Woods v Commissioner of Police

[2021] TASSC 54

[2021] TASSC 54

COURT:                  SUPREME COURT OF TASMANIA

CITATION:             Woods v Commissioner of Police [2021] TASSC 54

PARTIES:  WOODS, Stuart Norton
  v
  COMMISSIONER OF POLICE

FILE NO:  1245/2020
DELIVERED ON:  9 November 2021
DELIVERED AT:  Hobart
HEARING DATE:  21 July 2021
JUDGMENT OF:  Geason J

CATCHWORDS:

Judicial Review – Judicial Review Act 2000 - Firearms Act 1996 – Decision - Classification of a firearm - Decision under an enactment - Spent decision - Application dismissed.

Judicial Review Act2000 (Tas), s 17.

Firearms Act, 1996 (Tas), s 158.

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480, applied.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, referred to.

Aust Dig Judicial Review [1008]

REPRESENTATION:

Counsel:
           Applicant:  James Crotty
           Respondent:  Paul Turner SC
Solicitors:
           Applicant:  Crotty Legal
           Respondent:  Office of the Solicitor-General

Judgment Number:  [2021] TASSC 54
Number of paragraphs:  17

Serial No 54/2021

File No 1245/2020

STUART NORTON WOODS v COMMISSIONER OF POLICE

REASONS FOR JUDGMENT  GEASON J

9 November 2021

Background

1. The applicant owned a .223 Calibre semi-automatic firearm, known as an "SP-20". An SP-20 firearm is ineligible for registration in this State. It was seized by police from his home in April 2015, along with other guns and he was charged with a number of breaches of the Firearms Act 1996 (the Act).

2. Following discussions between the applicant and prosecution, pleas of guilty were entered to some of those charges. Upon the applicant's conviction the prosecution sought forfeiture of the firearms to which the convictions related. In respect of the SP-20, an application was made by the applicant for an order directing the Commissioner of Police to send the gun to Victoria (where it could be lawfully possessed), so that it could be sold and the net proceeds remitted to him. That application was made pursuant to s 149 of the Act

3. At the hearing of the application the prosecution tendered a certificate which had been prepared for the purposes of s 158(ha) of the Act. It evidenced the categorisation of the SP-20 as firearm incapable of registration in this State. No other evidence was tendered by the Respondent as to that issue. That hearing is now complete and separately the subject of an appeal to the Supreme Court. This application relates just to the certificate, or more accurately, the decision said to be evidenced by it.

4. Section 158 of the Act is a facilitative provision intended to assist in proceedings for an offence. The section provides:

   "158   Evidence

   A certificate signed by the Commissioner or an approved person certifying any one or more of the following matters:

   (a)that a specified person was or was not, on a specified day or during a specified period, the holder of a licence, permit or minor's permit;

   (b)that a licence, permit or minor's permit was or was not, on a specified day or during a specified period, subject to specified conditions;

   (c)that a licence or permit was or was not, on a specified day or during a specified period, a licence relating to a specified category for a specified purpose;

   (d)that a specified person was or was not, on a specified day or during a specified period, subject to a firearms prohibition order;

   (e)that a specified firearm was registered or unregistered on a specified day or during a specified period;

   (f)that a specified person was a registrant on a specified day or during a specified period;

   (g)that a specified address was, on a specified day, the last address known to the Commissioner of a specified person;

   (h)that a shooting gallery, rifle club, pistol shooting club or range was or was not, on a specified day or during a specified period, approved;

   (ha)that a specified firearm was a specified category of firearm, whether registered or not, on a specified day or during a specified period;

   (i)that an approval for a shooting gallery, rifle club, pistol shooting club or range was, or was not, on a specified day or during a specified period, subject to specified conditions –

   is admissible in any proceedings for an offence under this Act and is evidence of those matters."

5. The applicant contends that the certificate identifies a different firearm from that which was seized in 2015, though one made by the same manufacturer. That was a matter about which he was entitled to call his own evidence in those proceedings, though he did not. By these proceedings he seeks judicial review of the "decision" evidenced by the certificate, that the firearm was a prohibited firearm under the Act. He asserts the firearm has been incorrectly identified, based upon a Firearms Categorisation Assessment Committee report relating to a AAA SAR rifle, a different model gun, and significantly different in appearance to the SP-20. He wants that decision set aside, and an order "the decision be made according to law".

Preliminary issue: is there a reviewable decision?

1. In order for s 17(1) of the Judicial Review Act to be engaged there must be a decision of an administrative character made under an enactment: see ss 4 and 17 Judicial Review Act.

2. The respondent contends that a decision of an administrative character was not made and that the Judicial Review Act is not engaged. Alternatively it is put that if there was a decision it is a spent decision, within the meaning of Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 252 CLR 480.

3. If the respondent is correct on either basis, the applicant's substantive grounds asserting error in the classification of the firearm, need not be considered. For that reason I will deal with these questions first.

Discussion

1. Fundamental to the application for judicial review is the proposition that the certificate constitutes a reviewable decision.

2. The decision is described by the applicant thus:

   "... the decision of Kerry Shepherd made as delegate for the Commissioner of Police pursuant to the provisions of s158(ha) of the Firearms Act 1996 on the 13^th May 2020 assessing my Australian Automatic Arms, SP Sporter, .223 calibre semi-automatic centre fire rifle, serial number SP 001190 as a prohibited firearm under Schedule 1(6) of the Act. The rifle is known by the manufacturer as an SP-20."

3. A decision is a determination which has a dispositive effect. That concept dealt with in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. At 337, Mason CJ said:

   "... a reviewable 'decision' is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration."

4. The certificate is evidence of an assessment undertaken by the author of the certificate, or someone on his or her behalf, and provides prima facie evidence of the matters asserted within it, specifically classification or categorisation of a firearm. Its purpose is limited to proving the matters to which it relates, in proceedings for an offence. Its contents are evidence of those matters, at least until the contrary is demonstrated by other evidence. It is only an evidentiary provision. It is not a source of any power to classify a firearm or to do anything else.

5. Ignoring the fact that its admissibility was open to challenge (since these were not proceedings "for an offence") neither the certificate, nor the fact it asserts, amounts to a decision; it is neither final nor determinative of the issue falling for determination.  At its highest it constitutes the expression of an opinion as to the classification of the weapon. The applicant was entitled to place evidence before the magistrate to show the classification evidenced by the certificate was wrong. Whether its contents are accurate, and the classification correct, is an issue for the decision of the court before which the certificate is tendered. The classification of the firearm and the production of the certificate which might follow for the evidentiary purposes contemplated by s 158 of the Act, is thus not dispositive of the question. As such the act of classification does not constitute a decision in the sense described in Bond (above); there has not been a decision under an enactment. 

6. If I am wrong about that, the applicant has another problem. The jurisdiction of the court to undertake a review is not engaged in circumstances where the challenged decision no longer has legal effect. In this case the legal effect of any "decision" made by the Commissioner to the effect that the firearm was a prohibited firearm is spent. It was spent upon the tender of the certificate to the court, or, at the latest, upon the decision of the court based upon its terms. That decision, being the decision of the magistrate, is reviewable under s 107 of the Justices Act 1959.

7. In Wingfoot Australia Ltd v Kocak (above), the court explained the notion of a spent decision, at [25]:

   "[25]    The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an 'apparent legal effect'. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable." [Footnote omitted.]

8. That is the position here. The imputed "decision" has no continuing legal effect. The orders sought in the appeal are therefore "inutile" and "unavailable".

9. I don't need to consider the grounds of appeal, or the application to amend those grounds. Amendment is futile. The Court's jurisdiction is not engaged. The application for judicial review is dismissed.