Johnson v Registrar of Firearms

[2001] SASC 51

JOHNSON v REGISTRAR OF FIREARMS
[2001] SASC 51

Magistrates Appeal
(Civil)

1................ Gray J A decision was made by the Deputy Registrar of Firearms (“the Registrar”) to refuse to renew a firearms licence.  The Registrar's decision was reaffirmed on appeal by Mr Rogers SM (“the Magistrate”).  The Magistrate endorsed the decision of the registrar and adopted his reasons.   This is an appeal against the Magistrate’s decision.

Background

2      The appellant, Trevor Eric Johnson, was granted a firearms licence on 31 December 1988.

3      On 1 February 1999 Mr Johnson was charged with attempted murder after shooting a home invader.  His licence was suspended in March 1999 as a result of that charge.  The suspension was extended pending an inquiry into the circumstances of the offence.  Mr Johnson was subsequently acquitted.

4      Mr Johnson applied to the Registrar for a renewal of his class A licence.[1]  The application was referred to the Firearms Consultative Committee ("the Committee").  It was accompanied by a recommendation from the Registrar that the application be refused.  Mr Johnson was invited to make written or oral submissions to the Committee.  He did both.  The Committee agreed with the Registrar's recommendation.  The application for renewal was refused.

[1] The application was for the renewal of a licence to possess an air rifle and a .22 bolt action repeater rifle.

5      The Registrar gave reasons for his recommendation.  I consider the full text to be important as the Magistrate simply endorsed the reasons of the Registrar.  The Registrar said:-

"Criteria for Refusal

I am satisfied that the applicant is not a fit and proper person to hold a firearms licence. I am satisfied that the applicant has contravened a provision of the Firearms Act in that he has used a firearm for a purpose that is not authorised by his firearms licence.

Particulars

Mr Johnson was granted a firearms licence for longarms in December 1988 after consideration of the following convictions:

30/01/73   Port Lincoln      Drive with excess Blood Alcohol      Fine $40
  Lic dis                   14 days
21/03/73   Whyalla             Drive in a reckless      Fine $150
  or dangerous manner  Lic Disq
  18 mths
14/11/84   Murray Bridge   Destroy or Damage Property               CWOP[2]

[2] I take CWOP to indicate conviction without penalty

12/07/85     Murray Bridge        Due Care  Fine $80
  Destroy or Damage property              Fine $30   
23/03/87   Kadina              Larceny  Fine $180
  Possessing (controlled substance)     Fine $50

Since the issue of the licence Mr Johnson has had the following convictions:

18/12/89   Kadina               Breach Restraint Order  WOC[3]

[3] I take WOC to indicate without conviction

08/03/93     Clare  Discharge Firearm to cause injury or       
  Damage to property  WOC
02/06/93   Tanunda            Produce a controlled substance          Fine $180
  Possess a controlled substance           Fine $65
  Possess Equipment  Fine $25
01/07/94   Tanunda            Resist Arrest  Imp 6 wks
  susp 1 yr
24/08/94   Tanunda            Application for firearms forfeiture     forfeiture
  ordered
14/06/95   Tanunda            Appeal re forfeiture of firearms         forfeiture
  ordered

On the 24 August 1994 in the Tanunda Magistrates Court forfeiture of Mr Johnson's firearms was ordered. The order was appealed against and on the 14 June 1995 was again confirmed in the Tanunda Magistrates Court, under Sec 34 (2) (B) of the Firearms Act (at the time), 'that the return of the firearm to its owner would likely result in undue danger to life or property'.

A submission was prepared to the Firearms Consultative Committee recommending the refusal of Mr Johnson's licence renewal and forwarded to the committee.  The matter was adjourned by the committee as Mr Johnson's licence expired.

Mr Johnson reapplied for a class A licence on 10 March 1997 and after completing training was granted a licence in November 1997.  Since Mr Johnson received his licence he has had the following convictions:

20/08/98   Kadina     Possess a Firearm without a licence            (Fine $100)
  Possess Unregistered Firearm  

On the 12 September 1997 Police attended at Mr Johnson's premises with drug warrants and general search warrants and searched a van parked in the driveway and located an unregistered firearm.

Other Information

On the 25 March 1999 Mr Johnson's licence was suspended by the Deputy Registrar to allow a report to be prepared following his arrest on 1 February 1999 which allegedly involved the use of a firearm by Mr Johnson to shoot another person.

At about 2.00 am two males attended at Mr Johnson's home. While at the side door of the house Mr Johnson fired one shot from a .22 rifle with 'ratshot' from a distance of about 5 feet. The victim received a gun shot to the right side of the chest, which penetrated his chest cavity and lung. The victim was eventually airlifted to the Royal Adelaide Hospital for medical treatment after initial treatment at the Snowtown Hospital. Mr Johnson was subsequently charged with attempted murder and wounding with intent to do grievous bodily harm. On the 9 November 1999 Mr Johnson was acquitted of the charges in the Supreme Court. Although he was acquitted of the charges there was no dispute in relation to the discharge of a firearm by Mr Johnson, which contravenes a provision of the Firearms Act in that he used a firearm for a purpose that is not authorised by his firearms licence.

Since the issue of the Suspension Notice further investigations have revealed that Mr Johnson has an alias of Trevor Charles Cockburn and Trevor Eric Cockburn.  Checks show the following convictions in NSW under the name of Cockburn:

12/06/75   Parramatta D.C.         Carnal Knowledge (2 counts)     3 yr susp
  sent
16/06/76   Hyong  Smoke Indian Hemp  Fine $50
12/10/76   Fairfield  Goods in Custody  Fine $100
  Smoke Indian Hemp  Fine $150
  (breach of recog submitted)       

15/12/76   Sydney  Breach of Recogs  12 mths
  Imp

On the 22 November 1999 the acting Deputy Registrar wrote to Mr Johnson offering the following options:

1...... You may make an application for a firearms licence through your local Police Station.   This application incurs no expense to you until the matter is finalised.

2...... You may pay the attached renewal in the normal manner.  This procedure incurs administration costs which will mean a partial refund of the fee paid should the application be refused.  Additionally the temporary permit will not be issued.

Mr Johnson chose to renew his licence.

In view of the above information and nexus between possession, use, cultivation of prohibited substances and use of firearms, his convictions and a recent misuse of a firearm, I am satisfied that Mr Johnson is not a fit and proper person to possess firearms of any classification and that he has used a firearm for a purpose that is not authorised by his firearms licence, that his firearms licence should be cancelled."

The Committee concurred.  Minutes record the following:

"The Committee heard the referral from the Deputy Registrar and personal presentation from Mr Johnson who made a number of points some of which included:

......... He claims that all his convictions are incorrect and he indicated that he has no trust and faith in the law and legal system.  He was charged with discharging a tennis ball launcher in his back yard.  This item was considered a toy.  Later he was convicted for possession of a prohibited weapon.

.In relation to the attempted murder charge he states that he was living by himself in an isolated farm house.  On the night two people came to his house to speak to him and attempted to force their way into his house.  In self defence he shot one of these people.  He was subsequently acquitted for this offence.

......... Mr Johnson believes the drug offences are only minor.

.He stated that he is the foundation member of Snowtown and District Pistol and Shooting Club.

After due care and consideration of the points raised by Mr Johnson the Committee agreed with the Deputy Registrar's opinion that Mr Johnson's application for renewal of his firearms licence should be refused as they were not satisfied that he is a fit and proper person to hold a licence due to his previous convictions."

6      The Registrar wrote to Mr Johnson on 26 April 2000 and advised:

"Please note that your application to renew your firearms licence number 126400N of class A has been refused by me with the concurrence of the Firearms Consultative Committee due to your previous convictions."

The Scheme of the Firearms Act

7      The Firearms Act 1977 (SA) (“the Act”) provides a comprehensive scheme which deals with gun control. It addresses the personal and professional use of guns. It covers such areas as ownership, collection and dealing in guns.

8      The Act sets out the criterions for determining a grant of licence.  The same criterions governed Mr Johnson's application to renew his licence.

9 Parliamentary debates indicate that the Act was:

"designed to introduce stricter controls upon the possession and use of firearms.  The rapid increase in the number of serious offences involving the use of firearms, and the proliferation of extremely dangerous weapons, make stricter control necessary to safeguard the community."[4]

[4] Hansard   14 April, 1977 at 3448

10 In 1996 amendments were made to the Act, introducing stricter gun laws throughout Australia.

"In an historic move on 10 May 1996 the Australasian Police Ministers' Council agreed to a series of resolutions to introduce national uniform gun laws.  The underlying thrust of those resolutions is that gun ownership is not a right, it is a conditional privilege."[5]

[5] Hansard 10 July 1996 at 1919

11 The Act defines the Registrar of Firearms and the Firearms Consultative Committee. The Registrar is the Commissioner of Police. The Registrar may delegate powers and functions under the Act. The Committee is composed of six members from a variety of backgrounds. Members are appointed by the Governor. Before making a decision on any matter, the Committee must allow the Registrar and any other person with a direct interest in the decision, to make oral or written representations. Proceedings before the Committee are not governed by the rules of evidence.

12 Different classes of firearms are defined by the Act. The classification is dependant on factors such as the loading mechanism, size and magazine capacity of the firearm.

13     The Act provides for a variety of difference licences.  A licence must specify the firearms which may be used and the purposes for which they may be used.  The licence must be so endorsed by the Registrar.  Permitted purposes are set out in regulation 12 and are displayed in numerical form on the licence.

14 If the licence relates to prescribed firearms, then it must be specially endorsed by the Registrar. A prescribed firearm is defined in regulation 8. Other provisions of the Act specifically relate to prescribed firearms.

15 An application for a firearms licence of any kind must be made to the Registrar. When granting or refusing licences, the Registrar has a variety of duties and powers. The Registrar may request the production of information from the applicant. The Registrar is under an obligation to consider various factors before granting a licence, depending on the type of licence sought. For a ‘normal’ gun licence, the Registrar may only refuse an application if one of a number of specific matters is established and the Committee agrees that the application should be refused. However, in relation to prescribed firearms, the Registrar has a greater discretion and may only grant such a licence if satisfied of specific matters. There are many conditions imposed automatically on licences under the Act and Regulations.

16 An aim of the Act is to ensure public safety. In keeping with this aim, the Registrar has the power to impose specific obligations as a pre-condition to the grant of a licence, or as a continuing restriction on the licence. The Registrar may require a person to undergo training or an examination prior to granting a licence. This power is qualified by the need for the agreement of either the Committee or the licence holder to the imposition of conditions. The power can be exercised on the grant or renewal of a licence or during the term of the licence. The Registrar may also cancel, vary or suspend a licence at any time. The agreement of the Committee is required.

17 The Registrar must keep an up-to-date register of licences issued, and firearms registered under the Act. Licence holders are under a duty to carry their licences at all times.

18 The Act contains provisions creating offences. The Act makes it obligatory for a licence holder to notify the Registrar of changes in address and the location of where firearms are stored. Other provisions involve the registration of firearms, the regulation of ammunition and various precautions against the unlawful use of firearms.

19     An application for renewal of a licence is to be determined in the same manner as a new application.

20 A person aggrieved by a decision of the Registrar has a right of appeal to a magistrate. The appeal must be made within one month from the date of the Registrar’s decision. The Act sets out the magistrate's powers.

Nature of the Appeal to the Magistrate

21 Mr Johnson appealed, in accordance with s 21D of the Act. The Magistrate expressed his concurrence with the Registrar's reasons and affirmed the decision of the Registrar. Mr Johnson was unrepresented before the Committee, the Magistrate and on appeal.

22 Section 21D is in the following terms:

"(1) A person aggrieved by a decision of the registrar -

(a)    to refuse an application for a ... renewal of a licence ...

may appeal against that decision to a magistrate sitting in chambers.

(2)    The appeal must be instituted within one month after the appellant

receives notice of the decision, but the magistrate may, if satisfied that it is just and reasonable in the circumstances to do so, dispense with the requirement that the appeal should be instituted within that time.

......... (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."

23     The High Court in the Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd[6] articulated guidelines for determining the nature of an appeal from an administrative decision:

"Where a right of appeal is given to a court from a decision of an administrative authority, a provision that the appeal is to be by way of rehearing generally means that the court will undertake a hearing de novo, although there is no absolute rule to this effect. ... The nature of the proceeding before the administrative authority may be of such a character as to lead to the conclusion that it was not intended that the court was to be confined to the materials before the authority.  There may be no provision for a hearing at first instance or for a record to be made of what takes place there.  The authority may not be bound to apply the rules of evidence or the issues which arise may be non-justiciable.  Again, the authority may not be required to furnish reasons for its decision.  In all these cases there may be ground for saying that an appeal calls for an exercise of original jurisdiction or for a hearing de novo.

On the other hand the character of the function undertaken by the administrative authority in arriving at its decision may differ markedly from the instances already supposed.  The authority may be required to determine justiciable issues formulated in advance; to conduct a hearing, at which the parties may be represented by barristers and solicitors, involving the giving of oral evidence on oath which is subject to cross-examination; to keep a transcript record; to apply the rules of evidence; and to give reasons for its determination.  In such a case a direction that the appeal is to be by way of rehearing may well assume a different significance.

But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi-judicial function, classifications which are too general to be of decisive assistance.  Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."

[6] (1975-76) 135 CLR 616 at 621-622 per Mason J

24 The scheme of the Act involves the conferral of extensive administrative powers on the Registrar. An analysis of the legislative provisions confirms that 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.

25     In these circumstances, the Magistrate was correct in conducting a hearing de novo.

Appeal to the Supreme Court

26 An appeal lies to this court by reason of s 40 of the Magistrates Court Act 1991 (SA). Rule 97.18(e) of the Supreme Court Rules empowers this court to:

"... make any order which might have been made by the Court or tribunal appealed from." 

27     Counsel for the Registrar submitted that the court should only interfere with the exercise of the magistrate's decision if satisfied that the magistrate erred by:

"- misapprehending the principles upon which the discretion is to be exercised; or

- misunderstanding some relevant matter; or

- taking into account a matter to which he should not have had regard; or

- giving weight to a matter which he was not entitled to give weight to."

28     Counsel relied on House v The King[7].

[7] (1936) 55 CLR 499; see also Dinsdale v R (2000) 175 ALR 315 at [3]

The Magistrate’s Decision

29     As earlier observed, the Magistrate endorsed the reasons of the Registrar but gave no reasons for his decision. This has caused Mr Johnson some distress.  He said he has lost faith in the justice system. 

30     The provision of reasons is important. As was said in Papps v Police[8]:

"... the need for justice to be seen to be done represents a basis against which the adequacy of reasons are to be assessed."

[8] (2000) 77 SASR 210 at 219

31     The magistrate's acceptance and endorsement of the Registrar's reasons provides a basis for understanding why Mr Johnson's appeal was rejected.  However, the magistrate's perfunctory manner in resolving the appeal has left Mr Johnson with a sense of having been treated unfairly. 

32     Mr Johnson's sense of grievance may have been compounded by the fact that the magistrate in effect refused to renew the licence despite his apparent acceptance that it would be appropriate for Mr Johnson to shoot at a gun club.  However this may be explained by the fact that the magistrate understood that Mr Johnson would be able to shoot at the Crystal Brook Club without holding a firearms licence.

33     Mr Johnson has since moved to Whyalla.  On appeal, he asserted that to be allowed to shoot at any of the Whyalla clubs he needs to hold a gun licence.

The Renewal Application

34 The renewal of a licence is addressed by section 19 of the Act. Section 19(5) provides that the provisions governing the application for a new licence:

"apply in relation to the determination of an application for the renewal of the licence."

The procedure for renewal is identical to the procedure for applying for a new licence. 

35     Section 12 addresses the Registrar's duties with respect to granting or refusing renewal applications.

"12   (6)    Subject to this section, where an application for a firearms licence is                   properly made the Registrar may only refuse the application if—

(a)    —

(i)     the Registrar is not satisfied that the applicant is a fit and   proper person to hold the licence applied for; or

(ii)    the proposed licence would authorise possession of a class C or D firearm and the Registrar would not be prepared to grant a         permit to the applicant to acquire a firearm of that class; or

..................         (iii)   the Registrar is not satisfied that the applicant will keep   .................. firearms in his or her possession secured in accordance with   this Act; or

..................         (iv)   the Registrar is satisfied that the applicant could not use any   .................. firearm for the purpose or one or more of the purposes to be   endorsed on the licence; or
..................         (v)    the Registrar is satisfied that the applicant could not use any   .................. firearm of the class or one or more of the classes to be   endorsed on the licence in accordance with the conditions of   the licence; or  

..................         (vi)   to grant the application would, in the Registrar's opinion, be   .................. contrary to the public interest; and

(b)... the consultative committee agrees that the application should be refused.

.................. (7)   An application for a firearms licence authorising possession of a                 .................. prescribed firearm can only be granted if the Registrar is satisfied—

.................. (a)    that the prescribed firearm will be used for a purpose authorised by   the regulations; and

.................. (b)    that the applicant is a fit and proper person to have possession of the                   .................. prescribed firearm."

36     Counsel for the Registrar submitted that Mr Johnson was applying to renew a prescribed firearms licence. There is a significant difference between applications for renewal of prescribed firearms and applications for renewal of other firearms.  A person who duly applies for renewal of a licence for an "ordinary" firearm is entitled to renew unless at least one of the criteria set out in subsection (6) is not satisfied.  However there is no presumption in favour of renewal of a licence to possess a prescribed firearm. 

37     Prescribed Firearms

38 "Prescribed firearm" is defined by the Firearms Regulations 1993:

"8. (1) The following firearms are prescribed firearms:
...
         (e)     air rifles and air guns having one or more barrels of less than 250                millimetres in length;

(f)     firearms having an overall length of less than 750 millimetres (but              not handguns or power heads);

(g)    firearms (but not handguns) designed to be reduced in overall length                   by folding, telescoping or any other means to a length of less than                750 millimetres and then to be capable of being fired;

39 The evidence suggests that Mr Johnson was applying to renew an "ordinary" licence - not a prescribed firearms licence. Mr Johnson previously held a class A licence. He was authorised to possess class A firearms as defined in s 5 of the Act which provides:

"5. (1) (a) air rifles, ...

.........          (b)    .22 rim fire rifles (not being self-loading rifles); and ..."

40     Rifles are not prescribed firearms unless they are made or have been shortened to lengths less than those specified in regulation 8.  Mr Johnson gave evidence that he owned two firearms, an air rifle and a .22 rifle. There was no suggestion that either had been shortened. It would appear that as long as his firearms had not been tampered with or "sawn off", they fell outside the definition of a "prescribed firearm".  I proceed on that basis.

41     Mr Johnson’s Application

42 Mr Johnson's application came within s 12(6) of the Act and could only be refused if section 12(6)(a) and 12(6)(b) applied. Section 5 provides presumptions about whether a person is 'fit and proper'. The section provides:

"5. (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 convicted of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; 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; 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 a domestic violence restraining order under the Domestic Violence Act 1994 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."

43     Mr Johnson has a history of offending. The offences stretch back many years.  His history provides proper grounds for the Registrar's refusal to renew his licence. 

Should a Conditional Licence be granted?

44     It does not appear that the issuing of a licence with conditions to enable Mr Johnson to have gun club membership was expressly considered.

45     Section 13 is in the following terms:

“ (1) A firearms licence may authorise possession of a particular firearm or firearms of a particular class, and must be endorsed by the Registrar with the purpose or purposes for which that firearm or firearms of that class may be used by the holder of the licence.

(2) A firearms licence can only be endorsed with a purpose or purposes prescribed by regulation or approved by the Registrar pursuant to the regulations.

...
         (4) Subject to this section, a firearms licence is subject to—

(a)    any licence conditions prescribed by the regulations; and

(b)    any licence conditions imposed by the Registrar with the approval of                  the consultative committee; and

(c)     any licence conditions imposed by the Registrar with the agreement           of the holder of the licence.

(5) The Registrar may impose licence conditions pursuant to subsection (4) on the grant or renewal of the licence or at any time during the term of the licence."

46     Therefore, the Registrar, with the approval of the Consultative Committee, may impose licence conditions.  Alternatively, the Registrar may impose licence conditions with the agreement of the licence holder.  Stringent conditions can be imposed.

47     As observed, after hearing the application de novo, the magistrate endorsed the Registrar's decision.  However, in the course of the hearing, he expressed the view that Mr Johnson could shoot at the Crystal Brook shooting club.  Had Mr Johnson needed a licence to do so, it is unclear whether the magistrate would have been prepared to grant a licence subject to conditions.  Conditions, requiring Mr Johnson to secure his firearms at the club's premises, not to remove the guns without approval in writing from the Registrar and only to use his guns under supervision at the club could have been imposed.

48     It was accepted by counsel for the Registrar that Mr Johnson was free to reapply for a firearms licence. 

49     Mr Johnson submitted that he had owned and used guns for most of his life and that he was a founding member of the Snowtown and Districts pistol and shooting club.  He wanted a firearms licence so that he could continue shooting at a gun club.  Mr Johnson asserted that the gun clubs at Whyalla require their members to hold a licence and that as a visitor, he would be restricted to a limited number of "shoots".

50     There is insufficient information  to properly consider the grant of a licence renewal, subject to conditions.  Mr Johnson provided scant information about the requirements of the Whyalla gun clubs.  I consider that it would be inappropriate for me to make any decision on the information currently available.

51     Mr Johnson submitted that in the event that his appeal was dismissed he would seek an order for the return of his firearms in a deactivated state.  Counsel for the Registrar indicated that this should cause no difficulty. 

Conclusions

52     The decision made by the Registrar and endorsed by the Committee was an appropriate order.  In my view, Mr Johnson's antecedents and in particular, his history of offending, fully justified the decision. The magistrate was correct in dismissing the appeal.  No error has been demonstrated.  His simple adoption of the Registrar's reasons, although unfortunate, did not amount to error in the circumstances of this case.  I am satisfied that the correct decision was made.

53     The appeal is dismissed.

JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1The application was for the renewal of a licence to possess an air rifle and a .22 bolt action repeater rifle.

2      I take CWOP to indicate conviction without penalty

3      I take WOC to indicate without conviction

4      Hansard   14 April, 1977 at 3448

5      Hansard 10 July 1996 at 1919

6 (1975-76) 135 CLR 616 at 621-622 per Mason J

7 (1936) 55 CLR 499; see also Dinsdale v R (2000) 175 ALR 315 at [3]

8 (2000) 77 SASR 210 at 218-219