Marksman Training Systems Pty Ltd v Registrar of Firearms (No 4) - [2016] SADC 154

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MARKSMAN TRAINING SYSTEMS PTY LTD v REGISTRAR OF FIREARMS (No 4)
[2016] SADC 154
Judgment of His Honour Judge Tilmouth
15 December 2016
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS
Appeals allowed against decisions of the Registrar of Firearms of April 2013 cancelling the appellant's Firearms Dealers and Range Licences in view of the compliance by it with the licences since.
Marksman Training Systems Pty Ltd v Registrar of Firearms [2014] SADC 150; Marksman Training Systems Pty Ltd v Registrar of Firearms (No 2) [2015] SADC 5; Marksman Training Systems Pty Ltd v Registrar of Firearms (No 3) [2015] SADC 16; Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72; Firearms Act 1977 (SA) s 21, s 25, s 26B(1), s 26B(8), s 26C, s 26C(1), s 36A; Firearms Regulations 2008 s 21, 22; District Court Act 1991 (SA) 42E(3), s 42F, s 42G; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; Allesch v Maunz (2000) 203 CLR 172; Fox v Percy (2003) 214 CLR 118; Andrews v DPP [1937] AC 576, referred to.

MARKSMAN TRAINING SYSTEMS PTY LTD v REGISTRAR OF FIREARMS (No 4)
[2016] SADC 154
The proceedings

These long running appeals against two decisions of the Delegate of the Registrar of Firearms made on 8 April 2013 cancelling the appellant’s Dealers and Firearms Range Licences, return to the court for a fourth time.[1]
[1] Hereinafter the appellant is referred to as Marksman, and the Registrar of Firearms or his Delegate, simply as the Registrar.
The history of the litigation is an extensive one. First set for hearing over two days on 5 and 6 September 2013, the appeals occupied further sitting days in December 2013, and again in February, June and July 2014. A judgment delivered on 29 August 2014, dealt with primary fact finding and complex issues of statutory construction.[2] Further submissions were taken in November 2014 in light of the conclusions made in the first judgment. The appeals were allowed and Marksman’s firearms licences reinstated subject to conditions, in a second judgment delivered on 22 January 2015.[3] Following still further submissions from the parties received in early February 2015, the court made final orders on 20 February that year, including orders in relation to costs.[4]
[2]    Marksman Training Systems Pty Ltd v Registrar of Firearms, [2014] SADC 150 (Judgment 1).
[3]    Marksman Training Systems Pty Ltd v Registrar of Firearms (No 2), [2015] SADC 5 (Judgment 2).
[4]    Marksman Training Systems Pty Ltd v Registrar of Firearms (No 3) [2015] SADC 16 (Judgment 3).
Appeal proceedings
Appeals instituted by the Registrar of Firearms were heard by the Full Court on 14 and 15 September, and 23 October 2015. By a majority they were allowed, with orders made remitting both matters to me for redetermination, in these terms:[5]
[5] Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2), [2016] SASCFC 72, 22 July 2016.
1.Grant permission to the Registrar of Firearms to amend its grounds of appeal in action no. SCCIV-15-312 by adding proposed ground 8 of appeal.
2.Allow the appeal by the Registrar of Firearms to this Court in action no. SCCIV-15-312 and set aside the Orders made by Judge Tilmouth on 20 February 2015.
3.Remit the appeal by Marksman Training Systems Pty Ltd to the District Court in action no. DCCIV-13-1155 for further consideration by Judge Tilmouth, including for his Honour:
3.1To “examine” the decision and reasons of the Registrar of Firearms, giving due weight both to those reasons and to the reasons of the Firearms Review Committee in accordance with the reasons of this Court; and
3.2to give consideration to whether the parties should be given the opportunity to call further evidence pursuant to s 42E(1) of the District Court Act; and
3.3to decide and dispose of the appeal by Marksman Training Systems Pty Ltd to the District Court in action no. DCCIV-13-1155 and to pronounce new orders to that end having regard both to 3.1 and 3.2 above and to the reasons of members of this Court, which new orders may be the same as, or different from, the orders originally pronounced by his Honour.
4.Stay the orders made by the Delegate of the Registrar of Firearms on 8 April 2013 to cancel the Firearms Dealers Licence 280511L of Marksman Training Systems Pty Ltd and to cancel the Firearms Licence 315699D of Marksman Training Systems Pty Ltd until the making of new orders by Judge Tilmouth pursuant to order 3 above.
5. The Court will hear the parties as to costs of the appeal to this Court.
These orders were made on a very narrow and technical basis that error occurred in confining the appeals in the District Court to an examination of the reasons of the Registrar, without considering the subsequent decision of the Firearms Review Committee of 15 May 2013, affirming the decision of the Registrar. Section 26B(1) of the Firearms Act 1977 (SA) confers a right of appeal to the Committee, whilst at the same time confining powers of disposition to affirmation or remission, under s 26B(8) thereof.
Section 26C(1) of the Firearms Act proceeds to further confer rights of appeal to the District Court sitting in its Administrative and Disciplinary Division, in these terms:
26C—Right of appeal to District Court
(1)A person aggrieved by—
(a)a decision of the Registrar that has been affirmed by the Firearms Review Committee; or
(b)if a matter is remitted to the Registrar by the Firearms Review Committee, a decision of the Registrar following remission of the matter; or
(c)a decision of the Registrar to issue a firearms prohibition order,
may appeal against the decision to the District Court.
Section 42E(3) of the District Court Act 1991 (SA) requires the court in exercising this appellate jurisdiction, to ‘give due weight to the decision being appealed against and not depart from the decision except for cogent reasons’. This court is invested with wider statutory powers of intervention than the Committee, to affirm, rescind or to ‘remit matters to the original decision maker’, under s 42F of the District Court Act. Section 42E(1) of the District Court Act requires the court ‘… on an appeal’ to ‘examine the decision of the original decision-maker on the evidence or material before the original decision-maker’.
As Peek and Stanley JJ explain, the Registrar maintained during the course of the proceedings in the District Court, ‘that the reasons of the Committee were irrelevant …’, whereas in the Full Court the Registrar took the reverse stance by maintaining the ‘decision of the original decision maker’ included that of the Firearms Review Committee.[6] In essence the majority held that the reasons of the Committee were a ‘composite … part of the reasons to be considered pursuant to s 42E of the District Court Act’.[7] In the result both appeals were allowed on the premise that jurisdictional error occurred, that is by failing to take into account the decision of the Firearms Review Committee, since this was a mandatory condition for the valid exercise of the appellate jurisdiction vested in the District Court.[8] Peek J in dissent took the contrary view on the point of statutory construction, that the decision of the Committee was duly considered in any event, and in respect of the merits.[9]
[6] Full Court Judgment, [17]-[18] and [319]-[320], [325] respectively.
[7] Full Court Judgment, [309], [315].
[8] Full Court Judgment, [316] per Stanley J (Gray J agreeing).
[9] Full Court Judgment, [40]-[41], [53]-[54], [80], [245].
The notion of jurisdictional error has its origins in administrative law, notably in application to the process of judicial review, or upon the issue of prerogative writs, in the context of ouster, privative, or so-called Hickman clauses: Plaintiff S157/2002 v Commonwealth of Australia,[10] Minister for Immigration and Multicultural Affairs v Yusuf.[11] The disposition of appeals reviewed outside the ambit of administrative law, are of course conducted and resolved according to quite different principles belonging to a disparate stream of legal discourse: Allesch v Maunz,[12] Fox v Percy.[13]
[10] (2003) 211 CLR 476, [58]-[60], [62]-[64].
[11] (2001) 206 CLR 323, [69], [82].
[12] (2000) 203 CLR 172, [23].
[13] (2003) 214 CLR 118, [22]-[26].
During the most recent hearing in this court on 21 November 2016, it was conceded by the Registrar that there were ‘cogent reasons to depart from the decisions of the Registrar of Firearms, the subject of this appeal’.[14] The basis of this concession was an audit conducted on 10 October 2016 by the Registrar of Marksman’s premises and firearms. This found no relevant anomalies or transgressions on the part of Marksman in licence compliance, together with Marksman’s successful trading within the limits of its licences over the course of the past few years. In a letter dated 7 November 2016, the Firearms Branch of the South Australian Police (SAPOL) advised Marksman that as a result of this audit ‘all of the firearms held by Marksman Training Systems Pty Ltd under licence numbers 280511L and 315699D were located’. The concession by the Register should be accepted for the reasons given and for the additional reasons to follow.
[14] Registrars Submissions, para 3.
It ought to be noted that Marksman continued to trade under conditions imposed by this court upon allowing its appeals on 22 January 2015, in the following terms:[15]
[15] Judgment 2, [58].
Dealer’s Licence 280611L:
1.     It will not accept firearms for surrender.
2.     It will provide to the Registrar on a fortnightly basis:
2.1     its records of incoming firearms and records of outgoing firearms;
2.2     printouts of its current lists of stock as recorded in its Epitome stocktaking system.
3.The total number of firearms to be held in its dealership stock (including firearms for sale, safekeeping consignment or repair) held on its premises at any one time is not to exceed 275.
4.It will not accept any additional firearms for safe-keeping (that is, for storing on behalf of others), except to facilitate the repair, cleaning or modification of such firearms.
5.Any firearms taken into the possession of the Registrar pursuant to order 1(j) of the 4 June Court Orders shall remain in the Registrar’s possession for a period of 12 months, save that nothing in this order shall prevent the Appellant from surrendering firearms to the Respondent (whether or not such firearms are already in the Respondent’s possession).[16]
[16] Clause 1(j) of the Consent Order, entitled the Registrar to ‘take possession of such firearms which exceed the number provided for in these conditions …’.
Firearms Licence 315699D:
1.The total number of firearms stored by its indoor commercial firing range at any one time shall remain at 86.
2.It may store additional firearms held pursuant to Firearms Licence 315699D in the armoury on the premises of the dealership, provided that any such additional firearms shall be included in the total of 275 firearms.
These conditions were based upon those originally crafted by agreement between the parties as a condition of a stay of the Registrar’s decisions pending resolution of the appeals in the District Court. They were embodied in an order made by Master Blumberg on 4 June 2013.[17] As Peek J observed, these ‘appear to have worked well for a lengthy period’.[18]
Examination of the reasons of the Firearms Review Committee and re-examination of the reasons of the Registrar
[17] Judgment 1, [6] and Appendix ‘A’ thereto.
[18] Full Court Judgment [247], see also the observations of Stanley J, [329].
It is therefore now necessary to give due consideration to the decision of the Firearms Review Committee and review the findings already made with respect to the Registrar’s decisions, according to the tenor of the orders made by the Full Court.[19]
[19] [332] reproduced above.
It is pertinent to note at the outset that the Committee declined to ‘make judgment on the considerable criticisms and allegations levelled at the Delegate of the Registrar of Firearms by the Counsel and Marksman’, on the basis that ‘those issues are matters that should be left for the District Court – if it comes to that’. Those criticisms related to substantial issues of procedural fairness. Given this position, it is hardly surprising that counsel for the Registrar considered this decision to be irrelevant, since the Committee failed to deal with one of the core issues in contention.
For his part Peek J regarded this position as ‘in itself a very “cogent reason” … to depart from the decision’.[20] Having made this preliminary observation, it is now possible to examine the reasons of the Firearms Review Committee, paragraph by paragraph. For the sake of convenience, reference to the Committee’s decision is made according to the paragraph numbers assigned to it in the judgment of Peek J.[21]
·[1] However, the committee had a responsibility to consider the appropriateness of the Delegate’s decision to cancel the Marksmans’ Dealer’s Licence #280511L & Firearms Licence #315699D.
[20] Full Court Judgment, [124].
[21] At [11].
This reference is purely formal, however it further reinforces the narrow confines upon which the Committee considered the appeals. In limiting itself to ‘the appropriateness’ of the decisions, it did less than exercise its full statutory remit to ‘review’ the decisions in accordance with s 26C of the Firearms Act. It follows that the decision of the Committee must be weighed with some caution, bearing in mind the complete failure to consider significant natural justice issues as well as unduly narrowing its focus to the ‘appropriateness’ of the Registrar’s decisions.
·[2] It is evident that in the more recent audits that there were many firearms (handguns and long arms) that were unaccounted for but subsequently located following considerable toing and froing between the Police and the Marksman’s Dealership where firearms were found with their owners locally and interstate, in the shooting range and (unknown to the Committee) other places. In the end 10 firearms (9 Semi auto handguns & 1 rifle) were still outstanding. Some found by the Police in the hands of Criminal elements and, it is understood that enquiries are still under way in that regard.
This issue was analysed in considerable detail in the course of the primary judgment.[22] In this I concluded that in as much as the Delegate failed to admit any room for error in the course of the audits, ‘he overstated the situation’.[23]
[22] Judgment 1, [45]-[50] and [85]-[86].
[23] Judgment 1 [77].
In the second judgment I made the observation that the manual handling system of reporting then in operation was ‘inherently more prone to (human) error than an electronic system, such as that now operated by Marksman’,[24] and that ‘(T)agging errors seemed to have stemmed for the most part, from affixing labels to storage boxes rather than to firearms, a practice it has since abandoned’.[25] As a consequence I drew the following conclusion:[26]
As noted earlier, this issue becomes more germane when consideration is given to the systems now in place to avoid such errors. The fact remains that one has to view the audit results as hardly conclusive in light of the admitted errors on both sides.
[24] Judgment 2, [29].
[25] Judgment 2, [30].
[26] Judgment 2, [33].
It must be acknowledged as it was in the earlier judgments, that express findings were made that in the case of 12 firearms, appropriate records of movement were not completed and that three were found in the possession of unauthorised persons.[27] On the other hand it was also held that the Registrar erred by misconstruing ss 21 and 25 of the Firearms Act and regs 21 and 22 of the Firearms Regulations 2008 (SA),[28] in treating the mere presence of dealership firearms on the range, and vice versa, as contravening licence conditions, because there was no requirement to record the movement between those two places until a purchase or sale was involved, or until another person other than Marksman takes possession by means of ‘sale, giving, lending or hiring’.[29]
[27] Judgment 1, [47], Judgment 2, [4].
[28] Judgment 1, [66].
[29] Judgment 1, [82]-[83] and Judgment 2, [6]-[7].
Still further, adequate explanation for the whereabouts of the rifle referred to was given on appeal and was not the subject of any further complaint by the Registrar,[30] and another firearm was also unaccounted for.[31] It follows that this issue was duly weighed and considered in considerable detail during the course of the appeal process in the District Court.
·[3] The Committee can only speculate but commonsense indicates that, with adherence to the legislation, firearms would be easy to check (Mini Audit) on a daily basis and the likelihood of mistakes, thefts etc would be identified quickly. Furthermore, the likelihood of mistakes/errors in Record keeping would be identified and corrected thus resulting in accurate details being sent to the Police at the end of every month. Thus reducing error rate on the data base.
[30] Judgment 1, [68], [117].
[31] Judgment 1, [71]-[72].
It was not evident at all from the evidence presented to the court, that it was ‘easy to check … on a daily basis’ firearms movement, or that doing so would necessarily identify any problem using the systems then in place, far from it in fact. As pointed out earlier, Marksman previously employed a clumsy manual system which was prone to some error making. In addition some errors were admittedly ‘caused either by error in the documentation completed by Marksman or by erroneous data entry undertaken by SAPOL’ (the Registrar admitted responsibility for 12 errors with respect to the reconciliation of the November 2011 audit returns).[32]
[32] Judgment 1, [73]; Judgment 2, [32].
The evidence produced in the District Court which obviously the Committee did not have the benefit of, was that the ‘old system was no longer up to the task and that a much better electronic system was developed and implemented for the express purpose of dealing with the inadequacies of the earlier system. This topic is elaborated on again later.
·[4] Marksman claims that an ex-employee (Mr [C]) was responsible for the 10 firearms and this may be so but the Committee are not aware of any evidence except a statement (the detail of which is not known by the Committee) from a female employee who claims that she knew of [Mr C] stealing one handgun.
The circumstantial evidence in support of this hypothesis is summarised later.[33] These observations relate to what in fact became 13 unaccounted for firearms. Specific findings of fact were made during the course of the several judgments, based substantially on evidence that was not before the Committee, as follows:[34]
[24]    The conjunction of circumstances giving rise to the inference of third party intervention in relation to the subject missing weapons is a strong one. The highly coincidental facts are that firearms were not reported missing before C’s period of employment between August 2010 and 8 May 2012 and not reported missing since, with the possible exception of the two later firearms, one of which and possibly both might have gone missing in that time. The very fact that SAPOL had seized from him on 8 August 2012 a Remington 308 and the barrel from a Glock firearm both belonging to Marksman, is a particularly telling piece of circumstantial evidence.
[25]    The objective circumstances are such that the distinct possibilities are that Marksman’s security systems were infiltrated to such an extent that the firearms were secreted off the premises without their knowledge, and it necessarily follows, without records of movements being made. Their omission was in a systems failure to detect this accumulated course of events in good time.
[26]    Normally, it is a defence to a criminal charge to show that a forbidden act occurred as the result of an act of a stranger: Norcock v Bowey, Mayer v Marchant, Allen v Chadwick. The act of a stranger therefore potentially remains available to persons charged with offences under the Firearms Act in addition to those provided under s 36A. The question presently under discussion can be resolved in this way, without directly impinging on the interests of Mr C. On the basis of the proven facts and combined force of the circumstantial evidence, I conclude that Marksman has been subject to the act of a stranger in the loss or theft of the subject firearms.
[27] Whilst at common law it remained for the prosecution to rebut the defence once the evidential standard of proof was satisfied by a defendant, I am persuaded of this situation on the balance of probabilities, so that it is unnecessary to resolve any questions of conflict between s 36A and this common law defence, so far as the onus of proof is concerned. In view of the conjunction of the circumstances and the sustained rorting of firearms, I am prepared in the unusual circumstances to find on balance that the theft of firearms from the Franklin Street premises was not intentional on Marksman’s part, and did not result from any failure on its part to take reasonable care to avoid such thefts, within the meaning of s 36A of the Firearms Act, in any event. Section 36A of the Firearms Act ‘…prevents a person who can prove that they had no intention to do anything wrong and no knowledge that they were doing so from being convicted of an offence against the Act’: R v Fuller; R v Zazzaro.
·[5] It is important to note that Mr Andrew Marks’ response to one of the Committee about the [Mr C] involvement was “There is nothing to say he did or did’nt [sic], we just do not know”.
[33] Judgment 1, [116].
[34] Judgment 2, [24]-[27], footnotes omitted.

At the time the Committee considered the matter on 1 May 2013, the disparities were only recently discovered. It is therefore of no surprise that Marksman was somewhat in the dark about what had happened and that Mr Andrew Marks was unable to inform the Committee any better. The fact of the matter is that a considerable body of evidence was adduced before the court that was not available to Marksman or the Committee at those times. Furthermore, the court had the distinct benefit of evidentiary material processed in such a way as to build a substantial circumstantial case about the likely causes lying behind the missing firearms. As Peek J pointed out during the course of his judgment, this material rendered redundant the Committee’s conclusions, because the state of the evidence was materially different.[35] The same observations apply to the dot points 6, 8 and 11 considered below.
· [6] The Firearms Act and Regulations have made it quite clear about the responsibility of Firearms Dealers maintaining movement by records of firearms and indemnity records of Firearms in their possession by way of attaching “Tags” to all Firearms in their possession and scrupulously recording the details of people and firearms in their In & Out Record Books. These requirements are very simple and easy to maintain.
[35] Full Court, [104] per Peek J.
I expressly found Marksman’s departures from the obligation to tag firearms arose for the most part from the abandoned practice of affixing tags to boxes in which firearms were contained, rather than the firearm itself.[36] Whilst it was admitted that there were tagging errors in connection with five firearms,[37] later allegations of incorrect tagging were found unproven.[38] In any case errors of this nature were shown to be of a technical nature, to be accorded little or no weight.[39] Still further, some record keeping allegations were resolved in favour of Marksman.[40]
·[7] Marksman’s Counsel suggested that the incidence of missing/misplaced firearms should be considered against the more than 2000 firearms transactions in 12 months. In fact this translates to approximately 7 transactions per day. Hardly large numbers, particularly if the Dealership attends to its Legislated simple requirements for Identifying & Recording details of Firearms. In the Legislation the term MUST is used regularly and clearly emphasizes the Parliament’s expectation of the Dealer and the importance of efforts to avoid firearms reaching the hands of the wrong people in the community.
[36] Judgment 2, [30].
[37] Judgment 1, [15].
[38] Judgment 2, [37].
[39] Judgment 1, [95]-[99].
[40] Judgment 1, [86].
The anomalies referred to were detected by means of an internal audit of handguns undertaken by Marksman itself, between 23 and 25 April 2012. SAPOL considered 26 firearms registered to Marksman were not then accounted for.[41] Picking up on this observation by the Committee, I observed:[42]
In sum then, of the 37 firearms originally in question, most are since explained. In a business operating a clumsy, outdated manual movement system with about 2,000 movements per year, say 55 movements a day, the oversights are not that significant, numerically speaking. The outcome of these proceedings on this issue turns largely on the adequacy of record-keeping systems now employed by Marksman and their capacity to eliminate these kinds of problems from arising again. That question is examined later in these reasons.
[41] Judgment 1, [8].
[42] Judgment 2, [11]. Here there was a typographical error in as much as ‘55’ should have read ‘5.5’.
I otherwise expressly agreed with the Committee as to its observation concerning ‘Parliament’s ... efforts to avoid firearms reaching the hands of the wrong people in the Community.[43] In the end, this matter was resolved by assessing the strength of Marksman’s present day auditing methods, rather than the weaknesses of those that were in place in the past.
·[8] It is felt, by the Committee, that the audit related difficulties experienced by marksman people and Police in locating firearms can only be attributed to the Dealer not meeting the legislated requirements over time. Not just a short term aberration or momentary lapse. One can only wonder the level of importance that Andrew MARKS gave to the legislated imperative to maintain records and Tagging of all Firearms even though some may have only moved a few metres from the Range.
[43] Judgment 1, [9].
As to this issue, I found Marksman’s systems meant it was possible for firearms to be stolen or removed without detection, that ‘an environment was created which failed to detect firearms stolen or removed’,[44] and that there was:[45]
a systematic failure of record keeping, compounded by the late notification of missing firearms, in as much as Marksman had not conducted regular physical stock takes, except for the audits it voluntarily invited SAPOL to undertake in 2009 and 2011.
[44] Judgment 1, [108].
[45] Judgment 1, [7], [108].
I nevertheless proceeded on the footing that having introduced an effective electronic stock-taking system, it was ‘not clear what more Marksman could do’.[46]
·[9] There is also the failure to report suspected stolen or missing firearms earlier, deciding instead to conduct their own investigations of sorts. This resulted in important records NOT being placed on the Police Data Base in a timely manner and reducing the chances of locating the firearms.
[46] Judgment 1, [163].
As to this subject, I found Marksman had fully complied with its legal obligations and the Registrar had erred in finding otherwise.[47]
·[10] It is also considered that a causal factor was the blurring of the lines between the firearms range and the dealership and this was brought more strongly to the forefront with comments by Mr Marks at the FRC meeting that he had been trying to get a single licence to incorporate the firing range AND the Firearms Dealership. It was evident that Marksman did not maintain a distinct separation between the Range business and the Firearms Dealership business. Some indicators were the co-location of Range firearms and Dealer firearms. As the Dealer, there was an imperative
[47] Judgment 1, [142]-[144].
As Peek J observed in his judgement, ‘there is no way of telling what the last incomplete sentence may have been…’.[48] As noted in the comments on the second dot point above, there were express findings to the effect that the Registrar wrongly made adverse findings against Marksman in respect of the movement of firearms between the dealership and the Range.[49]
·[11] There was considerable discussion about the introduction of an electronic inventory system however the talk had been over a couple of years without much action. A Barcode system would not be the complete answer to the Marksman problems without Mr Andrew Marks taking a more hands on approach with constant and scrupulous adherence to the legislated requirement.
[48] Full Court Judgment, [11], page 8 footnote 3.
[49] Judgment 1, [79]-[84], Judgment 2, [6]-[7].
This conclusion runs contrary to express findings, based upon the implementation of the ‘Epitome’ electronic stock-taking system since fully implemented by Marksman as of 17 June 2013.[50] This has proven to be effective for the purpose of detecting thefts and correcting record keeping or tagging errors and so as to prevent recurrences.[51]
[50] Judgment 1, [162]; Judgment 2, [46].
[51] Judgment 1, [162]; Judgment 2, [54].
As of May 2013 Marksman’s systems were not reconciled against the Firearms Register, even though Marksman had requested and was refused a copy.[52] It was however provided with a copy immediately prior to the June 2013 audit, as a negotiated condition of the interim stay.[53] The Epitome system was developed at considerable expense to Marksman, expressly for the purposes of addressing the very problems identified by the Firearms Branch.[54]
[52] Judgment 1, [162]; Judgment 2, [46].
[53] Judgment 1, [162]; paragraph 1(l) of the consent orders imposing conditions of the stay.
[54] Judgment 1, [162]; Judgment 2, [46].
The prospect of introducing an effective electronic inventory system is now realised and has served to ensure Marksman complies with its strategy and regulatory obligations, to the satisfaction of the Firearms Branch of SAPOL, contrary to the expectations of the Committee. As a further reassurance, Marksman continues to provide SAPOL with fortnightly reports and to supply records of incoming and outgoing firearms movements, even though these are not required as conditions of its licenses.
In sum then, the decision of the Firearms Review Committee was based on incomplete information, a misunderstanding of a number of important facts that were shown to be misconceived, in some cases a misunderstanding of the requirements of the regulatory requirements and an unrealised expectation that any other system of records keeping would prove ineffective. That being so, the reasons of the Firearms Review Committee provide no sufficient foundation to pronounce any different orders, or to alter, vary or amend any of the conclusions drawn in the course of previous judgments. It is for these additional reasons then, that the concession of the Registrar that ‘cogent reasons’ exist to depart from his decisions, was a sound one.
Marksman’s degree of culpability
Having reached the conclusion that it is appropriate to intervene, it becomes desirable to clarify some remarks made in the course of the previous judgments concerning the degree of culpability of Marksman in various transgressions of the firearms regime. For this purpose it is necessary to recall the specific findings made in this respect:[55]
[55] Judgment 1, [178].
[178] For the reasons articulated above, the Delegate erred in the following respects, amongst others:
1.by understating the possibility of error during the November 2011 audit, at [73]-[77];
2.in making the assumption that the mere movement of firearms between the dealership and the range without surrendering possession to another person, required a record of such movements to be kept under the Firearms Regulations, at [78]-[84];
3.in rejecting out of hand Mr McCarron’s account of the terms of the conversation involving the cessation of the employment of C (Appendix G), at [102];
4.insofar as he concluded that firearms stolen from the premises should have been reported, or reported sooner, with considering whether there were deliberate or reckless breaches of s 25(1)(c) of the Firearms Act (at G13), above at [61], [62-64], [122], [145], and in underestimating the strength of the hypothesis that a number of the weapons stolen might be attributable to the unauthorised and illegal acts of an employee, at [116]-[117], [120]-[121];
5.in concluding that SC Steindorf was authorised to attend and inspect Marksman premises on 22 August 2012, within the meaning of ss 21F(9) and or 21G(9) of the Firearms Act and attributing uncooperativeness to Marksman on this account, at [125]-[141];
6.in not separating issues of conditions as between the requirements of each licence, at [161]-[166];
7.in the failure to perceive the issue of public interest was influenced by the extent of C’s involvement in taking missing firearms, at [174]-[177];
8.in erroneously finding firearms 1 and 5 remain unaccountable for, at [68], [71], [72], [117], firearm 14, at [71]-[73], [117], firearm 20, at [76]-[77], and firearm 23, at [124];
9.making findings with respect to the Gecardo air rifle 48074PD, at [95]-[96], no 23 at [124], firearm no 44, at [48], [117] and the Walther 023436, at [97]-[99], without examining and resolving the underlying circumstances;
10.in failing to consider or determine whether breaches by Marksman in connection with firearms numbered 3, 5, 8, 10, 11, 16, 23, 24, 26, 27, 55, 61 and PBZ855 were deliberate or alternatively resulted from the failure of Marksman to take reasonable care to avoid such breaches, at [61]-[62], [122];
11.in failing to have regard to the reputation, honesty and integrity of the Directors and employees of Marksman and of people with whom they associate, when weighing whether Marksman was ‘fit and proper’ to hold each licence, at [171]-[172];
12.by concluding the reported theft of the firearm BLCA295 reflected poorly on the record keeping of Marksman, at [142]-[145].
Equally it is necessary to record again that the Delegate’s findings were upheld in a number of material respects:[56]
[180] On the other hand many aspects of the Delegate’s determinate were upheld, namely:
1.there was a valid act of delegation of the s 20 functions to Chief Inspector Ralphs, at [52]-[59];
2.Marksman failed to report the potential theft of a firearm by C sooner, at [118]-[119];
3.System failures in the auditing systems made it possible for firearms to be stolen or removed, at [108], [114];
4.to the extent of the admission made by the appellant of inadequate or erroneous record keeping with respect to firearms 6, 7, 12, 14, 18, 19, 25, 28, 29, 30, 31, 34, 35, 36, 37, 38, 39, 41, 49 and 52, at [46], [68].
[56] Judgment 1, [180], the cross-references are to paragraphs in that judgment.
Undoubtedly the incursions of greatest significance relate to the what ultimately were 14 firearms (12 handguns and two rifles) unaccounted for in audits conducted in November 2011 and January 2013, three of which were found in the possession of known criminals.[57] A fourth firearm was more recently located with a known criminal since. With respect to these firearms, it was Marksman’s case that these were most likely taken by a former employee.
[57] Judgment 1, [50], [92]-[94].
The circumstantial evidence pointed to in aid of that contention marshals in this way:[58]
[58] Judgment 1, [116], (footnotes omitted).
[116] The evidence pointed to by Marksman as implicating C may be distilled in this way:
·the subject firearms were duly accounted for in the 2009 audit;
·no loss of firearms is reported since the termination of his employment;
·the majority of the firearms concerned are positively shown to have disappeared during the period of his employment;
·C’s criminal history, including firearms-related offences and an offence of theft from a former employer, and what the Delegate described as ‘serious pending charges’ (G13);
·admissions made to L to the effect that C took a handgun from the Marksman armoury which he loaned to an unlicensed friend, a J, who pleaded guilty to possessing the Astra firearm No. 16;
·the evidence that he sold a Glock 26 9mm Pistol later recorded as outgoing to a Security firm for which he was paid directly by cash cheque, and had possibly done so with respect to another firearm with a different security firm;
·that SAPOL had on 8 August 2012 seized from him a Remington 308 shot gun and the barrel of a Glock, both belonging to Marksman and both taken without permission;
·that firearm No. 16 the Astra Pistol (referred to at E11 of the reasons) was seized from the known criminal J, that C had told police he had paid J $5,000, and the unlawful possession of which J pleaded guilty to.
As to this subject, I found that ‘it was simply not open to reject the theft hypothesis’, as the Registrar had done.[59] Immediately after reaching that conclusion I further observed that the Registrar had failed to inquire whether Marksman was entitled to call in aid the general defence to firearms offences otherwise provided for in s 36A of the Firearms Act, namely that it had taken ‘reasonable care to avoid’ the loss or theft of the subject firearms.[60]
[59] Judgment 1, [212].
[60] Judgment 1, [122].
In the second judgment I proceeded to make the affirmative finding that ‘Marksman has been subject to the act of a stranger in the loss or theft of the subject firearms’, and that the theft of those firearms ‘did not result from any failure on its part to take reasonable care to avoid such thefts’.[61] In doing so I specifically resiled from making any distinct finding as to the employee responsible, on fairness grounds,[62] although I was prepared to conclude that Marksman had been the subject of an ‘act of a stranger’, should that become necessary.[63]
[61] Judgment 2, [26]. [27].
[62] Judgment 2, [23], [26].
[63] Judgment 1, [26]-[27], and see Peek J [222].
Another consideration in this context was that the employee concerned was held out by the Registrar as a fit and proper person to hold a firearms licence, as he held a firearms dealer’s assistant licence endorsed on it, and that unbeknown to Marksman, the employee was previously convicted of possessing a firearm without a licence, failing to keep a firearm and ammunition secure, the unlawful possession of a firearm and three counts of theft.[64] As I remarked ‘(J)ust how [he] managed to retain a firearms licence for so long afterwards is not at all clear’.[65]
[64] Judgement 1, [100], [104].
[65] Judgment 1, [104].
For the purposes of the substantive law, the test of criminal negligence is a high and exacting one: Andrews v DPP.[66] It is quite a different matter when it comes to the enforcement of non-compliance by licence holders in civil or administrative Tribunals or decision makers, as is the case here. The fact remains that the failure to account for missing firearms ‘was in a systems failure to detect this accumulated course of events in good time’.[67]
[66] [1937] AC 576, 583.
[67] Judgment 2, [25].
I hesitate however to attribute to Marksman ‘gross negligence’ on its part to detect and report the fact that firearms went missing, fundamentally because the circumstances and the time of taking, remains unknown.[68] As noted earlier, ‘the firearms were secreted off the premises without their knowledge’.[69] It is inherent in the very nature of taking these firearms by an insider covering his tracks, that substantial subterfuge and concealment were necessarily involved. Even so the transgressions in this respect are properly characterised as very serious indeed, especially as the number of firearms at stake were substantial, and as a considerable period of time is likely to have passed between taking the firearm(s) and the detection of their loss.
[68] Full Court Judgment, [328], Judgment 2, [53].
[69] Judgment 2, [25].
The fact also remains as the Committee observed, that there was a sustained failure to report suspected stolen or missing firearms, which meant that errant matters were not notified in a timely manner, which of course was a situation successfully remedied in the meantime by the implementation of an effective records system.[70]
[70] Bullet points 9 and 10 respectively.
Conditions of Licence
There was some debate by counsel as to the appropriateness of reinstating similar conditions as those imposed when the appeals were first allowed in the District Court, despite a concession that ‘cogent reasons’ were established. Marksman has in fact traded during the interim, holding a lesser number of firearms under each licence than the maximum permitted, even though those conditions lapsed after 12 months on 20 February 2016, and that it does not propose to increase those numbers, at least for the present.
Those conditions arose in the context of pending appeals by the parties agreeing to limit the number of firearms so as to secure Marksman’s continued trading, as an interim measure. There was no science or magic in the number of firearms nominated. It was simply a matter of a practical compromise and expediency that the stated numbers were selected. No present reason is advanced for re-imposing such conditions and no specific present need to do so is identified.

The issue of imposing conditions on firearms licences are quintessentially questions of judgment by those in a better position to assess such matters, than the court is in. As was observed in the first judgment:[71]
No doubt Parliament chose the Commissioner of Police as the Registrar of Firearms for sound reasons, such as to centralise the regulation and the control of firearms with the one repository and because of the experience and expertise SAPOL holds in firearms.
[71] Judgment 1, [38].
Accordingly it is not currently appropriate to impose any conditions on either firearms licences. This conclusion should not however be seen as giving encouragement for, nor discouragement from, the Registrar imposing conditions, if in the due course of administering the Firearms Act that becomes appropriate or necessary. The position remains as I expressed matters in the second judgment:[72]
Nor should anything the court has written be taken to control or circumscribe the powers the Registrar (or his Delegate) may continue to lawfully exercise under the Firearms Act and the Firearms Regulations, for the proper and effective administration thereof, or as otherwise curtailing the due prosecution of offences that may occur thereunder.
[72] At [62].
Conclusion
Having examined the decisions of the Firearms Review Committee and then re-examined those of the Registrar, and given them the weight to which each is entitled in the context of the structure of the review system in which it sits, the observations that were made by the Committee were clearly somewhat dated and overtaken by subsequent events. That view is reinforced by the proper concession of the Registrar that over the four years or so intervening there was substantial compliance by Marksman. This paints a very different picture than appeared at the time of cancellation in April 2013 and the time the Committee reviewed the matter shortly afterwards.
In the result the appeals by Marksman are allowed, the decisions of the Registrar of Firearms to cancel the respective licences are rescinded, and in their place the licences are reinstated. It is inappropriate to impose any conditions, for that matter is best left to the expert repository of the powers to impose conditions to deal with.
Remaining issues
It remains only for the parties to be heard as to the question of costs, bearing in mind s 42G of the District Court Act 1991 (SA) provides that ‘no order for costs is to be made unless the Court considers such an order to be necessary in the interests of justice’.[73] For this purpose it might be noted that in light of the course of events involving the last minute change of tack by the Registrar, the Full Court unanimously made the following order as to costs:
1. The Appellant (Registrar of Firearms) is to pay the costs and disbursements of the Respondent (Marksman Training Systems Pty Ltd) fixed in the total amount of $20,000 being in respect of:
(a)the costs of the appeal to the Full Court; and
(b)the costs of the appeal to the District Court, up to and including 22 July 2016 only.
The significance of 22 July 2016 lies in the fact that this was the date on which the Full Court handed down its judgment. This order therefore appears to subsume the orders made in the third judgment that Marksman should have costs in its favour of two days of the appeal in the District Court.[74]
[73] See the analysis of this provision in Judgment 3, [15]-[19].
[74] Judgment 3, [26], [32].
Orders
In the meantime the formal order of the court at this stage in the proceedings is that the appeals are allowed, the determinations of the Delegate of the Registrar of Firearms to cancel Marksman Training Systems Pty Ltd Dealer’s Licence No. 280511L and Range Licence No. 315699D are rescinded. In lieu thereof it is ordered that the licences be reinstated.