Davies v Registrar of Firearms - [2005] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
DAVIES v REGISTRAR OF FIREARMS
Judgment of The Honourable Justice Gray
21 April 2005
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeal against decision of magistrate affirming order of the Registrar of Firearms cancelling the appellant's firearms licence - Registrar found appellant not to be a fit and proper person to hold a firearms licence - consideration of legislative scheme of Firearms Act 1977 (SA) - consideration of appellant's antecedents - prior conviction for offence involving violence - failure to report the loss of two registered firearms - open for the magistrate to conclude appellant not fit and proper person to hold firearms licence - appeal dismissed.
Firearms Act 1977 (SA) s 5, s 12, s 15 and s 21D, referred to.
Johnson v Registrar of Firearms (2001) 79 SASR 353; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Offe v Police (2002) 84 SASR 1, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"fit and proper person"

DAVIES v REGISTRAR OF FIREARMS
[2005] SASC 149
Magistrates Appeal
GRAY J:

This is an appeal against the decision of a magistrate’s affirming an order of the Registrar of Firearms cancelling the appellant’s firearms licence.
On 19 April 2003 the appellant, Garry Davies, applied for a permit to acquire a firearm pursuant to section 15 of the Firearms Act 1977 (SA). He sought an A and B class licence and indicated that hunting and primary production were the purposes for the application.
During the process of considering the application the Registrar reviewed Mr Davies’ status as a fit and proper person to be licensed having regard to a 2002 criminal conviction for an offence involving personal violence. This led the Registrar to reject Mr Davies’ application and also to the cancellation of his existing firearms licence. A cancellation order was made on 20 October 2003.
The appellant sought to appeal the Registrar’s decision and filed a notice of appeal in the Magistrates Court pursuant to section 21D of the Firearms Act, which relevantly provides:
(1)     A person aggrieved by a decision of the Registrar—
(a)     to refuse an application for a licence, or renewal of a licence or an application for a permit authorising the acquisition of a firearm; or
…
(da)    to refuse an application for registration of a firearm; or
(db)    to cancel the registration of a firearm; or
…
may appeal against that decision to a Magistrate sitting in chambers.
...
(3)The Magistrate may, on the hearing of the appeal, exercise one or more of the following powers:
(a)     affirm or vary the decision appealed against, or substitute any decision that should have been made in the first instance;
(b)     remit the subject matter of the appeal to the Registrar for further consideration;
(c)     make any order for costs.
The process of appealing a decision of the Registrar of Firearms forms part of the legislative scheme of the Firearms Act. The nature of this legislative scheme was discussed in Johnson v Registrar of Firearms[1] where it was observed:[2]
The scheme of the Act involves the conferral of extensive administrative powers upon the Registrar. An analysis of the legislative provisions confirms that, on appeal, the magistrate is obliged to undertake the hearing de novo. No provision is made for a record to be kept of what occurs before the Registrar. The rules of evidence do not apply. There is no requirement for reasons to be provided. There is no suggestion that the magistrate is confined to the material before the Registrar. In these circumstances, the magistrate was correct in conducting a hearing de novo.
[1] (2001) 79 SASR 353; see also Registrar of Firearms v Gitsham (2002) 84 SASR 72 at [51]
[2] (2001) 79 SASR 353 at [23]
The magistrate was obliged to undertake the hearing of the appeal de novo. Mr Davies’ appeal was dismissed. The magistrate affirmed the cancellation of the appellant’s licence. The magistrate considered Mr Davies personal antecedents. However, he did not accept that Mr Davies had been at all times a “responsible firearms person”. Mr Davies’ criminal antecedents and his failure to report the loss of two firearms registered in his name were found to be material matters giving rise to the cancellation of the licence. The magistrate reasoned:
Although the conviction for this offending may be sufficient to find that the appellant is not a fit and proper person to have possession of a firearms licence, I think that in the circumstances standing alone I would not be prepared to make such a finding. However, in conjunction with my earlier comments about the two missing firearms, I am more than satisfied that the appellant is not a fit and proper person to have possession of a firearms licence.
…
Subsection (11) of section 5 of the Firearms Act 1977 describes certain criteria which may be taken into account in determining whether a person is not a fit and proper person to have possession of a firearms licence, for example, where a person:
(a) has not complied with the requirements of the Act in relation to the safe handling, carriage or use of firearms; or
...
(c) has been convicted 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…
Furthermore ‘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’.
Having regard to all matters I have mentioned above I am satisfied that the appellant is not a fit and proper person to have possession of a firearms licence under the Firearms Act 1977. Accordingly I affirm the decision appealed against by the appellant.
Personal circumstances of appellant
At the time of the proceedings before the magistrate, Mr Davies was 43 years old. He has four children and has been married for some 16 years. He is the proprietor of an earth-moving business at Millicent employing 16 staff. Testimonials presented to the magistrate attested to his good character.
At the time of the application for a permit to acquire a firearm, Mr Davies had six firearms registered under his name. However, only four were found on his property. A .22 calibre rifle and a .177 air rifle were missing. Mr Davies claimed that the .22 calibre rifle had been destroyed in a motor vehicle collision. Constable Dennis Blows, the policeman in attendance at the time, now has no recollection of the incident. Counsel for Mr Davies accepted that the Registrar had not been notified.
The .177 air rifle was said to have been lent to Mr Davies’ brother-in-law about eight years ago. He then lost all contact with his brother-in-law. When initially questioned about the .177 air rifle Mr Davies could not remember who had borrowed the rifle. It was only after further enquiries that he was able to identify the borrower as his brother-in-law. Again no report was made to the Registrar.
The magistrate found that neither the loss nor the destruction of the firearms was reported to the Registrar.
Mr Davies claimed that the reason for his application for an additional firearms licence was his need to eradicate pests from his property. He said that he had developed a wetland and wished to protect the area’s native fauna from feral species.
Between 1977 and 1985 Mr Davies had been before the court for drug and alcohol related offences in addition to other offences. In 2002 he was found guilty of recklessly causing injury, an offence involving personal violence. Counsel for Mr Davies submitted that the 2002 offending arose out of frustrations caused over the supply of earthmoving equipment. It involved a heated argument culminating in physical violence between the victim and Mr Davies. Counsel described the victim as the aggressor in this incident. This was noted by the magistrate during his reasons.
Legislative scheme
The primary aim of the Firearms Act 1977 is to ensure public safety.[3] In 1996 the legislation was amended to enact stricter uniform gun laws throughout Australia. These amendments introduced a “comprehensive scheme dealing with gun control, gun ownership, collection and dealing”.[4]
[3] Johnson v Registrar of Firearms (2001) 79 SASR 353.
[4] Offe v Police (2002) 84 SASR 1 at 9.
The scheme empowers the Registrar to attach a number of conditions to a firearms licence. One condition is the requirement for the holder of a firearms licence to report within 14 days to a member of the police force any loss, theft or destruction of any firearm to which their licence relates.[5] Mr Davies’ conduct clearly contravened this condition due to the unreported disappearance of two firearms registered under his name.
[5] Regulation 19(1)(e) of the Firearms Regulations1993 (SA).
The .22 rifle was claimed to have been damaged in a motor vehicle accident. The loss was said to have been reported to a police officer at the time of the accident. However, no further steps were taken to notify the Registrar of the loss.
The loss of the .177 rifle was initially unexplained as Mr Davies could not recall to whom he had given the rifle or its location. This conduct evidences Mr Davies’ casual approach to his statutory obligations. He later recalled that he had lent the rifle to his brother-in-law. Whilst the rifle was not lost, stolen or destroyed the appellant’s attitude to its ownership and control is not acceptable, given the level of awareness and control required by the Firearms Act 1977.
The scheme also requires the Registrar to deem an applicant as a “fit and proper person” to possess a firearms licence before one can be granted.[6] Section 5(11)(c) of the Firearms Act 1977 provides:
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—
...
has been convicted 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; ...
Mr Davies’ recent conviction for a criminal offence involving violence constitutes a ground for finding that a person is not “fit and proper”.
[6] Firearms Act 1977 (SA) section 12(7)(a).
The magistrate noted that Mr Davies had used firearms on rural properties since he was 18 years of age. However, the magistrate was not prepared to accept that the appellant had been a “responsible firearms person”. It was said that the incident of the missing firearms demonstrated Mr Davies’ lack of concern of the responsibilities entailed in possessing a firearm’s licence. Having considered all relevant matters and the scheme of the Firearms Act 1977, the magistrate was of the view that the Registrar’s decision to cancel the appellant’s licence was appropriate in the circumstances.
The Appeal
Counsel for Mr Davies submitted that the magistrate had erred in his discretionary consideration. In particular it was said that an explanation had been offered for Mr Davies’ failure to report the loss of the two rifles. It was contended that the appellant had “learnt his lesson” and that the court could be confident that he would comply with the legislative requirements and the obligations of a firearms licence in the future.
Counsel acknowledged that the appellant’s criminal antecedents required careful consideration. However, it was said that the drug-related offences had occurred when he was a young man, some 20 years ago, and the more recent offence of personal violence arose in circumstances where Mr Davies was not initially the aggressor. Finally it was contended that Mr Davies had a legitimate use for firearms - controlling vermin that were affecting the development of wetlands on his property. It was said that in the circumstances the magistrate had given undue weight to Mr Davies’ failure to report the destruction and loss of the firearms and to his criminal antecedents and that in the circumstances, the appeal should be allowed.
Counsel for the Crown drew attention to the policy considerations underlying the strict legislative regime relating to gun control. In particular, emphasis was placed on the objects of the legislative scheme, to enact strict, uniform laws on gun control, and the matters referred to earlier in these reasons. It was said that the magistrate’s findings:
-    were open to him as a matter of discretion;
-    did not constitute error;
-    were supported by the material facts;
In these circumstances it was said that no error or principle had been established and that there were no grounds to interfere with the exercise of the magistrate’s discretion and the orders subsequently made.
Conclusion
There is a clear need for the provisions of the Firearms Act 1977and Regulations to be complied with. It is important that the community generally is aware of the need for careful and strict compliance. The legislative scheme for gun control requires compliance for its efficacy. Compliance with the Act and Regulations may cause a degree of inconvenience but the dangers of poor gun control are too evident in our society for matters of non-compliance to be disregarded or overlooked.
In the present case Mr Davies had displayed a casualness of attitude towards the Act and Regulations. Two weapons that are registered in his name have been lost: one in circumstances of damage and the other through a loan to a person, now missing. It is important that lost weapons be reported so that records that are kept are both accurate and reliable. The rifle that was lent to Mr Davies’ brother-in-law is now missing and presumably can only be traced with great difficulty. This is a significant and material breach of the Act and Regulations that leaves a person identified only as Mr Davies’ brother-in-law of an unknown address in possession of a firearm without that firearm being registered to that person. It is unknown whether Mr Davies’ brother-in-law is licensed or entitled to be licensed.
Mr Davies is a mature adult who recently engaged in personal violence leading to a criminal conviction. It is said that he was not the aggressor. Those convicted of crimes of personal violence in the ordinary course may expect to have considerable difficulty in obtaining a firearms licence. The view could be taken that it is of little consequence that Mr Davies was not the aggressor in this incident. It demonstrates that as a mature adult he was unable to control his temper. This is the type of personality that may suggest that a person should not be licensed. A person who cannot control anger may well not be a “fit and proper person” to be the holder of a licence.
The order of the magistrate was well within his discretion. No error of principle has been identified in his approach or his consideration of the issues. He had regard to the relevant material and did not take irrelevant considerations into account. In these circumstances it is not open to this court to interfere with his discretion. In any event this was a clear case where it was appropriate for the magistrate to affirm the Registrar’s decision.
At some time in the future, if Mr Davies is able to demonstrate that he is a “fit and proper person” to hold a licence then any further application that he may make can be considered in the light of those circumstances and on its merits.
This appeal is dismissed.