Savage v Registrar of Firearms - [2021] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
SAVAGE v REGISTRAR OF FIREARMS
[2021] SASC 144
Judgment of the Honourable Auxiliary Justice Dart
16 December 2021
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - NATURE OF RIGHT - SCOPE AND EFFECT OF APPEAL
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - FIREARMS PROHIBITION ORDERS
Appellant member of Hells Angels - delegate of Police Commissioner imposed a firearms prohibition order - Firearms Act 2015 - appellant appealed to the South Australian Civil and Administrative Tribunal (SACAT) - appeal dismissed - leave to appeal to Supreme Court - appropriate to grant leave - parties consent to appeal being allowed - error in the material before SACAT - this Court required to exercise the discretion afresh - need to come to the correct or preferable decision - appropriate to impose firearms prohibition order - subject to conditions - parties to be heard on conditions.
Held:
1. Appellant granted leave to appeal.
2. Firearms prohibition order imposed on the appellant.
3. Parties to be heard on conditions to be imposed.
Criminal Law Consolidation (Criminal Organisations) Regulations 2015 (SA); Firearms Act 2015 (SA) ss 3, 41, 44, 45, 47, 49 and 56(11); South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 34, and s 71(2); Spent Convictions Act 2009 (SA) ss 7 and 8, referred to.
House v The King (1936) 55 CLR 499; Jackson v Lepp Investments Pty Ltd [2016] SASC 62; Kentwell v The Queen (2014) 252 CLR 601; Pix v South Australian Housing Trust [2016] SASCFC 57; R v Cluse [2014] SASCFC 97; Strazdins v ANZ Banking Group Ltd [2017] SASC 3, considered.

SAVAGE v REGISTRAR OF FIREARMS
[2021] SASC 144
Appeal

These reasons deal with an appeal from a decision made at the South Australian Civil and Administrative Tribunal (“SACAT”). The subject matter of the appeal was a firearms prohibition order (“FPO”) made in relation to the appellant by a delegate of the Commissioner of Police. The decision of the delegate was affirmed after a hearing by the Tribunal.
Post-hearing developments
Shortly after the hearing in this matter was conducted, the parties contacted the Court and asked that no judgment be delivered. The Court heard no more from the parties for several months. Eventually the Court was informed that the parties had a joint position to put to the Court in respect of the conduct of the appeal.
The issue was that certain material, which was before the original decision-maker, was not put before SACAT on the hearing of the appeal. The particular evidence was a lengthy “Statement of Witness” prepared by Detective Senior Sergeant Brett Featherby (“Featherby”).[1] That document was dated 13 February 2015. It is a lengthy document about the nature and operations of the Hells Angels Motorcycle Club (“the Club”). The appellant is referred to in the document. It is the common submission of the parties that the failure to provide the statement to the Tribunal means that the decision on review by the Tribunal is infected by an error of the kind identified in House v The King.[2]
[1] FDN12, filed 28 January 2021.
[2] (1936) 55 CLR 499.
The parties agree that the Court should exercise the discretion afresh. Reference was made to Kentwell v The Queen.[3] In that case the High Court was dealing with an error made by the Court of Appeal in respect of a sentencing issue. In the majority judgment the High Court said:[4]
Spigelman CJ's analysis in Baxter should be accepted. When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration[5], the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing[6] and the factors that the Sentencing Act[7], and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not "warranted in law" unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. By way of example, s 44(1) of the Sentencing Act requires the court when sentencing an offender to imprisonment to first set the non-parole period and then set the balance of the term. Prior to 1 February 2003, a court was required to first set the term of the sentence and then specify the non‑parole period. A court which sentences an offender to imprisonment after 1 February 2003 by first setting the term of the sentence commits legal error. Without more, the error does not affect the exercise of the sentencer's discretion.
[3] (2014) 252 CLR 601.
[4]     Kentwell v The Queen (2014) 252 CLR 601 at [42].
[5]     House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ.
[6]     Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A.
[7]     Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A.
The parties accept that the Court must now perform the task conferred on the Tribunal. It is necessary to afford appropriate weight to the decision of the delegate. The Court must, in the exercise of the discretion, come to the correct or preferable decision.[8]
[8] South Australian Civil & Administrative Tribunal Act 2013, s 34.
Leave to appeal
It is first necessary to deal with the question of leave. An appeal from the Tribunal to the Supreme Court may only proceed with leave of the Court.[9] The criteria for a grant of leave was set out by Parker J in Jackson v Lepp Investments Pty Ltd where his Honour said: [10]
In deciding whether to grant permission to appeal from SACAT to this Court I consider that the ordinary principles applied when the Court decides whether or not to grant permission for a civil appeal should be followed. The over-riding principle is always the interests of justice.[11] The ordinary approach is that permission will only be granted where an appeal is reasonably arguable and the subject matter is of sufficient substance to justify consideration.[12] A failure of the first-instance decision maker to give adequate reasons will require the grant of permission.[13]
[9] South Australian Civil & Administrative Tribunal Act 2013, s 71(2).
[10] [2016] SASC 62 at [19].
[11] Glenauchen Pty Ltd v Circuit Finance Pty Ltd [2001] SASC 61 at [3].
[12] Mick Lucas Pty Ltd v Licensing Commissioner (1987) 45 SASR 312 at 313-314.
[13] Curnow v Police (2008) 100 SASR 290 at [11].
The position set out by Parker J in Jackson was referred to with approval by the Full Court in Pix v South Australian Housing Trust. [14] In that case, his Honour the Chief Justice said:[15]
The other grounds complain only of the weight given to the specified considerations. The President carefully weighed and considered the competing considerations. This Court cannot substitute its evaluation of the relevant considerations for that of the Tribunal unless, having regard to the Tribunal’s specialist knowledge and experience, this Court finds that the order ultimately made is manifestly unreasonable. An error of that kind is not arguable in this case.
[14] [2016] SASCFC 57.
[15] Pix v South Australian Housing Trust [2016] SASCFC 57 at [6].
In the circumstances of this matter, an error in the Tribunal being accepted, there was no opposition to the grant of leave. Even without the error before the Tribunal, it is probable that leave would have been granted. The subject matter of this appeal is of sufficient substance to justify an appeal to this Court. The appeal is reasonably arguable and the interests of justice favour the grant of leave.
The scheme of the Firearms Act 2015
To consider the reasoning and approach of the delegate of the Commissioner of Police it is necessary to have an understanding of the scheme of the Firearms Act 2015 (“the Act”).
The first matter to note is that the Act appoints the Commissioner of Police as the Registrar of Firearms. It also provides that the Registrar may delegate a power or function to a particular person.[16] The relevant decision in this matter was made by a delegate of the Registrar, namely a police inspector.
[16] Firearms Act 2015, s 49.
The principles and objects of the Act are set out in s 3:
3—Principles and objects of Act
(1)     The underlying principles of this Act are—
(a)     to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety; and
(b)     to improve public safety—
(i) by imposing strict controls on the possession, use, acquisition, supply and manufacture of firearms; and
(ii) by promoting the safe and responsible storage, transport and use (whether for recreational or other purposes) of firearms; and
(c)     to facilitate a nationally consistent approach to the control of firearms.
(2)     The objects of this Act are as follows:
(a)     to ensure that the possession and use of automatic and self-loading firearms is permitted only in strictly limited circumstances;
(b)     to establish an integrated licensing and registration scheme for all firearms;
(c)     to require each person who possesses or acquires a firearm or ammunition under the authority of a licence or permit to have established a genuine reason to possess or acquire the firearm or ammunition;
(d)     to provide strict requirements that must be satisfied in relation to firearms and transactions and activities involving firearms, including requirements to ensure the safe and secure storage and transport of firearms;
(e)     to reduce the number of firearms that are in unlawful possession in the community through a general amnesty;
(f)      to prevent or restrict persons and organisations from accessing, possessing or using firearms for criminal purposes;
(g)     to minimise the risk of persons becoming victims of crimes involving the use or threatened use of firearms;
(h)     to minimise the risk of persons causing injury or harm (including psychological harm) to themselves or others by the use or threatened use of firearms.
It can be seen in a broad sense that the principles and objects of the Act are to limit the possession of firearms and to ensure public safety. The decision to impose a firearms prohibition order was made by the delegate pursuant to the provisions of s 44 of the Act which provides:
44—Firearms prohibition order issued by Registrar
(1) The Registrar may issue a firearms prohibition order against a person if the Registrar is satisfied—
(a)     that—
(i) possession of a firearm by the person would be likely to result in undue danger to life or property; or
(ii) the person is not a fit and proper person to possess a firearm, and that it is in the public interest that a firearms prohibition order should apply to the person; or
(b)     that the person—
(i)      is a member of, or a participant in, a criminal organisation; or
(ii) has been a member of an organisation that, at the time the order is issued, is a criminal organisation; or
(iii) is the subject of a control order under the Serious and Organised Crime (Control) Act 2008.
(2) For the purposes of this Act, a firearms prohibition order applies to a person as soon as it is issued against the person, but the order only comes into force against the person when it is served personally on the person.
It is immediately apparent that the provisions of s 44(1)(a) and (b) apply to different circumstances and have different criteria. The same person may satisfy the criteria in both s 44(1)(a) and (b). The provision provides that a Registrar may issue a firearms prohibition order. The decision is discretionary, not mandatory. A decision has a number of consequences for a person who is the subject of a firearms prohibition order. They are set out in s 45, which is in the following terms:
45—Effect of firearms prohibition order
(1) While a firearms prohibition order is in force against a person, any licence or permit under this Act held by the person is suspended.
(2) A person against whom a firearms prohibition order is in force must not acquire, possess or use a firearm, a firearm part, a sound moderator or ammunition.
Maximum penalty:
(a)     in the case of a firearm—$75 000 or imprisonment for 15 years;
(b)     in the case of a firearm part, a sound moderator or ammunition—$35 000 or imprisonment for 7 years.
(3) If a firearms prohibition order comes into force against a person, the person must immediately surrender to the Registrar all firearms, firearm parts, sound moderators and ammunition owned by or in the possession of the person.
Maximum penalty:
(a)     in the case of a firearm—$50 000 or imprisonment for 10 years;
(b)     in the case of a firearm part, a sound moderator or ammunition—$20 000 or imprisonment for 4 years.
(4) A person against whom a firearms prohibition order is in force—
(a)     must not be present at—
(i) the grounds of a firearms club or paint-ball operator or the range of a commercial range operator; or
(ii) a shooting gallery; or
(iii) an arms fair; or
(iv) a place at which a person carries on the business of repairing, modifying or testing firearms, firearm parts or ammunition or buying, selling or hiring out, firearms, firearm parts or ammunition; or
(v) a place at which a person manufactures a firearm, firearm part or sound moderator; or
(vi) a place at which a person carries on the business of refurbishing firearms; or
(vii) any other place of a kind prescribed by the regulations; and
(b)     must not become, or remain, a member of a firearms club; and
(c)     must not be in the company of a person who has physical possession or control of a firearm.
Maximum penalty: $50 000 or imprisonment for 10 years.
(5) It is a defence to a charge of an offence under subsection (4)(c) to prove that the person did not know, and could not reasonably be expected to have known, that the other person had physical possession or control of a firearm.
(6) A person against whom a firearms prohibition order is in force must not be present or reside at premises on which there is a firearm, a firearm part, a sound moderator or ammunition.
Maximum penalty:
(a)     in the case of a firearm—$50 000 or imprisonment for 10 years;
(b)     in the case of a firearm part, a sound moderator or ammunition—$20 000 or imprisonment for 4 years.
(7) It is a defence to a charge of an offence under subsection (6) to prove that the person did not know, and could not reasonably be expected to have known, that the firearm, firearm part, sound moderator or ammunition was on the premises.
(8) A person against whom a firearms prohibition order is in force must inform each other person of or over the age of 18 years who resides or proposes to reside at the same premises as the person of the fact that a firearms prohibition order is in force against the person and ask each such person whether or not he or she has or proposes to have a firearm, a firearm part, a sound moderator or ammunition on the premises.
Maximum penalty: $20 000 or imprisonment for 4 years.
(9) A person must not supply a firearm, a firearm part, a sound moderator or ammunition to a person to whom a firearms prohibition order applies or permit such a person to gain possession of a firearm, a firearm part, a sound moderator or ammunition.
Maximum penalty:
(a)     in the case of a firearm—$75 000 or imprisonment for 15 years;
(b)     in the case of a firearm part, a sound moderator or ammunition—$35 000 or imprisonment for 7 years.
(10) A person who has physical possession or control of a firearm must not be in the company of a person to whom a firearms prohibition order applies.
Maximum penalty: $20 000 or imprisonment for 4 years.
(11) If a person to whom a firearms prohibition order applies resides at premises, a person who brings a firearm, a firearm part, a sound moderator or ammunition onto the premises or has possession of a firearm, a firearm part, a sound moderator or ammunition on the premises is guilty of an offence.
Maximum penalty:
(a)     in the case of a firearm—$50 000 or imprisonment for 10 years;
(b)     in the case of a firearm part, a sound moderator or ammunition—$20 000 or imprisonment for 4 years.
(12) It is a defence to a charge of an offence under subsection (9), (10) or (11) to prove that the person did not know, and could not reasonably be expected to have known, that a firearms prohibition order applies to the person.
(13) A police officer may require a person who the police officer suspects on reasonable grounds is a person against whom a firearms prohibition order is in force—
(a)     to state his or her full name, address and date of birth; and
(b)     to state the full names of the persons with whom he or she resides.
(14) A person is guilty of an offence if the person fails or refuses, without reasonable excuse, to comply with a requirement under subsection (13).
Maximum penalty: $10 000 or imprisonment for 2 years.
(15) A person against whom a firearms prohibition order is in force must, within 7 days, give the Registrar written notice, in a form approved by the Registrar, of a change of his or her address.
Maximum penalty: $10 000.
(16) For the purposes of this section—
(a)     if a person to whom a firearms prohibition order applies—
(i) is on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) when a firearm, a firearm part, a sound moderator or ammunition (a relevant item) is on or in, or in the immediate vicinity of, the premises, vehicle, vessel or aircraft; or
(ii) was on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) immediately before a relevant item was on or in, or in the immediate vicinity of, the premises, vehicle, vessel or aircraft, the person will be taken to possess the relevant item unless it is proved that the person did not know, and could not reasonably be expected to have known, that the relevant item was on or in, or in the immediate vicinity of, the premises, vehicle, vessel or aircraft; and
(b)     a person will be taken to acquire a firearm if—
(i) the person knowingly takes, or participates in, any step, or causes any step to be taken, in the process of acquisition of the firearm; or
(ii) the person knowingly provides or arranges finance for any step in that process; or
(iii) the person knowingly provides the premises in which any step in that process is taken, or allows any step in that process to be taken in premises of which the person is an owner, lessee or occupier or of which the person has care, control or management; and
(c)     a person will be taken to supply a firearm if—
(i) the person knowingly takes, or participates in, any step, or causes any step to be taken, in the process of supply of the firearm; or
(ii) the person knowingly provides or arranges finance for any step in that process; or
(iii) the person knowingly provides the premises in which any step in that process is taken, or allows any step in that process to be taken in premises of which the person is an owner, lessee or occupier or of which the person has care, control or management.
(17) The Registrar may exempt a person, unconditionally or subject to conditions, from a specified provision of this section and may vary or revoke an exemption by notice in writing served personally or by registered post on the holder of the exemption.

The decision of the delegate was made pursuant to s 44(1)(b)(i) of the Act. It is not in dispute that the appellant is and has been for a lengthy period a member of the Hells Angels Motorcycle Club. That club is a criminal organisation as declared pursuant to the Criminal Law Consolidation (Criminal Organisations) Regulations 2015. There is no dispute that s 44(1)(b)(i) applies to the appellant.
Right to review
A decision to issue an FPO is one of the decisions which may be the subject of an application for review by SACAT. A person aggrieved by a decision of the Registrar is permitted to apply to SACAT for a review of the decision.[17]
[17] Firearms Act 2015, s 47.
Decisions of this nature are dealt with by s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (“SACAT Act”) which provides as follows:
34—Decisions within review jurisdiction
(1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction.
(2) For the purposes of subsection (1) (and the other sections of this Division), and subject to the provisions of a relevant Act, a reviewable decision is—
(a)     a decision made by the Crown or an agency or instrumentality of the Crown; or
(b)     a decision made by a prescribed person or body; or
(c)     a prescribed decision or class of decision, but does not include a decision made by a person or body or a decision, or class of decision, excluded by the regulations.
(2a)    For the purposes of this Act—
(a)     unless paragraph (b) applies—the decision-maker for a reviewable decision is the person or body that made or is taken to have made the reviewable decision;
(b)     the rules may provide—
(i) that the decision-maker for a reviewable decision will, instead of being the person or body under paragraph (a), be a person or body that is assigned by the rules as being a suitable entity to act as the decision-maker for the purposes of this Act (or specified provisions of this Act); or
(ii) that a reference to the decision-maker for a reviewable decision in this Act (or specified provisions of this Act) will be taken to include a reference to a person or body that is designated by the rules as being a suitable entity to act jointly with the person or body under paragraph (a) for the purposes of this Act (or specified provisions of this Act), and rules made under this paragraph will then have effect in accordance with their terms.
(3) Subject to subsections (4), (5) and (6), the Tribunal will, in exercising its review jurisdiction, examine the decision of the decision-maker by way of rehearing.
(4) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision-maker.
(5)     A procedure on a rehearing will include—
(a)     an examination of the evidence or material before the decision-maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and
(b)     a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.
(6) In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act.
(7) Furthermore, the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction.
The process adopted by the delegate
On 3 September 2018 the delegate wrote to the appellant and advised him that she was inclined to impose a FPO against him.[18] The letter invited the appellant to make written submissions to her before any final decision was made. The basis on which the delegate was considering making the order was that Mr Savage was a member of a criminal organisation. The letter set out the history of the appellant’s association with the Hells Angels going back to 1998. It gave the appellant 28 days to respond, if he wished to do so.
[18] Appeal Book, p 78.
On 7 December 2018 the appellant’s solicitor wrote to the delegate.[19] The letter contained submissions as to why it was not necessary or appropriate to make the firearms prohibition order.
[19] Appeal Book, p 97.
On 8 January 2019 the delegate wrote to the solicitor and sought clarification of a number of points raised in the solicitor’s letter.[20] The information sought was provided by further letter dated 26 February 2019.[21] There was, thereafter, a further letter from the delegate to the solicitor dated 5 March 2019.[22] Again, clarification of some issues was sought. On 16 April 2019 there was a response to the delegate’s letter.[23]
[20] Appeal Book, p 107.
[21] Appeal Book, p 111.
[22] Appeal Book, p 119.
[23] Appeal Book, p 124.
The decision of the delegate was notified to the appellant by letter dated 23 May 2019.[24] Relevantly, the delegate stated that:[25]
I have also taken into consideration the need to protect the public and prevent criminal activity involving the use of firearms.
Further, I have taken into account the Government’s policy underlying Firearms Act 2015 to achieve a clear and sustainable balance between firearm control, which maximises public safety, and encourages the responsible possession and use of firearms for legitimate reasons.
In relation to organised crime, I have taken into account the Government’s policy to protect the community from the illegal activity engaged in by criminal organisations by restricting the ability of members of such organisations to obtain, use and deal in firearms.
I have taken into account the effects that a firearms prohibition order would have on you as an individual (as detailed in s 45 of the Firearms Act 2015).
…
I acknowledge that the effects of a firearms prohibition order are significant. I have nevertheless formed the view that the public interest in issuing a firearms prohibition order in this case outweighs those matters.
[24] Appeal Book, p 5.
[25] Appeal Book, pp 11-12.
As a result of the submissions made by the appellant’s solicitor, conditions were imposed. They excluded circumstances arising during the course of the appellant’s employment from the operation of the FPO. They are as follows:
·You must not be in the company of a person who has physical possession or control of a firearm, except when you are in the company for the purposes of your employment as a haulage sub-contractor;
·You must not be present at premises on which there is a firearm, a firearm part, a sound moderator, or ammunition, except when you are present at those premises for the purposes of your employment as a haulage sub-contractor.
The personal circumstances of the appellant
The written submissions made on behalf of the appellant set out the following personal circumstances.[26] Mr Savage is 57 years old. He has two children and two grandchildren. He has run his own tiptruck business for over 20 years. He lives with his partner in Modbury North. In ancillary reports contained in the material before the Tribunal he was described by police as “cooperative”, “pleasant and polite” and “compliant”.[27]
[26] FDN8, filed 12 October 2020.
[27] Tribunal s 35 Documents, pp 24, 40 and 44.
One of Mr Savage’s daughters, Amy, has acute Myeloid Leukaemia and a long-standing history of depression and anxiety. When Amy is too unwell, Mr Savage looks after her twin boys (his grandsons). Their father died when they were babies. As the Tribunal accepted, police attendances on the appellant (pursuant to s 56(11) of the Act) will cause Amy and her sons anxiety and distress when they are present at the appellant’s home.
Mr Savage previously held a firearms licence for nearly 40 years. He was previously involved in the lawful activity of target shooting at registered firearms clubs, but he has not held a firearms licence since 2016. Without a firearms licence he is not permitted to acquire or possess firearms or ammunition. There was before the Tribunal, and is before the Court, no evidence that he has ever been, or has ever been suspected of being, in possession of any firearms or ammunition since he ceased to hold a firearms licence.
Despite what membership of such a club might ordinarily lead one to expect, Mr Savage has a very short, and very minor, criminal history, involving two counts of urinating in a public place and three traffic offences (all on the same occasion). His last appearance before a court was in 1996, when no conviction was recorded. Each of his convictions (the last of which was recorded in 1986) is “spent”.[28]
[28] Spent Convictions Act 2009 (SA), ss 7 and 8.
Grounds of appeal
The appellant filed a Notice of Appeal and then an Amended Notice of Appeal. Each document complained about the Tribunal decision of 3 August 2020. The grounds of appeal are lengthy but, in summary, they were:
1.The Tribunal failed to give realistic consideration or explain the extent to which an FPO would further the public interest.
2.The Tribunal failed to give realistic consideration or explain how the statutory consequences of the FPO bore on the relevant risk to public safety.
3.The Tribunal failed adequately to articulate why the appellant’s membership of the organisation meant it was in the public interest to impose a FPO on him.
4.The Tribunal erred in treating the appellant’s mere membership of the Hells Angels as sufficient and misunderstood the nature of the discretion.
5.The Tribunal failed to give realistic consideration and weight to the impacts the statutory consequences of the imposition of an FPO would have on the rights, interests and liberties of the appellant.
6.The Tribunal erred in giving undue deference to the original decision-maker.
Consideration
The correct or preferable decision the Court is called on to make is that decision which, in all of the circumstances, best advances the policies and purposes of the Act.
Much of the further submissions of the parties turn on the use of the Featherby statement. The appellant accepts that the document was before the original decision-maker and must therefore be before the Court. He notes that the rules of evidence did not apply before the original decision-maker or before the Tribunal. He says that much of the Featherby statement is hearsay and also that it is now more than six years old, thus reducing its value as contemporary evidence.
The respondent takes a different view. She asks the Court to give considerable weight to the document. It is said that the material in the Featherby statement is relevant to the exercise of the discretion pursuant to s 44(1)(b) of the Act.
In particular, the respondent notes that in previous criminal proceedings the evidence of Featherby has been accepted. The Court was referred to R v Cluse, [29] a Full Court decision on appeal from a trial in the District Court where Featherby had given evidence. Justice Vanstone said:[30]
As already set out, Featherby gave evidence of the culture of the two clubs and their operations. This was not opinion evidence but was knowledge gleaned from long observation and study. In my view it was properly admitted.
[29] [2014] SASCFC 97.
[30] R v Cluse [2014] SASCFC 97 at [48].
Her Honour went on to note, however, that some of the Featherby evidence at trial was inadmissible hearsay and should have been excluded.
The Featherby statement provides information as to the operations of the Hells Angels and, in particular, serious criminal conduct engaged in by members of the organisation. It is not relied upon as evidence of any specific instance of unlawful activity or any specific allegation against the appellant. The respondent does not rely on the Featherby statement for any more than the proposition that the Hells Angels, as an organisation, engage in serious unlawful conduct. It is relied upon by the respondent to give colour to the discretion in s 44(1)(b) of the Act.
In order to arrive at the correct or preferrable decision on appeal, it is necessary to consider the nature of the discretion provided in s 44(1) of the Act. Sometimes when the jurisdictional fact, upon which the exercise of the discretion depends, is established, no more may be required.
In Strazdins v ANZ Banking Group Ltd[31] Hinton J was dealing with the exercise of discretion to award security for costs. His Honour noted:[32]
If the Court arrives at the conclusion that an order is necessary in the interests of justice, what discretion is there then to be exercised? All factors relevant to the question of the order being necessary in the interests of justice will have been considered. If the order is necessary, it is necessary. I cannot think of a circumstance where a court, having arrived at a conclusion that an order for security for costs is necessary in the interests of justice, would then decline to make the order. What additional factor not considered as part of determining whether the jurisdictional fact is established would subsequently be considered and, potentially, justify a conclusion that no order be made? Absent any additional factor, the answer arrived at in determining whether the jurisdictional fact was satisfied must be decisive of the exercise of the discretion.
[31] [2017] SASC 3.
[32] [2017] SASC 3 at [40].
The two matters in s 44(1)(a) of the Act appear to be jurisdictional facts of the type that Hinton J was referring to. The first is that the Registrar is satisfied that possession of a firearm by a person would likely result in undue danger to life or property. The second is that a person is not fit and proper to possess a firearm and that it is in the public interest for an order to apply. Once those jurisdiction facts are established, the exercise of the discretion would follow almost automatically.
The question is whether s 44(1)(b) of the Act is to the same effect. That turns on whether the mere fact that a person is a member of or participant in a criminal organisation, the allegation here, is sufficient to warrant the exercise of the discretion in favour of the making of an order.
This matter involves a difficult balancing act in respect of the rights and liabilities of citizens. On which side of the divide is it best to err? The side of individual liberty, or the side of protecting the public from the risk of crime and violence involving firearms? It is finely balanced. There is little to indicate that the appellant has himself been involved in criminal conduct. However, the Court must apply the law, as created by the Parliament.
One of the notable aspects of this matter is the fact that the appellant does not submit that he has any need or use for a firearm. The complaint is primarily about the consequences that come with the imposition of a firearms prohibition order. One of the main consequences is police access. The Act permits a police officer to enter premises to ensure compliance with the FPO.[33] It is apparent that that is a serious concern of the appellant.
[33] Section 56(11)(c).
The fact is that the appellant is a long-standing member of the Hells Angels and that organisation is known to be involved in criminal activity. There is no basis on which to assume that the operations of the Hells Angels are markedly different from that described in the Featherby statement.
The appeal grounds are not strictly relevant, given that the appeal is being allowed by consent. Nonetheless, they inform the position advanced by the appellant in respect of how the s 44(1)(b) discretion should be exercised. Most of the submissions put on behalf of the appellant point to the lack of evidence of any recent misconduct by the appellant, or that he poses any relevant risk to the public.
In exercising the discretion, this Court stands in the shoes of the Tribunal and must come to the correct or preferable decision, having given appropriate weight to the decision of the delegate.
The Court must proceed on the basis that each of s 41(1)(a)(i), (ii) and (b)(i) have separate work to do and are capable of applying to different factual situations. It is of course possible that an individual could satisfy all three criteria, but that is not the issue that is being dealt with in this matter.
The power to make an order given in s 44(1)(b)(i) applies simply to membership of a criminal organisation. The danger of venturing too far down the path of a detailed consideration of risk posed by the appellant is that the distinction between s 44(1)(a) and (b) is lost. Personal behaviour issues are predominantly relevant to the finding of the jurisdictional fact in s 44(1)(a).
The appellant says there must be a public interest sufficient to justify the imposition of an FPO which outweighs the restrictions on the freedoms and liberties ordinarily enjoyed by citizens. The question becomes whether membership of the Hells Angels alone is sufficient to justify the making of the FPO. That is, whether the imposition of an FPO against a member of a criminal organisation advances the principles and objects of the Act.
One of the principles of the Act is to improve public safety by limiting the access to firearms. One of the objects of the Act is to prevent persons and organisations from accessing, possessing, or using firearms for criminal purposes.[34]
[34] Section 3(2)(f).
Parliament intended s 44(1)(b) to be an alternate source of a discretion to impose an FPO. It is, however, the practical equivalent of the power in s 44(1)(a). Therefore, the establishment of the jurisdictional fact will usually be sufficient to justify the exercise of the discretion to make the order. That cannot be an absolute position, but it will be the usual position.
Having regard to the principles and objects of the Act and the finding of the delegate that the public interest required the making of the FPO, I would exercise my discretion in the same way as the delegate. I confirm the imposition of the FPO.
It is clear that the Act has a wide reach. It is also clear that there is a significant risk of unintended consequences. Once those consequences are identified, they can be dealt with by the making of appropriate conditions. One matter pointed to by the appellant was that, strictly applied, the FPO means he cannot participate in Anzac Day celebrations. The Act is not intended to interfere with that type of activity. I am sympathetic to allowing a condition that permits the appellant to participate in Anzac Day activities.
I will hear the parties as to the form of the orders, any conditions that should be imposed, and any consequential matters.