Registrar of Firearms v Evangelista No. Scciv-04-206

REGISTRAR OF FIREARMS v EVANGELISTA
[2004] SASC 126
Magistrates Appeal

DUGGAN J. The Firearms Act 1977 (the Act) controls the possession, use and sale of firearms. Central to this control is a licensing system which requires persons in possession of firearms to hold a firearms licence. It is an offence to possess a firearm without holding a firearms licence under the Act (s 11(1)). It is also an offence to possess or use a firearm for a purpose that is not authorised by the firearms licence (s 11(2)). The licensing system is under the administrative control of the Registrar of Firearms (the Registrar) who is the Commissioner of Police. A Firearms Consultative Committee (the committee) is also established under the Act.
The Act defines various classes of firearms and there is provision for licences to be endorsed so as to authorise possession of a particular class or classes of firearms and the purpose or purposes for which the firearm or firearms can be used.
In the present case, the respondent was the holder of a licence authorising him to possess a Class H firearm which is defined in the Act as a handgun. A licence of this type must be renewed annually.
On the last occasion on which the respondent applied for a renewal of his licence, the Registrar decided that the application should be refused as he was of the view that it would not be in the public interest to grant it. He then referred this recommendation to the committee which agreed with it and the application for renewal was refused accordingly.
Section 21D of the Act provides for an appeal against certain decisions of the Registrar. The appeal is to a magistrate sitting in chambers. A decision by the Registrar to vary a firearms licence by restricting the classes of firearms to which the licence relates or to vary or revoke a purpose endorsed on the licence is appealable. I respectfully agree with the view expressed in Johnson v Registrar of Firearms (2001) 79 SASR 353 and Registrar of Firearms v Gitsham (2002) 84 SASR 72 that the appeal to the magistrate is an appeal de novo. I also agree that an appeal is available from the decision of the magistrate to this court pursuant to s 40(1) of the Magistrates Court Act 1991.
The respondent appealed against the Registrar’s decision and the appeal was heard by a magistrate in chambers. The appeal was allowed and the magistrate ordered that the application for renewal be granted. The Registrar now appeals against that decision.
Before dealing with the arguments on appeal it is necessary to refer to some further licensing provisions in the extensive regulations made under the Act. Regulation 12 deals with the purposes of which any firearm may be used. In so far as it is relevant reg 12(1) requires a firearms licence to be endorsed by the Registrar with the purpose or purposes for which the firearm or firearms of the class or classes authorised by the licence may be used by the holder of the licence. Regulation 12(2) provides:
“Subject to subregulation (3), one or more of the following purposes may be endorsed on a firearms licence:
(a)     use as a member of a shooting club – 1;
(b)     target shooting – 2;
(c)     hunting – 3;
(d)     paint-ball shooting –4;
(e)use in relation to carrying on the business of primary production or in the course of employment by a person who carries on such a business – 5;
(f)use in the course of carrying on the business of guarding property or use in guarding property in the course of employment by a person who carries on that business – 6;
(g)     collecting and displaying firearms;
(h)     such other purpose as is approved by the Registrar – 7.”
The numbers appearing at the end of each paragraph are used on the licence to identify the purposes listed in the regulation.
The purposes for which a handgun may be used are more restricted. Regulation 19(7) provides as follows:
“It is a condition of a firearms licence that authorises the possession and use of a class H firearm that the holder of the licence may only use a firearm of that class –
(a)     if the holder is an active member of a shooting club; or
(ab)in relation to carrying on the business of primary production or in the course of employment by a person who carries on such a business if, in either case, the property on which the primary production business is carried on is at least 15000 hectares in area or is a property to which subregulation (7a) applies; or
(b)in the course of carrying on the business of guarding property or in guarding property in the course of employment by a person who carries on that business; or
(c)     for the purpose of collecting and displaying firearms; or
(d)     for such other purpose as is approved by the Registrar.”
It is not in dispute that the categories of use in reg 19(7)(a) to (c) inclusive are irrelevant to the circumstances of the respondent. The category under which the respondent’s more recent licences have been issued is that set out in reg 19(7)(d), namely, “for such other purpose as is approved by the Registrar”. The purpose approved in the case of the respondent was described as “business security”.
The Registrar is given power to cancel or vary a licence. Section 20(1a) provides:
“Where the Registrar is satisfied that –
(a)it would be contrary to the public interest to permit the holder of a firearms licence to continue to possess and use firearms; or
(b)the holder of a firearm licence can no longer use any firearm for one or more of the purposes endorsed on his or her licence; or
(c)a class of firearms to which the licence applies can no longer be used by the holder of the licence in accordance with the conditions of the licence,
the Registrar may with the agreement of the consultative committee and after giving the holder of the licence at least 14 days written notice –
(d) where paragraph (a) applies – cancel the licence; or
(e)where paragraph (b) applies – vary the licence by removing the relevant purposes from the licence; or
(f)where paragraph (c) applies – vary the licence so that it no longer authorises the possession and use of that class of firearms.”
By reason of circumstances referred to subsequently in these reasons, the respondent based his application for a licence to possess and use a handgun on security considerations related to the conduct of his business.
Mr Grant, for the Registrar, has raised two issues which should be dealt with at the outset. The first issue is a challenge to the jurisdiction of the magistrate to make the order which he did for the renewal of the licence. Mr Grant submitted that, although the hearing before the magistrate was an appeal de novo, he was not permitted to make a decision which would have the effect of approving a purpose for possessing and using a firearm which had not been approved by the Registrar. He pointed out that in regs 12(2) and 19(7) the regulations prescribe a list of purposes for which a firearms licence can be issued and in both regulations there is a further category of “such other purpose as is approved by the Registrar”. According to the argument, only the Registrar can authorise a purpose in addition to those specified; the magistrate cannot do so on appeal.
In my view, this argument overlooks the nature of the Registrar’s decision which was the subject of the appeal before the magistrate. The application by the respondent was for the renewal of an existing licence which permitted the respondent to possess and use an handgun. The category endorsed on the licence was H7 signifying that the licence permitted the use of a handgun and that the purpose had been approved by the Registrar. This was not an application by the respondent which involved the exercise of the Registrar’s discretion to approve a purpose under reg 19(7)(d) for the first time; it was an application to renew a licence which had been issued previously for a purpose approved by the Registrar. The issue was whether the Registrar should vary the licence pursuant to s 20(1a) of the Act so as to remove the authorisation to possess and use a handgun. A variation of this nature requires the agreement of the committee and this is the procedure which was followed. The appeal to the magistrate pursuant to s 21D was against the decision to vary the licence. So understood, the magistrate did not approve a purpose which had not been previously approved by the Registrar; he set aside the decision which the Registrar made not to renew the licence permitting possession and use of a handgun. The magistrate had jurisdiction to hear the appeal.
The second argument put forward by Mr Grant was that the regulations did not allow the Registrar to approve the possession of a handgun for the purpose advanced by the respondent. According to the argument, reg 19(7)(b) is exhaustive as to the circumstances in which a handgun can be used for guarding property. The use of a handgun for such a purpose was impliedly restricted to those involved in the business of protecting property.
I do not agree with this submission. The inclusion of a particular category pertaining to security of property in the specified categories does not support the inference that no other purpose associated with the security of property can be approved by the Registrar for licensing purposes.
The final question is whether the magistrate was correct in setting aside the order of the Registrar and granting the application to renew the respondent’s licence. The respondent gave evidence before the magistrate. He said that he was born in Italy and that he came to Australia when he was 18 years of age. He has been married twice and has six children.
The respondent owns a building company and he is a licensed real estate agent. His other business interests include the operation of Silks Hotel in Grenfell Street. He has held a licence authorising him to possess a handgun since 1964. He has also held licences for other types of firearms. He gave evidence that he carries the handgun under his trouser belt and underneath his shirt. He said he has used it for protection purposes on three occasions. On two separate occasions he found an intruder in a house situated on his hobby farm. On another occasion he apprehended some youths who broke into his car. On each occasion he drew the loaded gun and told the intruders to remain and wait for the police. He told the youths “I’ve got a gun and you can be shot”. There was no suggestion that the intruders were armed on any of these occasions.
However that may be, the respondent said that the principal use of the gun was for protection in relation to the conduct of an olive oil business which he owns. He said that the business is conducted at Greenfields which is approximately four kilometres from Salisbury. An olive oil processing plant is located there and the respondent buys olives and, sometimes oil, from growers. The growers like to be paid in cash and so it is necessary for the respondent to withdraw cash from the bank for this purpose. The amounts in his possession vary between $500 and $5,000. If he is unable to bank the cash left over at the end of the day he takes it home and places it in a safe. He said that he operates the business with his son and that during the olive picking season he commences work at about 6.00 am and could go through to 10.00 or 10.30 pm.
It is not in dispute that the respondent is a person of good character. He also gave evidence of his experience in the use of firearms.
The magistrate’s reasons for allowing the appeal to him are set out in the following extract from his judgment:
“This man, in summary, is a family man, a man who has been regarded by the law of this State as fit to hold a land agent’s licence, a general building licence and also a hotel licence. In addition he has held three separate firearms licences in respect of three different sorts of firearms. He has an ongoing experience with the handling and safety of firearms. He knows how – experience tell us this – to defuse a dangerous situation rather than to exaggerate or exacerbate it. The Greenfields area is, as Evangelista has let it be known, a notorious area for drug-affected persons who may seek to fuel their drug habit further by the obtaining of cash illegally.
Nothing in the cross-examination of Evangelista by Ms Lucas on behalf of the Registrar of Firearms leads me to believe that this man should have his firearms licence refused. I find that in all the circumstances there is nothing to suggest that he is not a fit and proper person. More importantly, I do not think that the public interest is being served by the continual refusal. The particulars of the criteria for refusal contained in Exhibit R1 are simply unhelpful in this case. I should stress that Evangelista’s case is highly unusual if not unique. Cash is still traditionally being used for the majority of transactions that he undertakes at the Greenfields olive oil extraction plant. Neither cheques nor credit cards are used to any extent to change the situation. The fact that insurance policies now exist to protect cash in transit is neither here nor there. It is a matter of prudence as to whether a person wishes to avail him or herself of that insurance. It is not for any other authorities to dictate it in the absence of making it compulsory at law. I have already dealt with the security companies aspect and they do not fit the bill as far as the hours of this business is concerned.
I am satisfied that in the use of firearms this man is well trained and he does have a good knowledge of the handgun that he has used. He has never resorted to the use of firearms as a means of aggression but rather simply as a means of defence. He has never discharged such a firearm in that context.
Of course business operators have a responsibility under Occupational Health, Safety and Welfare legislation, but again to suggest that this is a basis for refusing this man’s renewal of licence is somewhat patronising. Evangelista struck me as a man who is well aware of the severe legal implications associated with the action of being prepared to use a firearm for the protection of cash. He has never betrayed his obvious sense of responsibility in that regard. As for the view of law enforcement agencies throughout the world promoting compliance with a criminal in a robber situation, then that obviously is a matter of consideration for the person in extremis on occasions and within the circumstances that prevail at the time. Again, that is not a basis for refusing the renewal of the licence.
In all the circumstances I consider that the public interest is not served by continuing to refuse the renewal of the licence No. 155202X.
Pursuant to the provisions of S.21D(3) of the Act I substitute my decision for the decision that should have been made in the first instance, i.e. that the appeal be allowed and that the licence renewal in favour of Evangelista be granted.”
The clear purpose of the Act is to provide for strict control over the use of firearms in the community. This is apparent from the provisions of the Act and the extracts from the second reading speeches set out in Johnson v Registrar of Firearms (2001) 79 SASR 353 at 357. These controls were tightened further as a result of amendments made to the Act in 1996.
The legislative scheme provides for particularly restrictive measures in relation to handguns. This is reflected in the limited number of circumstances which will justify the issue of licences for firearms in this category. The categories of sporting activity and primary production are strictly confined by reg 19(7). I have already commented on the specific exemption in relation to guarding property. Apart from the collectors’ category, the only other qualifying purposes are those approved by the Registrar. Obviously, the exercise of the Registrar’s duty in this regard must be in accordance with the policies evident from a reading of the Act and the regulations.
In my view, the magistrate erred by overrating the security needs arising from the respondent’s business and by giving insufficient weight to the important policy considerations behind the legislation. I do not think it was correct to describe the respondent’s situation as “highly unusual if not unique”. It is a matter of common knowledge that large amounts of money are carried around in the community and kept on business premises. The maximum amount of $5,000 carried on some occasions in the present case cannot be regarded as highly unusual. Furthermore, it is unclear from the respondent’s evidence why he could not make other arrangements, such as more frequent banking, which would have reduced the need to carry these sums of money.
Nor can I agree with the magistrate’s assessment of the Registrar’s criteria for refusal, as set out in his recommendation to the committee, as unhelpful. The Registrar expressed the view that the protection of cash in the circumstances was insufficient justification for the use of a handgun. He also sais that other options were available to the respondent. He summarised other relevant issues in the following extract from his recommendation:
“. Cash has traditionally been used for the majority of transactions, however that situation has now changed. Either cheque or credit cards are now used for many transactions, reducing the percentage of cash collected in total takings.
.Insurance policies now exist to protect cash in transit.
.Security Companies have trained staff and professionally organised operations to deal with large amounts of cash requiring transfer to Banking Institutions.
.Security Companies have a legislative requirement to train staff in the use of firearms on an annual basis. They also implement other protection methods and only resort to the use of firearms in extreme life threatening situations. Business operators with handguns for the protection of cash have no legal requirement for training. As such, many Business operators may not have received recent, if any, training in the use of a handgun and many not have actually fired the gun in many years.
.Individual business operators have a responsibility to themselves and their staff to have proper Occupational Health Safety and Welfare procedures in place which would result in regular banking of small amounts of cash throughout the day.
.Individuals should not be prepared to use a firearm for the protection of cash considering the severe legal implications associated with such action.
.Law Enforcement Agencies throughout the World promote compliance with a criminal in a robbery situation rather than non-compliance that could have devastating results for the victim or innocent by-standers. It is therefore not in the Public Interest to have an untrained individual brandishing a firearm in Public during a stressful robbery, in an attempt to protect cash.”
In my view these were all relevant considerations to take into account in order to implement the policy of the legislation.
The magistrate appeared to consider the respondent’s use of the firearm in the past as demonstrating appropriate knowledge and judgment. However, I think the incidents described by the respondent give rise to some disquiet. There is no suggestion that the respondent acted illegally on these occasions. Nevertheless, he produced a loaded firearm on each occasion and his actions appear to have been unrelated to the purpose for which he requires the handgun.
In my view, the considerations raised by the Registrar in his recommendation that the H7 endorsement be removed from the respondent’s licence were relevant and appropriate to the intent of the legislation. There was no ground for reaching a different conclusion on the appeal to the magistrate.
The appeal to this court will be allowed and the orders of the magistrate set aside. In lieu thereof, there will be an order that the appeal to the magistrate will be dismissed.

[2004] SASC 126

6 May 2004