HEUGH and COMMISSIONER OF POLICE
[2019] WASAT 135
•21 NOVEMBER 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: FIREARMS ACT 1973 (WA)
CITATION: HEUGH and COMMISSIONER OF POLICE [2019] WASAT 135
MEMBER: DR B DE VILLIERS, MEMBER
HEARD: 21 NOVEMBER 2019
DELIVERED : 21 NOVEMBER 2019
PUBLISHED : 16 DECEMBER 2019
FILE NO/S: CC 2544 of 2018
BETWEEN: JOHN PHILLIP HEUGH
Applicant
AND
COMMISSIONER OF POLICE
Respondent
Catchwords:
Firearm - Reasonable justification - Suitable calibre to hunt at long-range - Use of knowledge of Tribunal member
Legislation:
Firearms Act 1973 (WA), s 11A(2), s 11A(2)(c), s 11A(3), s 22(2)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(3), s 29(1), s 29(3), s 29(5)
Result:
Review successful and licence issued
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Ryan |
| Respondent | : | Mr J Lloyd |
Solicitors:
| Applicant | : | Mortlock Ryan & Co |
| Respondent | : | In Person |
Case(s) referred to in decision(s):
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct grammatical errors and infelicities in expression.
Background
The applicant seeks to have a .358 Norma Calibre Zuftara Arms rifle (.358) serial number 401839, added to his firearms licence for the purpose of long‑distance shooting of medium and large‑bodied animals, such as camels, boars and horses. The respondent says that the existing firearms for which the applicant is licensed are adequate for the stated purpose, whereas the applicant says the firearm sought fills a specific void in his collection of firearms and that the licensing thereof is reasonably justified. The parties agreed that the applicant meets the requirements for a genuine reason under s 11A(2) of the Firearms Act 1973 (WA) (Firearms Act), but they disagreed whether he meets the requirements for a firearm to be reasonably justified, pursuant to s 11A(3) of the Firearms Act.
The Tribunal's review jurisdiction
The applicant brought the application under s 22(2) of the Firearms Act. The Tribunal has, in accordance with s 29(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), the same jurisdiction, functions and discretions as those of the licensing officer. The Tribunal is not limited to the statement of reasons given by the licensing officer; s 27(3) of the SAT Act. The Tribunal may also take into account any additional or new information that was not at the disposal of the licensing officer at the time when the decision was made; s 27(1) of the SAT Act. The review hearing is de novo; s 27(1) of the SAT Act. The decision of the Tribunal is regarded as a decision of the licensing officer; s 29(5) of the SAT Act. The powers of the Tribunal, according to s 29(3) of the SAT Act are to:
a)affirm the decision;
b)vary the decision; or
c)set aside the decision and to make appropriate orders.
The respondent acknowledged that since it had considered the application, additional information has become available, most relevantly pertaining to the use to which the applicant intends to put the rifle, namely, for long‑distance shooting.
Expert witnesses
The Tribunal had the benefit of two specialist shooters giving concurrent evidence, Sergeant David Tilt and Mr Bevan Steele. The Tribunal found their evidence and expert opinion to be very informative. Both witnesses attempted to assist the Tribunal. The answers they gave were informed by their personal experiences, and they directly answered the questions in regard to the relevancy thereof. Whenever they disagreed, they clearly explained the reasons for their disagreement.
Neither of the experts was defensive of a specific position, and both interacted with the Tribunal in a professional manner. The Tribunal does not accept the applicant's criticism of the expertise of Sergeant Tilt in giving a personal opinion. Of course an expert gives a personal opinion. That is often why they are called as experts. However, such an opinion is only one of the factors considered by the Tribunal. The Tribunal did not find the opinion expressed by Sergeant Tilt to be overly biased, defensive, or that his mind was closed to comments made by Mr Steele.
Evidence of the applicant
The applicant filed a written statement and gave oral evidence. The Tribunal was impressed with the level of knowledge displayed by the applicant; the research he had undertaken into appropriate calibres for his use; and his ability to answer questions about the technical specifications of the firearm for which he wishes to be licensed, and how the firearm compares to his existing firearms. The applicant seemed to be an avid shooter, with a comprehensive understanding of the capabilities of the respective firearms. He is also held in high regard by organised shooters, as is reflected in the letters from Hot Shots Shooting and from Conservation Australia.
Contentions
The respondent says that the applicant is already licensed for two firearms that are suitable for the type of hunting he now wishes to undertake. Both the .300 Winchester Magnum (Win Mag) and the .375 Ruger are capable of shooting medium and large‑bodied animals over distances that exceed 300 metres. The applicant accepted that those firearms can kill animals at distances that exceed 300 metres, but he said that the .358 is more suitable due to its ballistic capability and hydrostatic shock effect it offers, and therefore it offers greater certainty to humanely kill an animal at such long‑range, particularly ranges in excess of 400 metres which is the intention of the applicant.
Consideration
In considering the application, the Tribunal has taken into account the written and oral evidence; the exchange of correspondence; the letters submitted by Hot Shots Shooting and Conservation Australia; the property letter and evidence of Mr Elmore, the owner of Ella Valla Pastoral Station (Ella Valla); the background material filed by the parties; and the submissions made by the parties. The Firearms Act and the SAT Act empower the Tribunal with a discretion to take into account information that is relevant and applicable to the specific application under consideration and to determine if the firearm should be included on the licence of the applicant.
The discretion of the Tribunal is by its nature subjective, but it must be guided by all relevant information at the disposal of the Tribunal. Wherein the Tribunal has a discretion, such a discretion is not to be exercised arbitrarily, but on the basis of the materials before the Tribunal. The Tribunal notes that in light of my own experience as a hunter, I relied on personal knowledge to put forward propositions based on my experience to the witnesses to respond thereto. This is consistent with the statutory power of the Tribunal to utilise its knowledge in order to provide the correct and preferable decision, provided, of course, that the knowledge of the Tribunal is put to parties and to the expert witnesses to address.
Several issues arose, and I will deal with these separately:
1)Are there camels at Ella Valla? There is no need for the Tribunal to make a finding whether there are indeed camels at Ella Valla. It is noted that Mr Elmore accepted that Ella Valla falls outside the range of feral camels, as provided by the conservation authorities. But he said that some domesticated camels had been released by a neighbour many years ago. He also said that he had seen a camel about seven years ago.
The sighting of a camel is at best historic and not supported by other contemporary evidence of the presence of camels at Ella Valla. The answer to the question is, however, not determinative of this matter. The Tribunal accepts that there are other medium and large‑bodied animals at Ella Valla, such as cattle and horses, that may require to be hunted over long distances that exceed 300 to 400 metres, due to their feral nature.
2)Is the property letter from Ella Valla adequate? The property letter from Ella Valla complies with the requirements of s 11A(2)(c) of the Firearms Act. Mr Elmore gave evidence about the size of Ella Valla; the nature of feral animals; the reason why feral animals are hunted at large distances; the topographical features of the land; the opportunity to shoot at distances that exceed 400 metres; the shooting of scrub bulls along clearance lines; and the importance of using a calibre rifle that improves the likelihood of a humane killing of animals.
The evidence of Mr Elmore in terms of the required calibre of rifle for hunting of large and medium-bodied animals over long distances is consistent with the evidence of Sergeant Tilt and Mr Steele.
The contention of the applicant that there is no requirement for the applicant to provide a property letter is rejected. The contention is, in any event, moot since the property letter was provided.
There is no need for the Tribunal to consider, whether the letters from Hot Shots Shooting and Conservation Australia would, in the absence of a property letter, be adequate to meet the requirements of the Firearms Act. But it is noted that those organisations speak highly of the applicant, and they attest that he is a regular participant in their shooting excursions.
3)Are the letters from Hot Shots Shooting and from Conservation Australia relevant? The Tribunal agrees with the applicant that those letters are relevant and ought to be considered as part of all the material before the Tribunal. The letters may not, in the strict sense of the word, be property letters as required by the Firearms Act, but these are reputable organisations which render a service to landowners for purposes of eradicating feral animals.
Both letters confirm that the applicant is known to the relevant author; that he has for some time been shooting with them in an organised capacity; and that his service is of use for the eradication of feral animals. These letters were not mass-produced, or merely copies of a generic letter. They were specific, personal and confirmed the status and expertise of the applicant. The Tribunal is satisfied that the letters show that the applicant may also be able to use his firearms in other areas than Ella Valla for purposes of eradicating feral animal species.
4)What is the relevance of Department of Environment and Energy Guidelines (Guidelines) and the Code of Practice for the Capture and Marketing of Feral Animals in Western Australia (Code of Practice). The Tribunal accepts that the Guidelines and the Code of Practice as policy guidelines are, generally speaking, relevant to inform the decision‑maker. The Guidelines are however, not rigid and ought not to be elevated to a standard where a Guideline or a Code of Practice is used to substitute discretion.
The Guidelines are intended to assist, not to enforce or audit. This is illustrated by the fact that whereas the Code of Practice speaks of a .308 calibre rifle being adequate for purposes of hunting of large and mediumsized animals over long distances, both experts agree that a .308 calibre rifle is not ideal for such long distance shooting, exceeding 300 metres by recreational shooters. The respondent quoted several parts of the Code of Practice to highlight the importance of the Code of Practice to a responsible hunter.
The respondent did not, however, take issue with the capability of the applicant to shoot accurately at long distances. The references to the Code of Practice were therefore more for purposes of providing information rather than the Code of Practice being a factor that justifies a refusal of the application. The Tribunal therefore notes the Guidelines, and I am informed by those Guidelines, but ultimately the discretion is exercised after all relevant information has been considered.
5)Is it reasonable to hunt at distances in excess of 300 metres? Extensive exchange of opinion arose in response to the question whether it is reasonable to hunt at distances in excess of 300 metres. Mr Elmore explained that if he hunts for his domestic use, he prefers to hunt at shorter distances, possibly not exceeding 200 metres. But when feral animals are hunted, larger distances come into play for reason of the wild nature of these animals. The applicant also said that the distances at which he wants to hunt exceed 300 metres, and it is important that he has sufficient firepower to kill and not wound an animal at 400 to 500 metres.
Mr Steele held a similar opinion. Mr Steele said that nowadays, with modern technology of laser sighting, long‑distance shooting is becoming within the means and ability of recreational shooters, whereas previously it was only expert marksmen who could shoot at such distances. Sergeant Tilt agreed that there is no definitive distances at which shooting should not occur, albeit that he is of the view that shorter distances are to be preferred to longer distances for the purposes of accuracy, finding a wounded animal and shot placement.
Sergeant Tilt agreed, however, with the observation of the Tribunal that it is not just distance that is primarily relevant, but also the capacity of the shooter.
The Tribunal is satisfied that there is no artificial cap that can be placed on an ideal distance for hunting of feral animals. An untrained hunter may cause more damage at a short distance than an adequately trained hunter at a long distance. It depends on capability, equipment, the range and conditions.
There is nothing inherently risky, improper or unsuitable in the proposal of the applicant to hunt at distances exceeding 300 metres. The legislation does not require a capacity or capability test of the applicant to demonstrate ability to shoot at long distances. And to the extent that capability is relevant, the Tribunal notes that the applicant is an experienced hunter and shooter and has, according to Conservation Australia, undergone long‑distance shooting training at distances in excess of 600 metres.
6)Is there an ideal calibre rifle for particular shooting? The two experts agree that there is no ideal calibre rifle for a particular distance or animal. The ultimate choice of a firearm is influenced by a wide range of considerations. The Guidelines referred to are therefore not intended to be prescriptive, but rather to establish a minimum base, but with sufficient room to use a larger calibre rifle if so justified. The experts agreed that it is reasonable for a hunter to seek a different calibre rifle in order to ensure the humane killing of an animal at long distances.
7)Is it practical to change the equipment or accessories of a firearm while hunting? The respondent said that the telescope on the .375 Ruger can be substituted with a variable scope, or a different telescope, whenever required for long distances. The applicant says that the existing X2 by X7 and 38 millimetre scope is primarily for relatively short distances around 150 metres, and that it is impractical to change the scope whenever shooting at a long distance is required. The Tribunal accepts the proposition of the applicant. It is relevant, albeit not determinative, to consider the equipment associated with a firearm.
In an ideal situation on a range, a shooter may be able to change a telescope, sight it in again and then shoot. This is not practical in circumstances of hunting. Changing a telescope is not merely replacing one telescope with another. It takes time and shooting in before it can be used. The approach proposed by the respondent may lead to inaccurate shooting when telescopes are changed in the bush, and this is to be discouraged. The Tribunal is satisfied that the .375 Ruger even with a variable scope, is not suitable, or at least as suitable, as the .358 for shooting in excess of distances of 400 metres.
8)Is the .375 Ruger otherwise reasonably justified for the intended use? The experts agree that the .375 Ruger is a heavy calibre rifle that, in general, is more suitable for shorter distances than for longer distances. They also agree that the .375 Ruger can kill medium and large-bodied animals at distances of 300 metres and more, but they agreed that the ballistics and the hydrostatic shock of the .375 Ruger at long distances in excess of 300 metres, and particularly at 400 metres and more, are not comparable to those of the .358. The applicant has, in the opinion of the Tribunal, explained adequately why the .375 Ruger is not reasonably justified, compared to the .358, for hunting medium and large-bodied animals in excess of 300 to 500 metres.
9)Is the 300 Win Mag reasonably justified for the intended use? The experts agree that the .300 Win Mag is lighter, which makes it suitable to carry for the purpose of hunting on foot. They also agree that the .300 Win Mag is capable of shooting and killing medium and large-bodied animals in excess of 300 metres. The experts agree with the applicant that the .358 has a higher killing power at distances of 400 metres and more.
Sergeant Tilt said, for example, that if the applicant were to start afresh with the acquisition of firearms, the .358 would most certainly be the most appropriate for the use that the applicant proposes. The Tribunal accepts, as a general indicator, the technical specifications quoted by the applicant, albeit that those may not be entirely without contest. As a general indicator, however, those specifications were not disputed by the experts.
The Tribunal also accepts that at distances of 400 metres plus, killing power is essential since a wounded animal would be hard to track down, especially so when shooting at around 400 to 500 metres and beyond. It is therefore important that a shot that may not hit the vital organs may still be quite capable of bringing down the animal due to the hydrostatic shock of the projectile. The heavier barrel adds to stability, particularly from a stationary position which is preferred when shooting at such long distances.
10)Has the applicant demonstrated that the .358 is reasonably justified? The Tribunal is satisfied that the applicant has demonstrated that within the spectrum of firearms at his disposal on his firearms licence, there is a niche that can be filled by the .358 for purposes of hunting medium and large‑bodied animals at a range of 400 metres and more. Whereas the .300 Win Mag and the .375 Ruger may perform adequately at ranges of up to 300 metres, I am satisfied that the applicant has shown that due to the projection of the projectile, the firepower, the killing power of the .358 and the ability of the projectile to retain hydrostatic shock, that it is superior for the intended purpose than the other firearms, and therefore its use is reasonably justified.
The rationale of the applicant as set out in his letter to the respondent, dated 8 October 2018, for the acquisition of the .358 is accepted and is credible. It is well-researched and generally consistent with the material before the Tribunal, and therefore convincing and I accept the rationale. An order should therefore be made that the .358 be included onto the firearms licence of the applicant. And those are the orders that I make. The first order is:
1.The application for a review of the decision, dated 26 October 2018, in which the respondent refused to add to the firearms licence of the applicant a .358 Norma Calibre Zuftara Arms rifle, serial number 401839, is successful.
2.The decision of the respondent is revoked and substituted with a decision for the respondent to add to the firearms licence of the applicant a .358 Norma Calibre Zuftara Arms rifle, serial number 401839.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR B DEVILLIERS, MEMBER
16 DECEMBER 2019
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