Shaxson v Queensland Police Service, Weapons Licensing Branch

[2014] QCAT 309

CITATION: Shaxson v Queensland Police Service, Weapons Licensing Branch  [2014] QCAT 309

PARTIES:	John James Shaxson (Applicant)
v
Queensland Police Service, Weapons Licensing Branch (Respondent)

APPLICATION NUMBER: GAR386-13

MATTER TYPE: General administrative review matters

HEARING DATE: 4 June 2014

HEARD AT: Brisbane

DECISION OF: Member Howard

DELIVERED ON: 30 June 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The decision to refuse Mr Shaxson’s application for a Category H weapons licence is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – WEAPONS LICENSING – where application for concealable weapons licence for primary purpose of euthanasing trapped feral dogs on 604 hectare rural property – where six dogs trapped in period of some 18 months – whether possession of the weapon is necessary

Queensland Civil & Administrative Tribunal Act 2009 (Qld), s 20
Weapons Act 1990 (Qld), s 3, s 4(c), s 10, s 11, s 13(5), s 15(3), s 40, s 42

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr John James Shaxson represented himself.

RESPONDENT: Senior Sergeant A T Cavanagh appeared on behalf of the Queensland Police Service, Weapons Licensing Branch.

REASONS FOR DECISION

1. Mr Shaxson currently holds weapons licences in Categories A, B and C. It is sufficient to say that this entitles him to possess and use rifles and shotguns for which he holds permits.  He applied for a Category H licence which would licence him for a concealable weapon, that is, a handgun.  His application for a concealable weapons licence was refused by an authorised officer in the Queensland Police Service, Weapons Licensing Branch (‘QPS’).

2. Mr Shaxson has applied to the Tribunal for a review of the decision to refuse to issue him a Category H licence.

Background to the Application

1. Mr Shaxson has some 22 years experience as a primary producer. Since at least 1997, he has held a property of some 604 hectares on which he currently grazes and breeds between 50 and 115 cattle, depending on conditions.

2. He says that although he has only 604 hectares, the property is in rough and hilly terrain.  He says that the property has significantly greater (he estimates roughly some 2000 hectares) of surface area.  It borders Durikai Forest on the west.  It includes Hunt’s Gulley and Thanes Creek.  There are six dams on the property.  One paddock of 1500 acres holds the cattle yards.  The rest comprises of terrain which is variously heavily timbered, hilly, creek flats and gullies, as well as a cleared area for wind rows and grazing.

3. It is uncontroversial that good animal husbandry requires control of feral animals and the ability to humanely euthanase them, as well as, injured stock.  Mr Shaxson has been trapping feral dogs on his property since, as best can be ascertained from his evidence, about December 2012.  He has been trapping feral pigs on his property since about 2000.  He primarily seeks the Category H licence because of the trapping of feral dogs.  He says he requires it for safety reasons.  He says that he traps dogs in inaccessible areas.  Most particularly, the areas are inaccessible by quadbike, which he uses on the property rather than horses.  He no longer rides or has horses.  He carries his gun on his person when on the quadbike.

4. Mr Shaxson says that the ground, in the areas where dogs are trapped, is uneven.  He has to take care where he walks so as not to walk in the dogs tracks.  He must take equipment with him when he goes in to check his traps, and reset them or relocate them, as necessary.  In particular he says he must carry a pick, spade, shovel, water, spare trap and chain (because if a fox has been trapped or has urinated in the trap the trap can not be used again without being cleaned) hammer, sand, lures and decoys, a firearm and a calico sheet.  He now also carries a hide which he uses to set out all of his equipment so that he doesn’t create scent on the ground.  He explains that he has to walk ‘quite a distance’ with the equipment.  He could no longer be considered a young man.

5. He takes a firearm with him because he does not want to walk into the scrub and walk back if he needs a firearm.  Because of the mutitude of items he must carry, he carries the rifle over his shoulder.  He considers this is a dangerous practice because the gun can be, and has been on occasions, caught on foliage.  On a couple of occasions, this has resulted in Mr Shaxson falling or losing his balance.  In cross-examination, it was suggested to him that there were other ways of carrying a gun.  He was not amenable to carrying it barrel down as he said this may result in dirt getting into the barrel when he bends down to do something.  He also considers it is a dangerous way to shoot dogs because a bullet may ricochet off the steel trap and because the dogs don’t stay still while they are being shot.

6. Mr Shaxson says with a handgun he could get a better aim from a distance of, for example, some two meters away.  The traps he uses are JAKE traps, which result in a dog being on a two metre chain connected to a steel anchor or a tree. He said considers it is best practice to euthanase dogs humanely in the trap at the earliest possible stage.

7. He traps feral pigs in mesh cages.  While using a rifle or shotgun, which he considers most undesirable, he says the barrel must be placed through the wire mesh to get a better shot.  Mr Shaxson says that if he used a handgun to shoot the pigs, that there would be less risk of the barrel being pushed about by a pig moving and frightened in the trap since the handgun can be held outside of the cage.

8. In cross-examination, Mr Shaxson eventually admitted that he had trapped only six dogs in total.  He was evasive about answering questions concerning how often he set traps, saying some weeks daily, but depending on when the dogs ‘are around’.  When asked if he could use a shorter barrelled rifle Mr Shaxson said it was more exacting to shoot with a handgun.  He intends to purchase a 22 magnum handgun if the licence is granted.

9. In relation to trapping of pigs he was equally reluctant to say how often he had trapped them or how many he had euthanased, indicating that sometimes six to eight were caught at a time, on another occasion only two.  He has shot them with whatever gun he had with him at the time. In responding to the suggestion that he did not need a handgun to shoot pigs, he replied with words to the effect, that dogs in inaccessible areas is his main reason for wanting a handgun.  He considered it was a requirement for the dogs, but for the pigs, it would be a bonus.

10. When it was suggested to him that in his 2005 and 2010 licence renewal applications, he did not mention a requirement to dispose of the trapped pigs as a reason for seeking a renewal of the licence, Mr Shaxson essentially said that he had not directed to his mind to it, he had simply answered the questions in the application.

11. The QPS filed various items of general information, including a document entitled ‘Standard Operating Procedure DOG1 Trapping of wild dogs using paddedjaw traps’ which appears to be a NSW Department of Primary Industries publication.  It suggests smaller calibre rifles and 12 gauge shotguns as appropiate to euthanase live trapped dogs whilst held in the the trap.  The traps referred to, unlike the traps Mr Shaxson uses do not, it seems from the description given, result in the dog being trapped on a two metre chain, but rather within rubber-covered jaws.

12. Another document entitled Model Practice for the Welfare of Animals Feral Livestck Animals published by the Standing Committee on Agriculture, Animal and Health Committee, SCARM Report 34, provides some potentially inconsistent information about humane destruction.  It variously describes shooting as the most humane method of killing and refers to use of a pistol (although it seems only for recumbent animals),[1] but later, sets out a schedule[2] for firearms apparently recommended for various types of feral animals (these appear to be mainly, if not all, rifles and shotguns), but dogs are not a category which is referred to.

    [1]Attachment to Exhibit 4, Model Practice for the Welfare of Animals Feral Livestock Animals published by the Standing Committee on Agriculture, Animal and Health Committee, SCARM Report 34 at page 6.

    [2]Ibid, at Appendix 2.

13. The documents contain general information only, not recommendations concerning Mr Shaxson’s particular property or circumstances. The authors of these publications were not made available for cross-examination. That said, I am entitled to consider them[3] and give them such weight as I consider appropaite in reaching my decision.

    [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 28(3)(b) and (c); Weapons Act 1990 s 15(3).

Review Process

1. The purpose of the Tribunal’s review is to produce the correct and preferable decision, following a fresh hearing of the matter on its merits.[4] The Tribunal considers the matter afresh, making its own decision, based on the evidence before it and according to law.  In essence, in its review jurisdiction, the Tribunal stands in the shoes of the decision-maker for the decision reviewed and makes its own decision.

   [4]QCAT Act s 20.

Relevant provisions of the Weapons Act

1. The Weapons Act 1990 (Qld) (‘Weapons Act’) sets out provisions in relation to weapons use and licences generally. A weapons licence is not a right: weapon use and possession are subordinate to the need for public and individual safety.[5]  The licensing and registration system requires that persons seeking a licence must demonstate a genuine reason for possessing a firearm.[6]

   [5]Weapons Act s 3.

   [6]Weapons Act s4(c), s 11 and s 42(3).

2. A person may only hold a licence is they are a fit and proper person to hold a licence[7] and the person demonstrates a genuine reason to possess the weapon in a particular category.[8] Section 11 sets out genuine reasons for possession of a weapon. These include, in s 11(c), ‘an occupational requirement including an occupational requirement for rural purposes’. Section 13(5) requires that if the reason is an occupational requirement, the applicant for the licence ‘must state why possession of a weapon is necessary in the conduct of the applicant’s business or employment’.

   [7]Weapons Act s 10(2)(e) and see also s 10B and s 10C.

   [8]Weapons Act s 10(2)(f), s 11. For categories of licences see especially s 12 and the Weapons Category Regulation 1997 (Qld).

3. An authorised officer (and on review, the Tribunal) is entitled to consider anything at the officer’s disposal in deciding the application: s 15(3).

4. Consistently with licensing requirements, under the legislative scheme, any application for a permit to possess a particular weapon must include a statement (for a category H weapon) about why the weapon is needed and why the need can not be met in another way.[9]  Then, in deciding an application for a permit to acquire a particular weapon, an authorised officer must consider whether the applicant has a need to possess the weapon, or whether the requirment for it can be adequately be met in another way or by using a weapon of another category.[10]

   [9]Weapons Act s 40 especially s 40(2).

   [10]Weapons Act s 42 especially s 42(3).

5. The word, ‘necessary’ as used in s 13(5), is not defined. Its meaning must properly be interpeted in the context of not only the provision in which it sits, but the Weapons Act and its purpose.[11]  ‘Necessary,’ according to common usage, connotes something which is required, rather than something which is merely convenient or a matter of preference.  In the context, it reasonably connotes that the requirement can not be met in some other way, and can not currently be appropiately met.

   [11]See White v Woolcock [2006] QCA 148, especially at paragraphs [30-32] as to interpretation of (other) provisions of the Weapons Act.

Discussion

1. The only issue is whether Mr Shaxson has a reason provided for in s 11 to possess the category of weapon for which he seeks a licence. It is uncontroversial that he meets the other requirements of s 10.

2. Mr Shaxson submits, in essence, that he has a genuine occupational requirement for rural purposes for a licence for a handgun.  He submits that a handgun would be more sensible.

3. Mr Shaxson engages in primary production.  Although his property is on a relatively small scale, I accept Mr Shaxson’s evidence about the rough terrain on his property and the inaccessibility of the areas in which he traps feral dogs.  I accept that he seeks the licence for the humane disposal of feral dogs, although he says he would also use it for more safely euthanasing feral pigs.  Further, I accept that humane disposal of pests, as well as injured stock, is appropriate.

4. I am also satisfied that it is somewhat cumbersome for him to carry all of the items he needs when checking his traps because it is inaccessible by quad-bike, given the nature of the terrain.  He considers he must carry his rifle on his body and carries it over his shoulder.  However, this method of transporting it has resulted, on occasion, in falls for Mr Shaxson.

5. As discussed earlier, Mr Shaxson evidence in cross-examination about the frequency of his laying of traps for feral dogs, when he stresses is the reason for applying for the licence is to deal with the dogs, was surprisingly vague.  It has resulted in the trapping of only six dogs in a period of some 18 months, despite comments that sometimes he lays traps daily, depending on when the dogs ‘are around’.

6. He has euthanased these dogs with weapons he is entitled to hold according to his existing licences and permits.  The information provided in the documents DOG1 from NSW Department of Primary Industries and SCARM Report 34 is general and untested.  Therefore, I am wary of placing undue weight on it.  However, the DOG1 suggests euthanasing with weapons of the categories currently held by Mr Shaxson is as an appropriate course and does not recommend use of a handgun.  However, Mr Shaxson uses different types of traps so it is of limited relevance.  That said, there is no evidence that the traps used by Mr Shaxson are preferable. The SCARM report although it appears to have some internal inconsistency does not deal with feral dogs particularly, and generally seems to support use of rifles and shotguns in management of feral animals.

7. That said, consistently, Mr Shaxson’s experience supports a finding, and I do so find, that his current licences and permitted weapons have been adequate to euthanase the feral dogs he has trapped on his property, notwithstanding that he may find it more convenient to carry and use a handgun if allowed.

8. The safety issues raised by Mr Shaxson relate to his current method of carrying a rifle, which has resulted in falls for him, and the potential for ricochet off the steel traps. The falls are the only difficulties actually encountered to which he refers in support of his application. The method of carrying the rifle could be addressed in ways, other than using a handgun, as is apparent from the evidence. He says that if he carried it barrel down that the barrel of the gun could come into contact with the dirt. However, it is reasonable to infer that he could ensure that this did not eventuate by taking care and time to move the gun to another position when he is bending down. Clearly, public and individual safety are important principles underlying the Weapons Act. However, Mr Shaxson’s difficulties in carrying the weapon for which he has a current licence, as they have been described in evidence in this proceeding, are not be adequate to establish that possession of a handgun is necessary for an occupational reason.

9. As concerns the potential for ricochet, there is clearly potential for ricochet of ammunition whether a rifle or a handgun is used.  This argument does not seem to me to assist Mr Shaxson’s application.

10. Although a handgun may be desirable from his perspective to euthanase feral dogs in particular, I am satisfied that the other weapons licences and weapons which he already holds and uses are appropriate to meet his occupational requirements. Therefore, I am not satisfied that the possession of a Category H weapon is necessary to meet his occupational requirements.

11. I make orders confirming the reviewable decision.