Zammit v Registrar of Firearms - [2010] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
ZAMMIT v REGISTRAR OF FIREARMS
[2010] SADC 100
Judgment of His Honour Judge Tilmouth
30 July 2010
FIRE, EXPLOSIVES AND FIREARMS - FIREARMS - LICENCES AND RELATED MATTERS - LICENCES - ISSUE OF AND GENERALLY
Appeal against decision of the Registrar of Firearms cancelling the appellant's firearms licence - Registrar found appellant not to be a fit and proper person to hold a firearms licence - consideration of legislative scheme of Firearms Act 1977 (SA) - consideration of appellant's antecedents - convictions for firearms offences.
Held 1: The provision of s 5(1), (12) & (13) of the Firearms Act must be read together so that s 5(13) qualifies s 5(11) and (12).
Held 2: It was open to the delegate to cancel the licence on account of the offences, and because the appellant was not a fit and proper person to hold a firearms licence or both.
Firearms Act 1977 (SA) s 5, s 6(2), s 20(1), s 26(C), s 26(C)2, s 26(4), s 34A, s 34(3); Firearms Regulations 2008 (SA) Regulation 38(1); s 21(1); Summary Offences Act 1953 (SA) 15(1)(b); Controlled Substances Act 1984 (SA) s 32(i)(a); Controlled Substances (General) Regulations 2000 s 32(5)B(ii); Firearms (Firearms Prohibition Orders) Amendment Act No 15 of 2008; Registrar of Firearms v Gitsham (2002) 84 SASR 72; Golding v Police [2007] SASC 159; Jaworski v Police [2007] SASC 159; R v Flitter [2010] 1 Cr App R (S) 85, referred to.
Davies v Registrar of Firearms [2005] SASC 149; Police v Losapio [2007] SASC 112, applied.
Johnson v Registrar of Firearms (2001) 79 SASR 353, considered.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
Held: The failure to have regard to material suggesting the appellant may have a reputation of honesty and integrity to hold a licence, furnished cogent reason for setting aside the decision to cancel the firearms licence.
District Court Act 1991 (SA) s 26B(8)(b), s 26C(1), s 42E(3), s 42F, s 42F(c), s 42H(2); Sinclair v Maryborough Mining Warden (1975) 132 CLR 258; Craig v State of South Australia (1995) 184 CLR 163; Kovadeu v Minister for Immigration and Multicultural Affairs (1990) FCR 323, referred to.
Registrar of the Veterinary Surgeons Board (SA) v Mooney (2) [2009] SADC 69, applied.

ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - REVIEW OF PARTICULAR DECISIONS
Held: The failure to mention submissions by the appellant as to his continuing fitness to hold a firearms licence, amounted to a failure to give adequate reasons in the circumstances.
Firearms Act 1977 (SA) s 26C(2); Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, referred to.
International Finance Aust Co Ltd v New South Wales Crime Commission (2008) 232 FLR 37; [2008] NSWCA 291, applied.

WORDS AND PHRASES CONSIDERED/DEFINED
"meaning of "fit and proper person" and "reputation, honesty and ingegrity - considered"

ZAMMIT v REGISTRAR OF FIREARMS
[2010] SADC 100
A Firearms Act appeal

This appeal from a decision of the Firearms Review Committee, one of the first of its type, raises several points of statutory interpretation touching due process in the administrative cancellation of firearms licences. The appellant Mr Zammit had his firearms licence cancelled and he seeks its reinstatement.
He pleaded guilty in the Holden Hill Magistrates Court on 19 August 2008 to failing to keep Class A firearms secured, possessing two silencers, possessing a prohibited weapon (a flick knife) and producing cannabis. He was convicted and fined a total of $575. Based on these convictions a Delegate of the Registrar of Firearms cancelled his firearms licence on 7 January 2009. Mr Zammit appealed against that decision to the Firearms Review Committee which affirmed the cancellation on 10 November 2009.
It is from this latter decision that he appeals to this court, claiming in sum that factual mistakes were made in the process of cancellation, material information was not taken into account and too much reliance was placed on the offences themselves, and too little on the wider circumstances.
Background facts
The factual setting is compounded by intervening amendments to the legislative and regulatory context, effective from 27 November 2008: Firearms (Firearms Prohibition Order) Amendment Act No. 15 of 2008. For the sake of clarity, the legislation applicable beforehand is referred to as the Firearms Act 1977 and that afterwards as simply the Firearms Act.[1] Whereas the applicable regulations were the Firearms Regulations 1993 and the Firearms Regulations 2008, respectively.
[1] Both are cited as the Firearms Act 1977 (SA)
The facts giving rise to the above charges commenced on the morning of Thursday 6 September 2007, when Police Officers searched the home then occupied by Mr Zammit, at Windsor Gardens. They found four Class A firearms in an unlocked wooden wardrobe in his bedroom. These comprised a Lithgow .303 calibre bolt action rifle, a Winchester 30/30 lever action rifle, a Harrington and Richardson 12 gauge single barrel shotgun, and a Sportco .22 calibre bolt action rifle.
A condition of every firearms licence requires the holder to secure firearms in the manner required by Part 6 of the Firearms Regulations 1993 and Part 6 of the Firearms Regulations 2008. Regulation 29(1)(c) (now regulation 38(1)(c)) obliges any person in possession of a firearm to keep it secured under lock and key. The failure to so comply constituted an offence punishable in the case of class A firearms, to imprisonment for one year or a fine of $5,000: s 21(1) Firearms Act 1977. Strictly speaking, Mr Zammit could have been charged separately with four such offences. He was however charged with the failure to secure all four on one single count. A second count charged a breach of the regulations on the same account.
Two silencers were found in a sports bag within a steel trunk under a bed, in breach of s 29A(1) of the Firearms Act 1977. This section contained an outright prohibition on the possession of silencers. It carried a maximum penalty of $10,000, or imprisonment for two years. Once again Mr Zammit could have been charged on two counts rather than just one. He was further charged with the possession of a flick knife, found in a bedroom chest of drawers, being a prohibited weapon contrary to s 15(1)(b) of the Summary Offences Act 1953 (SA). This offence attracts a maximum penalty of $2,500, or six months imprisonment.
Finally, the police located four cannabis plants in a room off the main garage at the rear of the property, growing under hydroponic conditions, contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA). The court has not been told what the useable weight was, but it could not have been that much. At the time this offence attracted a maximum penalty of $2000 or imprisonment for two years or both, on the assumption that less than one fifth of the prescribed amount of 0.3kg was involved: s 32(5)B(a)(iii) and schedule 3 to the Controlled Substances (General) Regulations 2000.
Those present that day included police officers Gooley, Hall and Hatton. When spoken to by them, Mr Zammit made forthright admissions. He accepted the breach of his firearms licence by putting the guns in the wardrobe where they were stored for upwards of 10 years. He told them the flick knife was gifted to him and was “loose as anything”. As to the silencers, he said these too were a gift, made when he was 14 years old, and that he had never used them. In later material submitted in the firearms cancellation process, he pointed out that they were rusty and claimed they were unusable.
Proceedings in the Magistrates Court
There was initially a dearth of material as to what precisely occurred in the Holden Hill Magistrates Court when the charges were heard in August 2008. No reasons were recorded, although the certificate of record was produced. It appears tolerably clear that he entered early pleas of guilty and a plea in mitigation was made on the basis of what Mr Zammit told the police, which the court appears to have accepted. This is reflected by a conviction and fine of $175 for producing the cannabis, despite a previous offence when he was fined without conviction. This disposition suggests the drug offence was considered to be a relatively minor one and that the cannabis was confined to personal use.
On the counts related to the failure to adequately store the class “A” weapons and the possession of the two silencers, he was convicted and fined $300. Orders for the forfeiture of the silencers, the cannabis and associated equipment, and the flick knife were made, but not with respect to the firearms. He was further convicted and fined $100 for the possession of the prohibited weapon.
It was maintained by his counsel in this court that the Magistrate directed the firearms be returned to him. There is no record of a formal kind to support this. This was said to have been on the recommendation of Mr Gooley, who communicated this attitude to the police prosecutor. There is some support for the contention in the fact that no order for the forfeiture of the firearms was made, whereas they were for the other seized items.
In a written submission filed on behalf of the respondent on July 14 2010, it is conceded that Gooley spoke with someone at the Holden Hill Police Prosecutions the very day of the sentencing hearing and indicated he was “happy for firearm to be returned if accused pleads guilty.” As a consequence the police prosecutor did not apply for their forfeiture, even though she ordinarily would have done. In the same written submission the respondent explains Gooley’s change in attitude, as attributable to “information collected (as presented in these reports) and discussions with his colleagues”, following the events of 6 September 2007. This is somewhat perplexing as “these reports” contain no additional information from that he would have gathered on the day. They were in the form of three memoranda, to be referred to shortly.
Under s 34A of both Acts, a sentencing court is and was vested with the power exercised in the sentencing process, to cancel or suspend firearms licences, when a firearm “was involved in the commission of the offence”: s 34A(1)(c) & (d). This was contingent on conviction for any offence under the Firearms Act 1977, and on the less demanding finding of guilt under the Firearms Act. In addition the power of cancellation or suspension was extended by the latter to any “proceedings before a court” involving the possession of firearms, where the court forms the view that a party thereto is “not a fit and proper person to have possession of the firearm”: s 34A(2)(c) & (d). There is and was no affirmative power available to a sentencing court to order the return of the firearms to an offender under either.
That contingency seems rather to be dealt with administratively under section 34 of both. The firearms were seized in this instance on 6 September 2007 and retained by the police since. The mechanism for forfeiture, aside from curial order, is that where firearms are seized the Registrar may institute proceedings for forfeiture before a court of summary jurisdiction. Pursuant to s 34(3) of either Act, such firearms as are seized, can be held until those proceedings are determined, or until the expiration of 12 months after seizure. No such proceedings were taken in this instance. Insofar as the Magistrates Court purported to make an order for the return of the weapons, a situation that is by no means established, it must follow that such an order would have been beyond power and hence nugatory. Accordingly, it appears the lawful authority to retain the firearms expired on 7 September 2008. Insofar as the appellant seeks an order in this appeal returning the firearms to him, that would be to step outside the ambit of the supervisory jurisdiction possessed by the court. His remedy (if any) on that front lies in detinue.
Recommendations for cancellation
In three successive memoranda of 28 October 2008, 5 December 2008 and 1 September 2009, officers Hall, Gooley and Hatten drew attention to these convictions and briefly outlined the underlying facts. Those officers were assigned to the Firearms Investigation section of the South Australian Police. They concluded “we are of the opinion that [Mr Zammit] is not a suitable person to hold a firearms licence and recommend that it be cancelled”.[2] None mentioned the circumstances giving rise to the failure to order the forfeiture of the firearms in the summary proceedings.
[2] Book of documents p 11, 20 & 3 respectively
On 6 January 2009 the Commissioner of Police delegated his authority as Registrar of Firearms to Chief Inspector Langmead, the Officer in Charge of the Firearms Branch.[3] The following day Inspector Langmead wrote to the appellant expressing the view that in his opinion the firearms licence should be cancelled, he being “satisfied that you have contravened or failed to comply with provisions of the Firearms Act and conditions of your licence and that you are not a fit and proper person to hold a firearms licence”.[4] The letter stated this opinion was formed on the basis of “your convictions for offences against the Firearms Act 1977, and convictions for weapons and drug related offences”. The source of the information sustaining that opinion were the memoranda of 28 October and 5 December 2008.
[3] The power of delegation is conferred by s 6(2)
[4] Book of documents p 5
It went on to advise the recommendation was being forwarded to the Firearms Consultative Committee, “to decide whether it concurs with my opinion” and in effect invited him to make any submission he chose to. At that time cancellation could only be affected by the Registrar “with the agreement of the consultation committee ...” s 20(1) and (1a) Firearms Act 1977. Such a fetter was not retained in the present scheme. This body was replaced by the Firearms Review Committee in the Firearms Act.
Anticipating that retention of the firearms licence might be under review, Mr Zammit emailed Chief Inspector Langmead on 11 November 2008, pointing out that he had need of firearms to protect his pedigree breeding dogs from foxes.[5] In this he asserted that the silencers were “rusty, unusable … kept only as a … keepsake” and the rifles were wrapped in blankets and placed high on the wardrobe out of sight, unbeknown to his children. The photographs tendered in this court confirm the guns were so stored. In a second email to Chief Inspector Langmead of 4 December 2008, he made similar points and added “your department … saw no reason as to why my firearms would not be returned to me 28 days after court”.[6]
[5] Book of documents p 30
[6] Book of documents p 33
In another email to Chief Inspector Langmead dated 15 May 2009, he pointed out that:
·he made no excuses for the offences and has co-operated with all inquiries;
·the cannabis was for personal use to help him sleep because of medical conditions;
·the Magistrates Court deemed him no threat to society “and with the approval of officers from your department gave permission for my firearms to be returned”;
·he requires a firearm because he lives on a rural property.
Nevertheless on 2 September 2009 Chief Inspector Langmead purported to cancel the firearms licence, upon forming the view that Mr Zammit was “not a fit and proper person to possess and use firearms” an opinion based on his firearms offences of August 2008, as well as “your court appearances for various offences.”[7] The reason for the delay in the decision making process following sentence, lies in the abolition of the Firearms Consultative Committee as of 27 November 2008 and the failure to make appointments to the new Committee until 6 August 2009.[8]
[7] Book of documents p6
[8] The South Australian Government Gazette 6 August 2009, p 3472
Firearms Review Committee
Being unhappy with this decision, Mr Zammit wrote again to Chief Inspector Langmead on 17 September 2009 and later the Firearms Review Committee complaining about the cancellation. He made similar points to those in his earlier communications and in particular, stressed that the Magistrate and the Police Department had given their permission for the firearms to be returned, on the recommendation of Mr Gooley.
He also drew attention to the fact that he was issued with a certificate under the hand of the Firearms Branch of the South Australian Police, pursuant to schedules 2 and 3 of the Customs (Prohibited Imports) Regulations 1956 (Cth). This confirmed he was authorised in accordance with the law of the State of South Australia to possess the items named therein without restriction, those items being two fusion tomahawks and four military combat axes. The certificate merely warranted that the subject goods “are not subject to any restriction on possession by this State or Territory’s legislation.” As such this turns out to be of no consequence because the certificate embraced no consideration of whether the appellant was a fit or proper person in any guise.[9]
[9] Section 50(1) Customs Act 1901 (Cth), Regulation 4 and the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 (SA), Regulation 7 and Schedule 2
Mr Zammit urged in his correspondence that these several considerations indicated he continued to be a trusted member of the community, remained a fit and proper person without menace to society and was therefore worthy of retaining a firearms licence. He also pointed out that he had held the licence without blemish for over 26 years and had since purchased a secure storage safe for the rifles. Nonetheless the Firearms Review Committee met on 10 November 2009 and resolved to affirm the decision of the Registrar to cancel the firearms licence.
In order to appreciate the nature of the submissions made on behalf of the appellant, it is necessary to set out the operative parts of the minutes of that decision:[10]
[10] Book of documents, p 39-40
ZAMMIT, J A
Applicant Comments
He has held a firearms licence since the age of 14 and is now 40 years of age. He has never been charged with firearms offences until recently and not charged with any crimes that suggest he is a violent person.
The Magistrate ordered his firearms be returned to him after SAPOL officers of the Firearms Branch did not object.
He needs his firearms to put down sick or injured animals and dogs.
C/Insp Langmead “trusted” him enough to issue B709B forms (import applications) for importing weapons.
Registrar’s Comments
A statement was shown to the committee that was signed by the Firearms Branch Police Officers concerned stating that they believed Mr Zammit was not fit and proper to hold a firearms licence.
The B709B form related to importation of non firearm weapons.
DECISION
After due consideration the Committee AFFIRM the decision of the Registrar to cancel Mr Zammit’s firearms licence due to the court matters including Firearms Offences, Possess Prohibited Weapon and Produce Cannabis.
Being further aggrieved by this outcome, his solicitor wrote to the Registrar seeking a “copy of the decision of the Committee”. The response was that the request was forwarded to them “as they are a separate entity”. This ought to have been seen as an application pursuant to s 26C(2) of the Firearms Act to the Committee for reasons in writing. In any case on 11 November 2009 its Chairman responded in these terms:[11]
Your application for a review of the Delegate of the Registrar of Firearms decision to cancel your firearms licence was considered by the Firearms Review Committee on 10^th November 2009.
It is the decision of the Committee to affirm the decision of the Delegate of the Registrar.
The committee has based this decision on the following basis
·Your court appearances for Firearms Offences, Possess Prohibited Weapon and Produce Cannabis.
A copy of the decision has been forwarded to the Registrar of Firearms
Section 26C of the Firearms Act allows a person aggrieved by a decision of the Firearms Review Committee or subsequent decision of the Registrar of Firearms to appeal the decision to the District Court. The appeal application must be made to the District Court within 28 days of this notice of the decision.
[11] Book of Documents, p 41
The appeal

Mr Zammit appeals to the District Court by notice filed on 9 December 2009, within the 28 days provided for: s 26(4). Such appeals were formerly made to a magistrate sitting in chambers, solely from decisions of the Registrar: section 21D(1) Firearms Act 1977. The Firearms Act is silent as to disposition of such appeals, so they fall to be governed by the Administrative and Disciplinary Division provisions of the District Court Act 1991 (SA). The content of these will be considered later.
The submissions made on his behalf in this court were various. They began with supposed errors in the information supplied to the Registrar and later to the Committee to the effect that Mr Zammit had four children instead of two and that they were aged 8 and 10. This was suggested to have reduced the degree of danger the unsecured firearms might have exposed them to. Another error pointed to was that the court appearance for producing cannabis was in 2003, rather than in 2007 as stated in the memorandum of 1 September 2008, when he was sentenced without conviction, as opposed to being convicted as asserted in the memorandum of 28 October 2008. Those factual errors are accepted.
A more fundamental criticism was that the Committee not only failed to produce adequate reasons, but failed to take sufficient account of the personal considerations tending to rebut the suggestion that he was not a fit and proper person. Another aspect of this submission was a complaint that the focus of the decision making processes was on the offences rather than a wider inquiry the Committee and for that matter the Delegate, were required embark upon.
Legislative Context
In order to test the merits of these arguments, it is necessary to set out the relevant provisions. The power of cancellation was furnished by s 20(1) of the Firearms Act 1977, and read:
20—Cancellation, variation and suspension of licence
(1) If the Registrar is satisfied that the holder of a licence—
(a)has contravened or failed to comply with a provision of this Act or a condition of the licence; or
(b) is, for any reason, not a fit and proper person to hold the licence; or
…
the Registrar may, by notice in writing served personally or by registered post on the holder of the licence, cancel the licence.
The current provision contains an additional power of refusal, namely that the applicant “obtained the licence improperly”: s 20(1)(aa) Firearms Act, but is otherwise identical. It can be seen for the purposes of this case that the capacity to cancel a licence resides alternatively or cumulatively, in contraventions of the Firearms Act, or in the fit and proper person criteria.
By the time the Registrar came to consider the recommendation from the Firearms Branch officers, the notion of “fit and proper person” was expanded by definitions inserted into s 5 of the Firearms Act, in the following way:
5—Interpretation
(10)   For the purposes of this Act a person who has a mental or physical condition that would make it unsafe for him or her to possess a firearm or ammunition must be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence.
(11)   For the purposes of this Act a person may be taken not to be a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence if the person—
(a)has not complied with the requirements of this Act in relation to the safe handling, carriage or use of firearms; or
(b)has been found guilty of an offence against this Act or corresponding legislation of another State or Territory of the Commonwealth; or
(c)has been found guilty of an offence involving actual or threatened violence in this State or any other State or Territory of the Commonwealth or in any other part of the world; or
(ca)    has been found guilty of an offence prescribed by regulation; or
(d)has been guilty of fraud or deception for the purpose of obtaining a licence or permit under this Act or under corresponding legislation in another State or Territory of the Commonwealth; or
(e)is the subject, or has in the past been the subject, of a domestic violence restraining order under the Domestic Violence Act 1994 or any other order of a similar nature made by a court whether in this State or any other State or Territory of the Commonwealth.
(12)   Subsection (11) does not limit the grounds on which a person may be taken not to be a fit and proper person for the purposes of this Act.
(13)   In deciding whether a person is a fit and proper person to have possession of a firearm or ammunition or to hold or have possession of a licence for the purposes of this Act, regard may be had to the reputation, honesty and integrity of the person and of people with whom the person associates.
An examination of the structure and purpose of these interdependent provisions, reveals the underlying purpose of s 5(11) is to enlarge the ambit of the expression “fit and proper person” as contained in s 20(1)(b), so that the specified criteria are additionally capable of falling within that description. This ensures the exercise is not confined to s 5(11) considerations, so that the generally understood ambit of “fit and proper person” remains intact. This stands in contrast to s 5(10) which when applicable, statutorily mandates the conclusion that a person is not fit and proper to hold a licence under the Firearms Act.
However, s 5(11) & (12) are clearly qualified by s 5(13) in deciding that question. Either way the decision-maker is obliged to have regard to “the reputation, honesty and integrity of the person and of people with whom the person associates”: s 5(13). It is apparent from this requirement that even though cancellation might at first sight appear justified in accordance with ss 5(11), or 5(12), or both, there may be countervailing considerations under the wider rubric of “reputation, honesty and integrity”, which might on balance, serve to outweigh the adverse considerations.
Consideration of the merits
In this particular case none of the offences were prescribed for the purposes of s 5(10)(ca), and yet s 5(11)(a), (b) and (ca) were engaged. The number of relevant offences, their serious nature as judged by the maximum penalties applicable, certainly left it open to form the conclusion that the appellant was not a “fit and proper person”, taken alone or together with the less serious associated offences. The possession of two silencers was significant in that respect. The higher deterrent oriented penalty prescribed for that offence, reflects sound policy that the possession of silencers is a serious matter indeed: DPP (Vic) v Faure.[12] The poor condition only served to add to their potential danger.
[12] (2005) 153 A Crim R 316 at [24]
These statutory provisions formed part of a direct national response to the 1996 Port Arthur massacre.[13] The resultant amendments affected by the Firearms (Miscellaneous Amendment Act) No 70 of 1996, were designed to appreciably strengthen the Firearms Act. The 1996 amendments might be considered by some to be a very moderate response to this ever growing problem. They followed a report “After Port Arthur – Issues of Gun Control in Australia”,[14] adopted by the Australasian Police Ministers Council. The report noted, amongst many other things:[15]
·There were 522 firearms deaths in Australia during 1994;
·Figures for 1992-93 show that firearms were used in 25 per cent of homicides;
·In 40 per cent of homicides in using a firearm involved .22 calibre rifles;
·Firearms are also significant contributors of death by accident and suicide;
·The vast majority of firearms homicides were unplanned and impulse, and in all likelihood would not have occurred if the weapons were not to hand.
[13] Referred to in the second reading speech to the Firearms (Miscellaneous) Amendment Act No 70 of 1996, see Hansard, House of Assembly 10 July 1996, p 1919.
[14] Parliament of Australia Library Current Issues Brief 16, 1995-96
[15] Compare the statistics compiled in the judgment of Bryer J in Division of Columbia v Keller 128 S.Ct 2783 (2008) and Stephens J in McDonald v City of Chicago, Illinois 56IUS – (2010), especially at footnotes 34 and 35, and refer also to the appendix to the opinion of Breyer J therein.
The scourge presented by the abuse of firearms, is rightly dealt with as a very serious issue. For these very reasons the courts constantly emphasise that holding a gun licence is not a right but a privilege: Johnson v Registrar of Firearms.[16]
[16] (2001) 79 SASR 353 at 357
The debates in Parliament of the era express intense Parliamentary disquiet over the rapid increase in the number of serious offences involving the use of firearms, fundamentally because the proliferation of illegal firearms. The menace of ever more sophisticated and dangerous illegal weapons, and the abuse of firearms, is a plague on our nation. In Davies v Registrar of Firearms,[17] Gray J observed:
[23] There is a clear need for the provisions of the Firearms Act 1977 and Regulations to be complied with. It is important that the community generally is aware of the need for careful and strict compliance. The legislative scheme for gun control requires compliance for its efficacy. Compliance with the Act and Regulations may cause a degree of inconvenience but the dangers of poor gun control are too evident in our society for matters of non-compliance to be disregarded or overlooked.
[17] [2005] SASC 149
This passage was referred to with approval in Jaworski v Police,[18] Registrar of Firearms v Gitsham,[19] and Golding v Police,[20] as well as by David J in Police v Losapio,[21] who added at [21]:
The possession of firearms is a privilege and a serious responsibility. It is entirely consistent with the legislative scheme that the holders of firearms licences be carefully scrutinised to ensure they are of appropriate character to bear this responsibility. At the same time, characters change over time and offences in the past need not permanently prevent an individual from holding a firearms licence.
And in Offe v Police[22] Gray J also said:
[26] … The community must not be complacent about the dangers of firearms and the damage that can be caused when they are not kept in accordance with the legislative requirements. Not only are weapons targets for thieves, they present a real danger to unsuspecting children and persons who may happen across them accidentally. …
[18] [2009] SASC 284
[19] (2002) 84 SASR 72 at 76
[20] [2007] SASC 159 at [18]
[21] [2007] SASC 112
[22] (2002) 84 SASR 1; (2002) 134 A Crim R 121, (2002) 221 LSJS 393 at [26], cited with approval by the Court of Criminal Appeal in R v Nash (2008) 100 SASR 109 at [26], and see R v Flitter [2010] 1 Cr App R(S) 85
The supposed factual errors, as revealed by the reasons of the Committee, are immaterial. The error in the date of the previous cannabis offence was of little moment and describing it as involving a conviction was of no consequence given the change to s 34A(1) mentioned above. Of course the number and age of small children likely to be about the place has marginal relevance, as does the fact that the firearms were secreted in a place where they could not be reached by them. Even so the evil in failing to store firearms lies in the potential for misuse during situations imposing high stress and impulsive behaviour. The Ministerial report following the Port Arthur massacre found that:[23]
The vast majority of firearm homicides are unplanned and impulsive and in all likelihood would not occur if such a lethal weapon were not to hand. The availability of the firearm in these circumstances makes death a far greater likelihood, for research has demonstrated that the death rate for victims assaulted by guns is several times that of those assaulted with lethal intent by knives and other weapons.
[23] National Committee on Violence. Violence and Directions for Australia, Australian Institute of Criminology, Canberra 1990 P170
That the subject firearms may have been about the home for some years aggravates matters, because they should not have been left unsecured for so long, where the potential for things to go wrong remained for an extended period. As Gray J once again observed in Offe v Police,[24] one of the primary purposes of the legislation is to provide for community protection by ensuring “that only responsible persons with appropriate licences were able to access firearms”. That being so, the court would have otherwise been inclined to dismiss the appeal as lacking in merit. The firearms offences in themselves were serious multiple breaches of the very great privilege of holding a firearms licence. The appellant was fortunate to have been charged with only two rather than six firearms offences, as he may well have been.
[24] Above at [22]
Procedural matters
There is however one matter of some substance. Apart from the emails detailed above, in another of 9 December 2008 to Chief Inspector Langmead, Mr Zammit directly raised the issue of the attitude of the SAPOL Firearms Branch in this way:
The matter has been heard in court and the SAPOL Firearms Branch made it clear to the prosecution that they did not want my firearms forfeited to the courts as they had no issues with them being returned to me. I arranged with John Goulie (sic) from Firearms Branch to collect my guns 28 days after court and it was only then he realised that for some reason my firearms licence was under review.
This is the same Officer Gooley who was a party to the initial police search and lent his signature to the recommendations that Mr Zammit was not a suitable person to hold a firearms licence. Based on these recommendations, the firearms licence was cancelled on 2 September 2009 and affirmed by the Firearms Review Committee on 10 November 2009.
To outward appearances the two stances are incompatible, and yet both originate from the same source, the Firearms Branch of the South Australian Police. The Commissioner’s delegate Chief Super Inspector Langmead was the officer-in-charge of that Branch. This subject was evidently not a matter either investigated or considered at either stage in the cancellation process.
Section 42E(3) of the District Court Act requires the court to “give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reason”. The meaning and content of this directive was analysed in Registrar of the Veterinary Surgeons Board (SA) v Mooney (2).[25]It is sufficient for the resolution of this appeal to note the omission to investigate and still less have regard to this potentially highly relevant consideration, clearly constitutes “cogent reason” to depart from the decision to cancel. It would have also amounted to jurisdictional error as understood by the principles of administrative law: Craig v State of South Australia,[26] Sinclair v Maryborough Mining Warden.[27]
[25] [2009] SADC 69 [19-27]
[26] (1995) 184 CLR 163 at 177
[27] (1975) 132 CLR 473 at [83], [87] and [196]
This is so because there was an extant allegation to consider and weigh, namely that the firearms branch of SAPOL itself positively held out that the appellant was a fit and proper person to retain firearms, despite the firearms offences. The decision makers below clearly regarded the failure to comply with the requirements of the Firearms Act, as decisive of the situation. Neither alludes to this issue, let alone deals with it. In so proceeding they have failed to have regard to a material consideration, insofar as it may have a bearing on the “reputation, honesty and integrity” of the appellant, as required by s 5(13) of the Firearms Act.
The failure to give reasons
As mentioned already the appellant claims the reasons of the Firearms Review Committee were inadequate. In light of the above conclusions it is not strictly necessary to consider this question. However given the conclusion that there was a failure to complete the statutory process, it is best to add the following comments. There is a statutory obligation on the Firearms Review Committee to furnish “reasons in writing” upon request: s 26C(2) Firearms Act. No such reasons were produced in this instance, apart from those quoted above. They are completely silent in relation to Mr Zammit’s assertion that firearms officers did not seek in the Magistrates Court orders for the forfeiture of the firearms.
Whatever the content of the duty to give reasons is at large, the subject matter of the Firearms Act, the potential consequences of cancellation or suspension, the right of complete merits review to the Committee and the content and nature of the supervisory jurisdiction on appeal, all point to an obligation to provide reasons, even though they need not be elaborate: International Finance Aust Co Ltd v New South Wales Crime Commission.[28] In this particular instance the failure to even mention the alleged representation regarding the return of the guns to the appellant, may well in itself have been indicative of the failure to exercise jurisdiction: Kirk v Industrial Relations Commission of New South Wales.[29]
[28] (2008) 232 FLR 37: [2008] NSWCA 291 at [46-47]
[29] (2010) 239 CLR 531 at [83]
Disposition of the appeal
Normally the court exercises a discretion to “remit matters to the original decision-maker”, pursuant to s 42F(c) of the Firearms Act for further consideration “in accordance with any directions or recommendations of the court”, to the body from which an appeal is brought in the first place. At first sight this would appear to be the Firearms Review Committee. However, the structure of the cancellation process reveals that the appropriate order for remission is not as straightforward as might first be thought. The power of cancellation is that contained in s 20 of the Firearms Act and resides in the Registrar or his nominee. A person aggrieved by his decision, may apply for referral of the decision “to the Firearms Review Committee for review”: s 26B(1). That committee has only two powers of disposal, affirmation or remission to the Registrar: s 26B(8)(b).
The right of appeal to the District Court vested by s 26C(1), of the Firearms Act is more complicated, in that there are alternative avenues of redress in the District Court, direct from either decision-maker. Section 26C(1) reads:
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.
The section is otherwise silent as to powers of disposition, so that the court is then driven back once again to the District Court Act itself. It is apparent however that the structure of s 26C(1) furnishes the right of appeal to the District Court either from the Firearms Review Committee that affirms a Registrar’s decision, or direct from a decision of the Registrar following remission by the Committee. There is a further direct right of appeal from the Registrar, where a firearms prohibition order is in issue. These disparate mechanisms of redress create a degree of uncertainty with respect to the due excise of the powers of remission vested in the District Court.
It is not clear what avenues are available to the Committee if a matter is remitted by the District Court, since its de novo powers are confined to affirmation or remission of the Registrar’s decision. Grammatically speaking, the “original decision maker” is the Registrar and the Registrar is in fact respondent to this appeal. Remitting the matter to the Registrar has the advantage of enabling the decision making process to commence afresh, whilst preserving the rights of reconsideration by the Firearms Review Committee, should that arise. In the result the appeal court must take the course most appropriate to the circumstances: Kovadeu v Minister for Immigration and Multicultural Affairs (1990).[30] Both parties urge the court to remit to the Registrar in the event that the appeal is allowed. Seen in this way, although the proper course to take was initially by no means clear, the better recourse is to remit the matter to the Registrar of Firearms or his delegate, if there happens to be one
[30] 100 FCR 323 at [13-14]
Orders

In the result the appeal instituted by the appellant dated 9 December 2009 is allowed. The question of his fitness to hold a firearms licence is remitted to the Registrar of Firearms (or his Delegate) for further consideration. There will be a direction to reconsider the question of cancellation of the appellant’s firearms licence pursuant to s 20 of the Firearms Act, as informed by ss 5(11), (12) and (13), in accordance with these reasons. Despite the earnest written submission of counsel for the appellant,[31] as there is no feature of the case justifying an order for costs, there will be no order with respect to costs: s 42H(2) District Court Act, Moore v Registrar of the Medical Board (No 2).[32]
[31] Filed 27 July 1010, FDN 8
[32] (2002 219 LSJS 448 at [16-17]