Kashani and Commissioner Of Police

[2010] WASAT 80

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: FIREARMS ACT 1973 (WA)

CITATION:   KASHANI and COMMISSIONER OF POLICE [2010] WASAT 80

MEMBER:   MR T CAREY (MEMBER)

HEARD:   23 APRIL 2010

DELIVERED          :   4 JUNE 2010

FILE NO/S:   CC 1944 of 2009

BETWEEN:   NAEIM KASHANI

Applicant

AND

COMMISSIONER OF POLICE
Respondent

Catchwords:

Firearm licence under Firearms Act 1973 (WA) ­ Application for licence when two other firearms held ­ Whether genuine reason for additional firearm ­ Whether particular kind of firearm could be reasonably justified ­ Whether genuine need for Category B firearm established ­ Whether issue of licence not desirable in interests of public safety

Legislation:

Firearms Act 1973 (WA), s 11(1), s 11A, s 23(9a), s 23(9)(c)
Firearms Regulations 1974 (WA) Reg 6A, Sch 3

Result:

Application unsuccessful
Commissioner's decision affirmed

Category:    B

Representation:

Counsel:

Applicant:     Mr P Marsh

Respondent:     Senior Constable S Bagley

Solicitors:

Applicant:     Paul Marsh

Respondent:     Commissioner of Police

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The applicant sought an extension of his firearm licence to include a .223 rifle.  He was already licensed for a .22 rifle and a .270 rifle.  The reason he gave for seeking the additional rifle was that it would be used for the eradication of vermin such as wild dogs and foxes.  He contended that the .223 rifle was better suited for such a purpose than his existing firearms.  His application to be licensed for the .223 was refused by the respondent on a number of grounds.

2. On its review of the refusal decision, the Tribunal considered the necessary requirements under the firearms legislation, namely, whether there was established a genuine reason for possessing the firearm sought, including whether the particular kind of firearm could be reasonably justified; whether, the .223 being a Category B firearm, there was a genuine need for such a firearm, in the sense that a Category A firearm would be unsuitable for the required purpose; and whether granting the licence would not be desirable in the interest of public safety.  It was not satisfied as to the first two requirements.  The evidence did not indicate the existence of any current wild dog problem, and the applicant's existent firearms could be used to deal with other vermin such as foxes and rabbits adequately.  It was not, however, satisfied that any public safety ground for refusing the licence had been made out.

3. In light of the Tribunal's findings in relation to genuine reason and genuine need, the application was dismissed and the respondent's decision affirmed.

Introduction

1. The applicant, Naeim Kashani (Mr Kashani) has owned a rural property near Toodyay since 2005.  There is currently no residential dwelling on the property.  Mr Kashani expresses the intention that he will live there in the longer term.  He visits his property, as often as he can, given that he lives and works in Perth.  He gets to his property on average once a week.

2. Mr Kashani's property comprises 113 hectares.  Its topography is almost entirely hilly or rugged.  There is a height differential between the highest and lowest points of the property of approximately 75 to 80 metres.  For the most part it is heavily wooded.

3. Mr Kashani currently holds a firearm licence in respect of two firearms.  Both firearms are co­licensed with his brother.  He has been licensed for a .22 Norinco rifle bolt repeater since 2005.  He has also been licensed to operate a .270 Winchester rifle bolt repeater since about 2007.

4. On 16 October 2008, Mr Kashani applied for an extension of his licence to include a .223 Winchester rifle bolt repeater.  In the application form, he stated, as the reason for applying for a licence for the .223 rifle:

   To be used for the eradication of vermin such as foxes and wild dogs.

5. A delegate of the Commissioner of Police (Commissioner) determined that Mr Kashani's application should be refused on the ground that the licence extension was not desirable in the interests of public safety, and that Mr Kashani's use of the particular firearm could not be reasonably justified.

6. Mr Kashani seeks review of the delegate's decision.

Issues

1. Based on the written and oral submissions of the parties, the issues to be determined, as I see them, are:

   (a)whether Mr Kashani satisfies the statutory requirements of 'genuine reason' and 'genuine need' for acquiring and possessing a .223 rifle; and

   (b)whether there exists any residual basis to refuse the application based on the public safety ground.

Genuine reason/genuine need

1. Section 11(1) of the Firearms Act1973 (WA) (Firearms Act) states relevantly:

   (1)The Commissioner cannot grant an approval or permit or issue a licence under this Act to a person if the Commissioner is of the opinion that —

   (a)to do so would be contrary to section 11A or regulations under section 11B or 11C;

   (b)it is not desirable in the interests of public safety; …

2. Section 11A, which contains the heading 'Genuine reason required in all cases', provides relevantly:

   (1)An approval or permit cannot be granted, and a licence cannot be issued, under this Act to a person who, in the Commissioner’s opinion, has not been shown to have a genuine reason for acquiring or possessing the firearm or ammunition for which the approval, permit, or licence is sought.

   (2)A person has a genuine reason for acquiring or possessing a firearm or ammunition if and only if —

   …

   (c)it is for use in hunting or shooting of a recreational nature on land the owner of which has given written permission for that hunting or shooting;

   (d)it is required by the person in the course of the person's occupation;

   …

   (3)A person does not have a genuine reason for acquiring or possessing a firearm or ammunition of a particular kind unless the Commissioner is satisfied not only as to the person's reason for acquiring or possessing a firearm or ammunition but also that the particular kind of firearm or ammunition can be reasonably justified.

3. The reasons given by the Commissioner's delegate for refusing the licence application did not include a failure to establish the existence of one of the limited grounds for genuine reason under s 11A(2) of the Firearms Act. Taking those grounds at face value, and those that are reproduced above are the only ones which could arguably fit Mr Kashani's circumstances, none of them is particularly apposite to a case such as his. Mr Kashani is a rural property owner, but farming is not his occupation, making the s 11A(2)(d) ground inapplicable. He lives in a suburb of Perth and works in information technology. He wishes to have the firearm applied for when he visits his rural property, in the main, on weekends. Neither does the s 11A(2)(c) ground have ready application, Mr Kashani himself being the owner of the land on which the proposed hunting or shooting of recreational nature is contemplated. However, as I take the Commissioner's position, he regards the licence application as falling foul of other provisions of the Firearms Act which relate to the characteristics of the particular firearm being applied for. Perhaps he felt constrained in raising the possibility that none of the s 11A(2) grounds applies by reason of the fact that Mr Kashani has been licensed on two previous occasions. Whatever the reason, I will direct my deliberations to those issues upon which the Commissioner determined the matter adversely to Mr Kashani.

4. Section 11A(3) of the Firearms Act imports into the notion of genuine reason a requirement that the particular kind of firearm the subject of the licence application be capable of reasonable justification. What this means in practice is that a licence applicant must show some rational basis for justifying holding the particular firearm sought.

5. A question arose at the hearing of the relevance of Mr Kashani's other firearms to the genuine reason question. Counsel for Mr Kashani, Mr Marsh, submitted that once a particular firearm is capable of reasonable justification by reference to a particular purpose, that is the end of the matter and the holding of another firearm becomes irrelevant. I do not accept this submission. The primary requirement for licence applicants appearing in s 11A of the Firearms Act is that the applicant demonstrates a genuine reason for acquiring or possessing the firearm for which the licence is sought. Section 11A(3) contains, in double negative form, the further requirement that the particular kind of firearm sought to be licensed can be reasonably justified. But it does not detract from the broader genuine reason requirement. A person will not have a genuine reason for acquiring a firearm where the purpose for which the firearm is required is already catered for by another firearm or firearms. If the argument on behalf of Mr Kashani was accepted, the absurd result would follow that an applicant could successfully apply to be licensed for multiple identical firearms, based on satisfaction of the s 11A(3) test in each case.

6. I turn then to consider whether Mr Kashani has demonstrated a genuine reason for possessing a .223 calibre rifle, having regard to his other licensed firearms.

7. Mr Kashani's asserted reason, contained in his written statement for the purposes of this proceeding, was: 

   My particular reason and purpose for this firearm is to be able to respond to and deal with the presence of wild dogs and foxes on my property.

8. This is consistent with the reason given in Mr Kashani's licence application.

9. The Commissioner submits that such a reason does not stand up to scrutiny of the facts.  He relies, firstly, upon a signed statement of Mr Boggs, Mr Kashani's rural neighbour, who said:

   The only feral animals in the area are cats, foxes and rabbits.  I have not seen or are aware of any wild dogs in the area.

10. Mr Boggs was not available for cross­examination at the hearing.  As such, the weight to be attached to his statement is diminished.  Fortunately, his was not the only evidence going to the presence of animals to which I am able to have regard. 

11. The Commissioner also relied on the evidence of the Officer­in­Charge of Toodyay Police station, Sergeant McComish.  In his written statement, Sergeant McComish said:

    My inquiries also indicate that there were no issues in the area with wild dogs and the feral animal population consisted of foxes, cats and rabbits.

12. Sergeant McComish gave evidence at the hearing.  He explained the reference in the quoted passage to 'my inquiries' as comprising speaking to Mr Boggs; speaking with other farm holders in the area who had applied for their firearm licences during his approximate two and a half years in Toodyay; and his wider experience as a police officer of 23 years standing, most of which has been in rural postings.

13. Under cross­examination, Sergeant McComish said that the interpretation he gave to 'wild dogs' was to either dingos or the results of interbreeding of dingoes with domestic dogs.  He did not exclude the possibility of other types of dog running wild on properties in the area.  As Mr Marsh made clear at the hearing, Mr Kashani's reliance upon the presence of 'wild dogs' in the area was not with reference to those categories referred to by Sergeant McComish, but to dogs which had been domesticated but were permitted to roam to the point where they were 'out of control', as well as feral dogs.

14. In his written statement, Mr Kashani said: 

    I have from time to time seen dogs wandering on my property and I know that in the past there have been cases of dogs attacking sheep on a neighbouring property to my east.  This was about three years ago.

15. Mr Kashani gave evidence that he intended to keep sheep and poultry at some future time, and that he had constructed a large enclosure for this.  In 2007 he had introduced poultry to his property, comprising some six or seven chickens in another small enclosure.  He said that he had seen foxes from time to time.  He has shot two foxes with his .270 rifle.  Rabbits are also a potential issue for him.  However, my strong impression, gained from his written and oral statements, is that Mr Kashani's predominant reason for applying to license a .223 rifle was to equip him deal with the 'wild dog problem', such as it is.

16. Under cross­examination, Mr Kashani confirmed that he was aware of one case only of sheep being attacked by dogs, which was three years previously.  Contrary to what appears in his written statement, Mr Kashani said that he had himself seen no wild dogs.  However, he maintained that wild dogs represented a 'menace', that it was his responsibility as a rural property owner to 'deal with these pests when the opportunity arises on my property', and that their number (or lack thereof) was irrelevant.  His evidence in this regard appears to have been heavily influenced by what he was told by a neighbour shortly after purchasing his property to the effect that there were wild dogs in the area and of the need to eradicate them.

17. For the sake of completeness, I refer to evidence of Mr Barry Wilmot going to the issue of wild dogs.  Mr Wilmot has been involved in shooting for about 50 years.  He hunted on pastoral and farming properties through Western Australia during that period.  He is a life member of the Western Australian branch of the Sporting Shooters Association of Australia, has been a member of field and game associations since 1980, and has owned and operated firearms retail shops.  He is a published author of a book on reloading firearms and a contributor to a shooting magazine.  According to Mr Wilmot, uncontrolled dogs, usually described as wild dogs, 'are often a problem in areas near towns such as Toodyay'.  He said the dogs are capable of doing enormous damage in a short time.  Almost invariably, a sheep property will have a dog problem at some time, depending on control measures in the whole district.  According to Mr Wilmot, 'the general ethos in rural areas is that any dog found roaming without apparent control is liable to be shot.'  Ensuring effective measures in relation to wild dogs is seen as part of being a good neighbour.

18. I accept the potential, in rural areas where animals are kept, of wild dogs, foxes and other pests causing damage. But Mr Kashani has never seen a wild dog, in the sense he wishes to convey of an uncontrolled or feral dog, on his property, despite having owned it since 2005 and visiting on average every week. He did not refer to any cases of the chickens he had from 2007 being attacked, whether by wild dogs or any other animal. The genuine reason test under s 11A of the Firearms Act, and the reasonable justification requirement of s 11A(3), require a licence applicant to demonstrate a particular existing need for the firearm being sought. Mr Kashani's main concern seems to be that he be armed now with the most appropriate firearm to deal with problems he anticipates with wild dogs in the future. On a proper construction, s 11A does not allow access to firearms for such future contingencies.

19. As for what are clearly second-order concerns of Mr Kashani about foxes and rabbits, he admits having shot two foxes with the .270 rifle, albeit emphasising the 'unfriendly' nature of that firearm in terms of its weight, the need to regularly practise with it in order to maintain accuracy, and also the greater danger which it poses compared with a .223 rifle.  The evidence going to the rabbit population on the farm was scant.

20. Mr Wilmot's evidence, although corroborating Mr Kashani's criticisms of the .270, and explicitly preferring a. 223 to a .270 and a .22 for controlling the types of animals mentioned, was to the effect that the .270 and the .22 were capable and effective in eradicating foxes, the .22 at a distance from 50 to 60 metres and the .270 over greater distances.  This evidence is a sufficient basis to reject the claim of a genuine reason to acquire a .223 rifle for the purpose of eradicating foxes and rabbits, having regard to both the general requirement of genuine reason and the gloss that the .223 be capable of reasonable justification.

21. In addition to the s 11A criteria, by reason of the fact that the .223 rifle comes within Category B of Sch 3 to the Firearms Regulations 1974 (WA) (Firearms Regulations), it is necessary that Mr Kashani show that a 'genuine need' for that particular firearm exists. The effect of s 11B of the Firearms Act and reg 6A and Sch 3 of the Firearms Regulations is in order for Mr Kashani to demonstrate genuine need, he must show that a firearm of category A would be inadequate or unsuitable for the purpose for which the .223 is required.

22. Once again, Mr Kashani's case on genuine need is compromised by the removal of the eradication of wild dogs as a legitimate basis to acquire the firearm sought.  It depends upon whether eradication of foxes and rabbits is not reasonably possible without recourse to Category A firearms. 

23. Mr Kashani's evidence was that his experience in shooting foxes made him aware that the .22 rifle was not adequate.  The .270 is noisy, high powered and heavy, requires regular practise to shoot accurately and an 'unfriendly firearm to use'.

24. The test I must apply, in the context of the s 11B, requirement of genuine need, is whether Mr Kashani's current Category A type firearms are not suitable. Whilst I accept that they are not best firearms for rabbit and fox eradication, they are sufficient to satisfy a description of suitability for that purpose. In the circumstances, Mr Kashani has failed to satisfy the onus he carries of establishing that his Category A firearms are not suitable. He therefore fails to establish a genuine need for the .223 license sought. The .22 is a rim fire rifle, and as such is a Category A firearm. It was not made plain before me whether the .270 rifle is a Category A firearm. If it is, Mr Kashani is unable to meet the genuine need test, based on Mr Wilmot's evidence that the two firearms represent an effective culling method over all distances. If it is not, Mr Kashani may well be able to satisfy the genuine need test, given the effect of Mr Wilmot's evidence that effective eradication of foxes and rabbits was possible by the combined use of the .22 and .270. However, Mr Kashani's failure to satisfy the genuine reason test remains fatal to his application.

Public safety

1. The alternative basis upon which the Commissioner's decision was based, and he continues to rely, is that it would not be desirable in the interest of public safety to grant the licence for the .223 firearm (see s 11(1)(b) of the Firearms Act).

2. The public safety ground has two elements.  The first derives from Mr Boggs' signed statement, which included the following passages:

   7.Since moving in a (sic) have heard numerous guns shots coming from the direction of 508 Salt Valley Road.

   8.We have also not received any notice of when any shooting may take place.

   9.About a week ago I was going for a walk in the late afternoon on our property.  I heard gun fire and was concerned for my safety and retreated to my home.

   10.I did not see who was shooting but believed the gun fire was coming from the direction of 508 Salt Valley Road.

   11.I feel uneasy about shooters in the area around my home as there are numerous houses and vehicle traffic on Salt Valley Road.

   12.The area is also very hilly and from my observations is not suitable to safely shoot a firearm.

3. As I have indicated, Mr Boggs did not attend to hearing.  He was therefore not available for cross­examination, nor to answer queries I had in relation to his statement.  Unlike the contents of his statement regarding the presence of wild dogs and other animals, his evidence of shooting, the location of which he clearly attributed to Mr Kashani's property, and his views on the suitability of the local topography for shooting, was the subject of conflicting evidence.

1. Sergeant McComish, who conducted an inspection of Mr Kashani's property as part of his assessment of the licence application, referred to the very undulating nature of the general area, the road abutting the property to the south (Salt Valley Road), and the existence of numerous houses, sheds and buildings within a distance of one to 2 kilometres.  According to Sergeant McComish's written statement:

   My overall assessment of the property is that there are very few situations where a high powered firearm could be used in safety on the property, given the hilly terrain and close proximity of neighbouring land owners.

2. An immediate difficulty with the expression of such an assessment is that Mr Kashani had previously been licensed for a .270 rifle for use on the same property.  Mr Wilmot's evidence was that the .270 is, like the .223 rifle, a high velocity firearm, with a heavier projectile weight than the .223, which projectile would travel somewhat further than from the .223 (approximately 1200 to 1500 metres).  In fairness to Sergeant McComish, he was not involved in the decision to license the .270.

3. According to Sergeant McComish's written statement, any shots fired in a southerly direction would be towards Salt Valley Road.  Under cross­examination, he accepted, having regard to a large aerial photograph of the property which is in evidence, that there are several locations on the property where it would be possible to use a .223 firearm safely.  Sergeant McComish also accepted that the firearms currently held by Mr Kashani could result in bullets being discharged outside the property boundaries.  He was not able to give any opinion on the risk that ricochet represents in relation to any firearm.

4. Mr Kashani gave evidence that he only shoots where he positively knows it is safe to shoot, and he never shoots so that a projectile might leave the property. It does not need to be pointed out that all firearm owners are subjected by a general law requirement to exercise due care in their use of a firearm. This duty is bolstered by provisions of the Firearms Act which deal with the safe use of firearms, including s 23(9)(c) (discharging a firearm onto or across any road) and s 23(9a) (discharging a firearm to the danger or so as to cause fear to any person).

5. Mr Wilmot's written statement was quite clear on the question of the possibility of safe use of the firearm being sought on Mr Kashani's property:

   In my opinion the topography of the property is such that there are many places and directions in which a .223 WSSM chambered rifle can be shot with no risk that the projectile will travel beyond the visible back drop.

6. Mr Wilmot also pointed, in his oral evidence, to one of the advantages of the .223 over the .270 as being that a projectile from the former disintegrates on impact when the target is missed, whereas a projectile from the latter may ricochet.

7. I find, based on the preponderance of the evidence, that a licence for the .223 rifle should not properly be refused on the basis that the use of the firearm at Mr Kashani's property represents an unacceptable risk to public safety having regard to the property's location and characteristics.

8. The second element of the Commissioner's argument in support of the public safety ground is that public safety may be compromised whenever the number of firearms held by licensees increases unnecessarily.  Although this is a legitimate concern, it is one which the requirements of genuine reason and genuine need are designed to meet.  There is, in my opinion, no warrant to deny a person the grant of a licence, where a genuine reason (and genuine need, where applicable) has been established, on the basis of public safety, merely by reason of the inevitable increase in firearm holdings that would result.

Order

1. For the above reasons, the Tribunal orders:

   1.The application for review is dismissed.

   2.The decision of the Commissioner of Police to refuse to grant the applicant a firearm licence for a .223 Winchester rifle bolt repeater is affirmed.

I certify that this and the preceding [48] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MR T CAREY, MEMBER