the day might clarify if it was possible that he could have reached the gun case, or the pistol in the case, in the time frame and to such an extent that the pistol could have been rotated into the firing position at which the pistol discharged.
[88] Appeal Book 2 (Exhibit A3) Tab 66 p297.
CI Ralphs declined to act on the FRC’s recommendation (underlined above) and rejected the FRC’s assessment of the evidence.
By letter dated 29 May 2012 CI Ralphs informed the appellant that he had determined to uphold his decision to cancel the appellant’s licence for the following reasons:[89]
[89] Appeal Book 2 (Exhibit A3) Tab 68 at pp299-300.
The FRC in its correspondence addresses issues concerning whether the firearm was placed on the range bench by you pointing up range or down range. While this was and remains a factor in my decision I found and maintain my finding that on 12 August 2011 you repeatedly handled the firearm in an unsafe manner, including immediately preceding the shooting incident.
There is no dispute you placed the firearm case on the bench of the bay of the range with the foam cut out in such a position that when placed within the cut out, the barrel of the firearm was facing up range. This action was the first action in a course of conduct that was demonstrative of unsafe handling of the firearm.
The entirety of your conduct as indicated on the CCTV footage and in the statement of Police Constable Van Donderen is indicative of an overriding and primary concern for your new firearm and a consequent lack of concern for safety. This includes your repeated examination and handling of the firearm in the aftermath of the incident.
Regardless of whether the firearm was placed up range or down range by you immediately preceding the incident, I find that your repeated disregard for safety is a sufficient basis to cancel your licence in accordance with section 20(1)(b) and section 20(1a)(a).
However, I do find that the firearm was placed by you in the case facing up range and I do so for the following reasons:
1. Your position and stance immediately prior to placing the weapon in the case shortly before the shooting incident.
2. The position and stance of Mr Marks immediately prior to the shooting incident and in particularly (sic) the position of his right arm and elbow.
3. The position of the open lid of the case of the firearm. The fact that it is not disputed that the scope and magazine were attached to the weapon and the consequent difficulty in rotating the weapon in the manner indicated by you.
4. The two second time frame in which Mr Marks lent into the bay and the shooting.
5. The findings of the ballistician and the placement of the bullet hole in the firearm case. The barrel of the weapon was set in its position in the foam casing of the firearm case.
6. Your actions after the incident in repeatedly returning to the bay and handling the case and the firearm.
I note the concerns raised by the FRC concerning the “evident lack of control within Range B for the entirety of the incident” and the absence of a system to call a range officer for assistance, but despite these matters you as the owner and user of the firearm should have maintained proper firearm safety and for the reasons I have previously outlined you failed to do so.
I am not persuaded your failure to follow basic firearm safety was brought about by the actions of Mr Marks or the procedures on the range. A person licensed to possess firearms is obligated to follow safety procedures at all times.
Grounds of Appeal
The Amended Notice of Appeal dated 18 October 2012 specifies the following grounds of appeal:
1The Respondent erred in finding that the Appellant is not a fit and proper person to hold a firearms licence.
2The Respondent erred in finding that it would be contrary to public policy to permit the appellant to hold a firearms licence.
3The Respondent erred by failing to have regard, when determining the Appellant’s fitness to hold a firearm’s licence, to matters to which he was required by law to have regard.
4The Respondent erred in finding that the ‘firearm was placed…facing up range’. The Respondent on any objective view of the evidence before him, could not possibly be satisfied to the requisite extent that the firearm was placed by the Appellant facing up range.
5The Respondent purported to cancel the licence pursuant to section 20(1a) of the Act, being a section under which he had made no findings.
Further and in the alternative:
6.…
7.…
The sixth and seventh grounds were not pressed on the hearing of the appeal.[90] Accordingly, I have not included in the summary of the factual background reference to events relevant only to those grounds.
[90] Appeal transcript pp62-63.
As earlier stated all of the matters that the respondent is said to have relied upon in determining whether it would be contrary to the public interest to permit the appellant to continue to possess and use firearms are relevant to the question of whether he was a fit and proper person to hold a licence. For this reason there is also no need to consider grounds 2 and 5. Ground 4 is also effectively subsumed in ground 1.
Nature of an appeal
The conduct of an appeal pursuant to s26C of the FA is governed by s42E of the District Court Act 1991 (DCA) which states:
S42E-Conduct of appeal
(1)The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court, on an appeal –
(a) is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to the technicalities and legal forms.
(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
On the hearing of the appeal the Court may affirm the decision appealed against, rescind the decision and substitute a decision that the Court considers appropriate or remit matters to the original decision maker for consideration or further consideration with any directions or recommendations of the Court (s42F DCA).
CONSIDERATION
Ground 3: Respondent erred by failing to have regard, when determining the Appellant’s fitness to hold a firearm’s licence, to matters to which he was required by law to have regard.
This ground is based on the appellant’s contention that CI Ralphs failed to have regard to s5(13) in determining that the appellant was not a fit and proper person. As earlier pointed out in his reasons for decision the Chief Inspector set out the powers of the Registrar to suspend vary or cancel a firearms and the grounds upon which a person may be taken not to be a fit and proper person under s5(11)-(12) but made no reference was made to s5(13). Mr Abbot argued that it can be inferred that CI Ralphs failed to take into account the appellant’s good reputation, honesty and integrity in determining whether those factors outweighed the adverse considerations to which CI Ralphs had regard.
As earlier stated, I do not accept that the question of fitness and proprietary is a balancing exercise. A person may be unfit because he is dishonest, has a bad reputation or lacks integrity. On the other hand, an honest person with a good reputation may be unfit because he lacks the requisite competence, skill or ability to handle firearms. It seems to me that as a matter of logic, a person’s good character cannot outweigh such a deficiency.
This does not mean that a person’s good character may not be relevant to an assessment of fitness and proprietary where unsafe handling of a firearm is alleged. Where such an allegation is based on disputed events the good character of the person will be relevant in assessing the credibility and reliability of his or her account. Good character may also be relevant where a person is alleged to have deliberately mishandled a firearm. In such a case, the person’s previous good character and reputation may be relevant to show that he or she is unlikely to engage in such deliberate misconduct in the future.[91] But where unfitness is said to stem from careless or incompetent handling of a firearm it is difficult to see how a person's honesty, good reputation and integrity can have any significant bearing except in relation to issues of credibility and reliability as discussed above.
[91] See Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380.
The comments that I have made are directed at the relevance of honesty, good reputation and integrity in the context of cases where mishandling a firearm is alleged. Obviously, the fact that a person has a good record in relation to using and handling a firearm will be relevant in determining whether the person mishandled the firearm, if the allegation is disputed, and if the person did mishandle the firearm whether such conduct is likely to be repeated.
In the present case, CI Ralphs stated in his reasons for decision:
·I acknowledge you have good character and have a long experience in the use of firearms. In my view in light of your lengthy experience you should have been particularly meticulous and careful in relation to your safe handling of the pistol.
·There is no evidence of breaches of safety protocols by you on other occasions.
·You have a long unblemished history as a user of firearms.
The only express use CI Ralphs made of the appellant’s unblemished firearms history was adverse to the appellant. The Chief Inspector was right in emphasising that an experienced user of firearms should be appreciative of the importance of handling firearms safely. But nowhere does he seem to have considered the importance of the appellant’s unblemished record as a factor to be taken into account in determining whether the appellant would have mishandled the firearm given his level of competence and experience and his prior exemplary attitude towards handling firearms. Furthermore, CI Ralphs made no express use of the appellant’s good character in determining the credibility of his account of the relevant events. The appellant’s honesty and integrity was particularly crucial in evaluating the competing claims made by Mr Marks and the appellant as to the position in which the firearm was placed immediately before the shooting. If CI Ralphs did have regard to the appellant’s good character and firearms record for the purposes I have discussed he failed, in my view, to give those factors sufficient weight for reasons which are best discussed in the context of the following ground of appeal.
Ground 1: Respondent erred in finding that the Appellant is not a fit and proper person to hold a firearms licence.
CI Ralphs’ determination that the appellant was not a fit and proper person was based on his finding that in the course of each of the six incidents, summarised earlier, the appellant handled the pistol in an unsafe manner. It is necessary to consider the evidence relating to each incident separately.
First incident
CI Ralphs found that the appellant abandoned the jammed pistol on the counter when he went into the reception area to obtain assistance. It must be accepted that ordinarily the user of a firearm should not abandon a loaded firearm. However, the appellant’s conduct was mitigated by the following factors:
· First, there was no call button or intercom system which would have allowed the appellant to summon Marksman’s staff for assistance without leaving the firing range. It would appear that the appellant’s conduct in leaving the pistol on the counter to obtain assistance was not a practice disapproved of by Marksman’s staff. As CI Ralphs stated in his reasons:[92]
There is no suggestion by the range staff that you should not have abandoned your pistol by placing it on the bench.
· Second, it would have been inappropriate for the appellant to have taken the jammed pistol into the reception area when he sought assistance.
· Third, when the appellant went into the reception area there was only one person in Range B at the time and, at the time, he was busy shooting in bay 1 on the opposite side of the range to bay 5.
· Fourth, the reception area was adjacent to Range B. The appellant was away from the pistol for only a short time and no person entered Range B while he was absent.
[92] Letter from CI Ralphs to appellant dated 28 March 2012 Appeal Book 2 (Exhibit A3) Tab 62 at 282.
In the circumstances, there was no substantial risk of any person picking up the firearm while the appellant was in the reception area.[93]
[93] It should also be observed that there is no dispute that the appellant left the pistol pointing down range.
Second incident
CI Ralphs found that after Mr Marks entered Range B for the first time, the appellant waved the pistol around in an unsafe manner while showing it to him. It would seem that this finding is based on the Chief Inspector’s interpretation of events depicted on the DVD between 15:01:43 (when the appellant first showed the firearm to Mr Marks) and 15:01:45 (when Mr Marks took the pistol from the appellant and began firing it).
In my opinion, the characterisation of the appellant’s handling of the pistol as an unsafe waving of the pistol is patently wrong. The DVD shows that the appellant did not move the pistol loosely to and fro or up and down. He held the pistol in both hands at about waist height and showed it to Mr Marks. It is impossible to determine from the DVD the direction in which the pistol was pointing at the time. Significantly, however, Mr Marks did not allege in his statement that the appellant pointed the pistol in his direction or mishandled the firearm in any other way.
In short there is no evidence to support CI Ralphs’ findings in respect of this incident. The criticism of the appellant based on this incident must be rejected.
Third incident
CI Ralphs found that after Mr Marks left Range B the appellant abandoned his pistol by leaving it on the counter of firing bay 5 (pointing down range) when he went over to the rear table (15:03:55) and handled some object (probably ammunition) for about 10 seconds before returning to bay 5 where he remained until Mr Marks returned.
This assertion is quite extraordinary. Dr Craddock was never more than a few metres from the pistol. The pistol was effectively in his custody care and control. Furthermore, the only other person in Range B at the time was busy shooting in bay 1. There was no risk that a person might gain access to the firearm during the brief time that the appellant was at the rear table. It should also be noted that there were occasions when the person in bay 1 also left his firearm on the counter when accessing ammunition on the rear table. So also did Mr Marks when he test fired the appellant’s pistol on the second occasion he went into Range B. The criticism of the appellant in relation to the third incident must be rejected.
Fourth incident
CI Ralphs made two findings against the respondent in respect of this incident:
·First, that the appellant waved the pistol about in an unsafe manner when he picked it up and showed it to Mr Marks.
·Second, that the appellant subsequently placed the pistol inside the foam cut with the muzzle pointing up range.
Waving the pistol
As earlier explained, the DVD shows that at 15:10:53 (about 20 seconds after Mr Marks entered Range B for the third time) the appellant placed something on or in the open case. On the appeal Mr Golding argued that it can be seen that that the appellant was holding the pistol in his right hand and that it could be determined from his body position and arm movements that the pistol was being placed in the case facing up range. I do not believe that it can reasonably be determined from the DVD that the object the appellant initially placed on the case was the pistol. If it was the pistol, the direction in which it was pointing cannot be seen.
At about 15:10:55 the appellant picked up the pistol from the vicinity of the case and pointed it down range at an angle of about 45 degrees to the target with the barrel tilted slightly downwards (while showing or discussing it with Mr Marks). At all times Mr Marks was standing behind the appellant and to his left. The pistol was not carelessly waved about or pointed towards Mr Marks. The appellant then faced down range blocking the camera’s view of the pistol. At 15:11:06 the appellant turned to his left and placed the pistol on to the case. In the process of lowering the firearm the appellant had the muzzle pointed down towards the case. It was not pointed towards the appellant or any other person. It should be observed that Mr Marks made no allegations in his statement that the appellant failed to handle the pistol properly during the events described above.
In my view, the allegation of unsafe waving or handling of the pistol has not been established to a level of reasonable satisfaction.
The position of the pistol when handled by Mr Marks
The crucial issue relates to the position in which the appellant placed the pistol on the case at 15:11:06.
It is clear that CI Ralphs did not believe the appellant’s explanation that he placed the pistol on top of the foam insert pointing down range at an angle. He preferred Mr Marks’ statement that the pistol was placed in the foam cut out pointing down range. It is also apparent that he considered that Sgt Plummer’s report, and the contents of the DVD, supported Mr Marks’ account.
In relation to the significance of Sgt Plummer’s report, CI Ralphs said in his reasons for decision, dated 28 March 2012:
I do not accept that you placed the firearm as indicated in figure 2, page 9 of submissions dated 23 March 2012.[94] This is inconsistent with the ballistics report. I prefer the conclusions made by BS Plummer in this report and adopt his findings.
[94] The figure corresponds with the diagram in the appellant’s statement dated 18 November 2011 set out on p23 of this judgment.
This conclusion is a significant error in CI Ralphs’ analysis of the evidence. The report of Sgt Plummer did not contradict the appellant’s case at all. The report established that the muzzle of the pistol was in the foam cut out pointing up range (towards Mr Marks) when it discharged. Sgt Plummer considered that the slight downward trajectory of the bullet may have been due to the pistol not sitting correctly in the cut out with the rear part of the firearm resting on top of the foam. The report is not inconsistent with the appellant’s contention that after reaching into bay 5 Mr Marks rotated the pistol into the cut out either intentionally or unintentionally. CI Ralphs’ reliance on the report of Sgt Plummer as corroborative of Mr Marks’ account tainted his analysis of the evidence by unfairly diminishing the cogency of the appellant’s account on the one hand, and wrongly bolstering the credibility of Mr Marks’ account on the other.
Sgt Plummer’s report did not merely fail to corroborate Mr Marks’ statement but, in fact, served to contradict it in an important respect. Mr Marks said that he reached into bay 5 intending to “rotate the box [case]” so that the pistol would be pointing down range. He said that the “instant [he] made contact with the box” the firearm discharged. However, Sgt Plummer’s report discloses that the pistol would not have discharged unless some object had been inserted into the trigger guard and depressed the trigger.
As Mr Golding conceded on the appeal, the pistol must have discharged as a result of Mr Marks inserting a finger into the trigger guard and unintentionally pressing the trigger. This fact is entirely consistent with Mr Marks having taken hold of the firearm and rotating it in the manner contended for by the appellant. There is a further difficulty with Mr Marks’ claim that he intended to rotate the case. At the time he reached into bay 5 with his right hand, the entire length of the open lid of the case was resting vertically against the divider between bays 4 and 5. It would have been impossible for Mr Marks to have rotated the case in those circumstances. This impossibility, and the inconsistency between Sgt Plummer’s report and Mr Marks’ statement as to how the pistol was discharged, are matters which were not addressed by CI Ralphs in his reasons for decision.
It is necessary to refer to two aspects of CI Ralphs’ supplementary reasons for decision, delivered by letter dated 29 May 2012. First, he indicated that one of the reasons for him rejecting the appellant’s account was “that the scope [optical sight] and magazine were attached to the weapon and the consequent difficulty in rotating the pistol in the manner indicated by [the appellant]”. However, no explanation was given by CI Ralphs as to how he came to that conclusion.
Second, he suggested that the “two second time frame in which Mr Marks lent into the bay” was inconsistent with Mr Marks having rotated and discharged the pistol in the time available. Such a conclusion is speculative. As earlier pointed out, the FRC had recommended that a test be conducted to see if it was possible for Mr Marks to have rotated and discharged the pistol in two seconds. CI Ralphs chose not to act on that recommendation. He was not obliged to arrange for such a test to be conducted but in the absence of one it would be patently unsafe, in my view, to draw an inference adverse to the appellant.
I return to the DVD. The interior of the case and the final position of the pistol cannot be seen in the footage. In CI Ralphs’ reasons for decision dated 23 March 2012 he did not suggest that any assistance could be obtained from the DVD in relation to determining the position in which the appellant placed the pistol. However, in his supplementary reasons of 29 May 2012 he expressed the view that the appellant’s “position and stance prior to placing the weapon in the case shortly before the incident” indicated that the pistol was placed facing up range. This point was pressed by Mr Golding. He submitted that it could be inferred from the manner in which the appellant lowered the pistol with his right hand and his general movements that he must have put the pistol down facing up range. I cannot agree. In my view there is nothing in the DVD, which I have viewed several times, that is necessarily inconsistent with the appellant’s case.
By way of summary, it is apparent that CI Ralphs was confronted with conflicting statements from the appellant and Mr Marks in relation to the final position of the pistol. The DVD provided no meaningful assistance in relation to evaluating their competing claims. The ballistics report provided the only useful independent and objective evidence as to the position of the pistol at the time of discharge and as to the cause of the discharge. The report was entirely consistent with the appellant’s case but contradicted Mr Marks in important respects. The conflict between Mr Marks and the appellant heightened the importance of the appellant’s good character and integrity. The suggestion that he had unsafely handled and positioned the firearm also heightened the importance of his impeccable firearms record and extensive experience with firearms. With respect, CI Ralphs failed to take into account or attach sufficient weight to these factors. In my opinion, upon any objective assessment of the evidence the conclusion that the appellant left the firearm pointing down range could not be reached with reasonable satisfaction.
Fifth incident
I turn to the fifth incident which concerns the appellant’s handling of the pistol while Mr Callaway attended to Mr Marks following the shooting. As earlier observed, the appellant’s case that he picked up the pistol, removed the magazine and cleared the firing chamber (in other words unloaded the firearm and rendered it safe) is not contradicted by any evidence. The contentious issue is whether in the course of handling the firearm the appellant brandished it carelessly as the respondent contends.
The respondent specifically referred to Mr Callaway’s statement in relation to this incident. That statement, however, provides no support for the respondent’s case. Mr Callaway merely stated that the appellant “continued to pick up the pistol and disengage it” while he was attending to treat Mr Marks. The statement does not assert any unsafe handling on the part of the appellant. If the appellant had mishandled the pistol one might have expected Mr Callaway to have specifically mentioned that fact.
The DVD does not advance the respondent’s case either. The DVD shows that at 15:12:24 the appellant walked over to the counter and picked up the pistol. The direction in which the pistol was pointing at this time cannot be seen on the footage. The appellant then turned to his right so that he was facing directly down range. This is consistent with the appellant clearing the pistol while pointing the firearm down range. At 15:12:29 the appellant turned to his left and put the pistol back on the case. The optical sight on top of the pistol is partially visible but it is difficult to determine the direction in which the pistol was pointing. It must be remembered that even if the pistol was not pointing down range when placed back on the case the firearm had been cleared and the magazine removed.
The criticism of the appellant based on the fifth incident must be rejected.
Sixth incident
The sixth and final incident relates to the appellant picking up and handling the pistol whilst explaining the shooting to Constable Van Donderen. The allegations made against the appellant, in respect of this incident, are based on the following passage from Constable Van Donderen’s statement:
I immediately directed Craddock to put the pistol down and step away from the bay. …I saw the pistol on the bench that Craddock had placed down right next to the pistol case. The pistol was on the bench with the barrel facing left when looking down range. ….
The appellant had initially picked up the pistol because he had been asked by the police officer to explain what had happened. It is apparent from an earlier passage in Constable Van Donderen’s statement that he had not anticipated that the appellant would pick up the pistol for that purpose.[95] However, there is no suggestion that in the course of handling the firearm the appellant pointed it other than in a safe direction. The respondent’s criticisms of the appellant in respect of this incident are (i) that the appellant “abandoned” the pistol by putting it down and (ii) placed it in an unsafe position (pointing to the left rather than down range).
[95] See [64] of this judgment.
The suggestion that the appellant “abandoned” the pistol is unfair. The appellant put the pistol down at the police officer’s direction and it remained on the counter nearby while he was being questioned. In the circumstances there was no risk of an unauthorised person taking possession of the pistol. Indeed, the pistol by this time was the subject of a police investigation and was under their control.
The criticism of the appellant leaving the pistol on the counter pointing left is also harsh for the following reasons:
· The firearm was unloaded. The appellant had previously cleared the firearm and removed the magazine. Mr Callaway had also checked the firearm prior to the arrival of the police.
· There is no evidence that there were any persons in Range B at the time, other than the appellant and Constable Van Donderen.
· The pistol was not placed on the counter pointing towards Constable Van Donderen.
· There is no dispute that the appellant was greatly upset and distressed at the time.
No meaningful assistance can be gained from this incident in evaluating the fitness and proprietary of the appellant.
In my opinion, the errors that I have identified in CI Ralphs’ evaluation of the evidence relating to the six incidents collectively provide cogent reasons for departing from his decision.
Appellant’s attitude
In concluding my discussion of the evidence it is necessary to canvass the respondent’s argument that the appellant displayed an attitude at all times that his actions were beyond reproach. This contention is based on the appellant’s repeated denials of having mishandled the firearm. As touched upon earlier, any alleged lack of insight or contrition on the part of a person who has intentionally or unintentionally mishandled a firearm is a matter relevant to an assessment of that person’s fitness and proprietary. However, the short answer to the respondent’s argument in the present case is that the appellant’s denials may represent the truth. Certainly, in my view, there was insufficient evidence for CI Ralphs to have been reasonably satisfied of the material facts upon which he based his decision. On all of the evidence there was no sound basis for concluding the appellant was not a fit and proper person to hold a firearms licence.
Conclusion
The appeal must be allowed. There is no proper basis for remitting the matter to the respondent for further consideration.
I make the following orders:
1. Appeal allowed.
2. Decision cancelling appellant’s firearms licence (No 88046L) is rescinded.
3. Firearms licence to be reinstated forthwith.
4. I will hear the parties as to costs.
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