Braithwaite v Commissioner of Police, NSW Police [2004] NSWADT 150

CITATION: Braithwaite v Commissioner of Police, NSW Police [2004] NSWADT 150 DIVISION: General Division APPLICANT PARTIES: Garry Braithwaite RESPONDENT Commissioner of Police, NSW Police FILE NUMBER: 033345 HEARING DATES: 29/03/2004 SUBMISSIONS CLOSED: 03/29/2004 DATE OF DECISION: 07/27/2004

BEFORE: Montgomery S - Judicial Member APPLICATION: Firearms Act - firearms licence - issue of licence or permit - Firearms licence - issue of licence or permit MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Firearms (General) Regulation 1997 LEGISLATION CITED : Firearms Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Regulation 2001 CASES CITED: Snape v Commissioner of Police [2003] NSWADT 262 Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 APPLICANT REPRESENTATION: In person RESPONDENT P McLaughlin, solicitor ORDERS: 1. The Commissioner's decision to refuse the licence application is set aside; 2. I remit the application for consideration by the Commissioner subject to the recommendation that the licence be granted when Mr Braithwaite has completed such firearms training and safety courses as the Commissioner considers appropriate for this category of licence.

REASONS FOR DECISION Background 1 Mr Braithwaite held a Class Two Shooters Licence from 24 April 1993 until 14 April 1998. On 9 April 1998 he was issued with a Category AB firearms licence (rifles and shotguns) and a Category C firearms licence (semi-automatic firearms). The Category AB licence was renewed on 16 September 2003. The Category C licence expired on 15 January 2003 and, on advice from the Firearms Registry has not been renewed. 2 On 7 December 2002 Mr Braithwaite applied to the Commissioner for Police ('the Commissioner') for a Category H firearms licence ("a pistol licence") for the genuine reason of 'Business or Employment – Commercial Fishing'. His application was refused on 16 October 2003 and on 13 November 2003 an internal review confirmed the decision to refuse the licence. 3 The Commissioner's delegate provided written reasons for the internal review decision and Mr Braithwaite was provided with a copy of those reasons. Those reasons are set out below. On 4 December 2003 Mr Braithwaite lodged an application with the Tribunal for review of Commissioner's decision to refuse his licence. Applicable legislation 4 These are not adversarial proceedings in which Mr. Braithwaite carries an onus of proof. Mr. Braithwaite, by making the application, triggers a process of merits review by the Tribunal. Mr. Braithwaite does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Braithwaite and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 5 Section 63 of the ADT Act sets out the approach to be taken by the Tribunal in relation to an application for a review of a reviewable decision. Section 63 states: "63 Determination of review by Tribunal (1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision. (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal." 6 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as either to confirm the original decision, vary it, or set it aside and substitute another. "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77). 7 The principles and objects of the Firearms Act 1996 ("the Act") are set out in section 3 in the following terms: " 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being 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 and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. (2) The objects of this Act are as follows: (a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, (b) to establish an integrated licensing and registration scheme for all firearms, (c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm, (d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and sales of firearms, (e) to ensure that firearms are stored and conveyed in a safe and secure manner, (f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms." 8 Section 8 of the Act deals with the different categories of licences, the firearms to which they apply, and the authority they confer. Pursuant to that section a licensee may be authorised to possess or use a registered pistol for a genuine reason. Insofar as is relevant section 8 provides: " Category H licence (pistols) Firearms to which the licence applies: - pistols (including blank fire pistols and air pistols). Prohibited firearms are excluded from this licence category. Authority conferred by the licence: The licensee is authorised to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence." 9 A firearm licence is issued under section 11 of the Act. Insofar as is relevant, section 11 of the Act provides: " 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. … (3) A licence must not be issued unless: (a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace, and (b) in the case of a person who has never held a licence (including a firearms licence under a previous Act), the applicant has completed, to the satisfaction of the Commissioner, such firearms training and safety courses as are prescribed by the regulations in respect of the licence concerned, and … (3A) Despite subsection (3) (b), the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. … (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence." 10 Section 12 of the Act provides: " 12 Genuine reasons for having a licence (1) The Commissioner must not issue a licence that authorises the possession and use of a firearm unless the Commissioner is satisfied that the applicant has a genuine reason for possessing or using the firearm. (2) An applicant does not have a genuine reason for possessing or using a firearm if the applicant intends to possess or use the firearm for any of the following reasons: (a) personal protection or the protection of any other person, (b) the protection of property (other than in circumstances constituting a genuine reason as set out in the Table to this section). (3) Subsection (2) does not limit the reasons which the Commissioner may be satisfied are not genuine reasons for the purposes of justifying the possession or use of a firearm. (4) Subject to this Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant: (a) states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and (b) is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason." 11 Section 12 then prescribes a number of activities, any one of which is "a genuine reason for possessing or using a firearm". Relevantly to Mr Braithwaite's application, the Table in section 12 sets out the conditions to be satisfied if a licence is to be issued for the genuine reason of "business or employment": "The applicant must demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use the firearm for which the licence is sought." 12 In the case of a category H licence however, it is not sufficient to establish the genuine reason as required by section 12. Section 16 of the Act provides: " 16 Category H licences-restrictions on issue The Commissioner must not issue a category H licence to any person unless: (a) the genuine reason established by the person for being issued with the licence is any one or more of the following: (i) sport/target shooting, (ii) business or employment, (iii) firearms collection, and (b) in addition to establishing any such genuine reason, the person produces evidence to the Commissioner's satisfaction that there is a special need for the person to possess or use a pistol." 13 Section 17 of the Act allows for regulations which "may specify the sort of evidence that may be produced in order to satisfy the Commissioner of a special need", however the regulations do not currently make any such specification. 14 The objects of the Occupational Health and Safety Act 1983 ("the OH&S Act") are set out in section 3 as follows: "3 Objects The objects of this Act are as follows: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, (d) to provide for consultation and co-operation between employers and employees in achieving the objects of this Act, (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, (f) to develop and promote community awareness of occupational health and safety issues, (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices, (h) to protect people (whether or not at a place of work) against risks to health and safety arising from the use of plant that affects public safety." 15 Part 3 of the OH&S Act provides for the making of regulations. The Occupational Health and Safety Regulation 2001 ("the OH&S Regulation") is made pursuant to that power. Clauses 34, 35 and 36 of the OH&S Regulation impose certain obligations on the controller of premises. The term "Premises" is defined in clause 3 of the OH&S Regulation as follows: "premises includes any place, and in particular includes: (a) any land, building or part of any building, or (b) any vehicle, vessel or aircraft, or (c) any installation on land, on the bed of any waters or floating on any waters, or (d) any tent or movable structure." 16 Clause 3 of the OH&S Regulation also provides: "occupier of premises includes: (a) a person who, for the time being, has (or appears to have) the charge, management or control of the premises, or (b) a person who, for the time being, is in charge (or appears to be in charge) of any operation being conducted on the premises." 17 Clauses 34, 35 and 36 of the OH&S Regulation provide: " 34 Controller of premises to identify hazards (1) A controller of premises must identify any foreseeable hazard arising from the premises that has the potential to harm the health or safety of any person accessing, using or egressing from the premises. (2) Without limiting the generality of subclause (1), the controller must identify hazards arising from: (a) the layout and condition of the premises, including the presence of a confined space, and (b) the physical working environment, including the potential for: (i) people slipping, tripping or falling, and (ii) objects or structures falling on people, and (c) the presence of material containing asbestos. (3) A controller of premises must ensure that hazards are identified: (a) during any design of the premises, and (b) before the premises are provided for use as a place of work. Maximum penalty: Level 4. 35 Controller of premises to assess risks (1) A controller of premises must assess the risk of harm to the health or safety of any person arising from any hazard identified in accordance with this Division. (2) When assessing those risks, the controller must: (a) evaluate the likelihood of an injury or illness occurring and the likely severity of any injury or illness that may occur, and (b) review available health and safety information relevant to a particular hazard, and (c) identify the actions necessary to eliminate or control the risk, and (d) identify records that it is necessary to keep to ensure that risks are controlled (including the length of time for which records are to be kept). (3) A risk assessment may relate to more than one place of work or hazard so long as it takes account of the particular circumstances of each place of work or hazard. Maximum penalty: Level 4. 36 Controller of premises to eliminate or control risks (1) A controller of premises must eliminate any risk, arising from the premises, to the health or safety of any person accessing, using or egressing from the premises. (2) If it is not reasonably practicable to eliminate the risk, the controller of the premises must control the risk. (3) A controller of premises must ensure that all measures (including procedures and equipment) that are adopted to eliminate or control risks to health or safety are properly used and maintained. Maximum penalty: Level 4. Note: This Part also contains specific risk control requirements with which the controller must comply." Mr. Braithwaite's case 18 Mr Braithwaite appeared and gave evidence in support of his application. He was also subjected to cross-examination. His case is essential as set out in his original application to the Commissioner and in his application for an internal review. He stated: "Genuine Reason and Special Needs: My Genuine reason and special need to possess a Category C and or Category H firearm are the same for Business and Primary Production because I am a Commercial Fisherman, a Primary Producer. As stated on my application Form P 667 Genuine Reason - Commercial Fishing, I am a licensed Commercial Fisherman and have been for over 30 years. I own NSW Fishing Business 1447 and a Commonwealth Tuna Minor Line Fishing Permit No 402379.My licensed Fishing vessel "Delta II" LFB 396 is a small multi purpose Hook and Line boat. In my line of fishing I catch large tuna, sharks and marlin worth up to $80 to $l00 per Kilo. I catch these fish by many methods including Rod and Reel, Trolling etc. There is only myself and my defacto wife Anne to crew the vessel therefore when we catch these large Tuna and Marlin Anne has to steer the boat while I play the fish to the boat and shoot them single handed. Most times you must put 2 or 3 shots into them in quick succession to kill them quickly so they don't damage them selves or rip off my hand that I have the trace rapped around. One Tuna can be my month's wages, so I can't afford to lose one fish. It would not be possible to do this with a Category A or B firearm. I therefore need a semi automatic firearm be it a rifle or pistol (Category C or H) to carry out my job safely and very efficiently and as I get older my need for a semi-auto firearm becomes greater." 19 Mr. Braithwaite's evidence before the Tribunal was consistent with that statement. Mr. Braithwaite argued that his special need has been established in that his need is comparable with that found by Judicial Member Rice in the matter of Snape v Commissioner of Police [2003] NSWADT 262 ("Snape"). Mr. Braithwaite argues that his circumstances are similar to those of Mr Snape. The difference is the size of the boat they use and while Mr Snape fishes alone, Mr. Braithwaite is accompanied by his wife. Nevertheless, Mr. Braithwaite is not assisted in the catching of the fish or bringing them onboard. This he does on his own and he requires a firearm for use in that process. 20 Mr. Braithwaite says that his business involves the catching and landing of large tuna, sharks and marlin. In order to do so safely, he adopts a practice of shooting the fish before landing them. He provided a detailed description of the procedure that he has adopted in catching and landing these fish and asserts that his practices are consistent with that elsewhere in the industry. 21 Mr Braithwaite gave a description of how he catches sharks, and he described the reasons why and the way in which he uses a firearm. His evidence is that a fish which is pulled to the side of the boat on a line is shot before it is pulled aboard, because to pull a live tuna, marlin or shark on board a boat would be dangerous to the fishermen. Mr Braithwaite's evidence is that it is the invariable practice in the fishing industry to shoot these fish before bringing them aboard a boat. He further asserts that the possession of a semi-automatic firearm is essential to that business. He says that it is difficult and dangerous for him to both hold the fish on the line and try to shoot it with a rifle. It takes 2 or 3 shots to kill them quickly. This is not possible with a single shot firearm. Until recently he was able to use a semi-automatic long arm rifle. He seeks the pistol licence as he has been advised that he is no longer able to obtain a licence for a semi-automatic long arm rifle for this purpose. 22 Mr Braithwaite denied that he wants a pistol for convenience: he says that it is essential for his business. He did not concede that the alternatives proposed by the Commissioner would allow him to carry on his business. He agrees that it would be possible to catch fish without a pistol but that he would not be able to do so effectively, or safely. 23 Mr. Braithwaite asserts that he has carried on in the industry for over 35 years and has used firearms safely during that period. He has stabilisers on his boat to reduce the impact of rough seas and has non-skid surfaces on the deck. He says he always maintains a safe working environment. He asserts that during his long experience in the industry he has developed a knowledge of the likely safety hazards and equipped his boat to respond to those hazards and has developed techniques to deal with health and safety issues. The Commissioner's case 24 The Commissioner does not consider it appropriate to issue a Category H firearm licence in Mr. Braithwaite's circumstances as he has not satisfied the legislative requirements. Mr McLaughlin repeats the arguments set out in the reasons for internal review: "D. REASONING PROCESS: The Firearms Act 1996 ('Act') sets up a scheme for licensing people to possess and use firearms. There are several provisions, which allow the Commissioner to refuse a licence. I have formed the view that the legislative provisions listed above are relevant to your particular case. Further, I have noted the abovementioned issues raised by you in support of your application. After fully and independently considering all relevant matters I make the following fresh determination. In 1996, the government enacted "tough new gun laws". One of the underlying principles of that law is to improve public safety by imposing strict controls on the possession and use of firearms. In considering your application I have taken into account your stated desire to possess and use a pistol in conducting your business as a commercial fisherman. I have also given consideration to the underlying principles of the Act, which are to improve public safety. I have also noted the requirements as set out in Sections 12 and 16 of the Act with respect to the criteria that must be satisfied by applicants when making an application for a Category H firearms licence under the genuine reason of 'business'. Specifically, Section 12(1) places a restriction on the Commissioner in that he must not issue a licence that authorises the possession and use of a firearm unless he is satisfied that the applicant has a genuine reason for possessing or using the firearm. Further, Section 12 Table in relation to the genuine reason of 'Business' states that an applicant must demonstrate that it is necessary in the conduct of their business to possess or use the firearm for which the licence is sought. I note that you have been approved to be issued with a Category AB firearms licence for the genuine reason of 'business'. I have also considered your reasons for applying for a category H licence. Specifically you state that your business consists of just you and your defacto wife and that in your line of fishing you catch large tuna and marlin worth up to $80-$100 per kilo. You also state that the catch involves your wife gaffing the tuna and marlin whilst you play them to the boat. Further, that most times when you make your catch you need to put "2 or 3 shots into them in quick succession to kill them" quickly to avoid them damaging their flesh (as you can't afford to lose one) and/or ripping off your hand. I also note your advice that this cannot be achieved by using a Category A or B firearm. I have also taken into account the fact that you were previously licensed to use firearms covered by a Category C licence, which provided the 'quick succession' of shots however, that this Category of licence is now restricted to being issued to 'primary producers'. In this regard, it is my understanding that current Firearms Registry Policy does not classify commercial fisherman as being primary producers. Accordingly, this category of licence is no longer available to you. I am satisfied that you have established a genuine reason for the purposes of Section 12(1) of the Act that being 'business'. However, because you have Category A and B firearms at your disposal to carry out your duties as a Commercial Fisherman, I have formed the view you cannot satisfactorily establish that it is necessary in the conduct of your business to possess and use a Category H firearm (pistol). In forming this view I have noted your advice that you require a number of shots to kill the fish quickly, so as not to allow them to damage their flesh. This is, in my view, does not establish that it is necessary for you to use a semi-automatic firearm such as a pistol but rather a desire to do so to avoid a possible decrease in value of the fish. In addition, in arriving at this view, I have considered that persons making such an application must also establish a special need for possessing and using a pistol. In other words why the task that requires use of a firearm for which the licence is sought cannot be met by other means. In this regard, I find that it is reasonable to believe that there are other means at your disposal such as the use of a Category A or B firearm or the employment and/or assistance of another deck hand/crew member. Further, I am aware of and I am required to adhere to Firearms Registry Policy on this issue. Specifically, it is the opinion of the Commissioner that commercial fisherman, without more, are not able to produce evidence to the Commissioner's satisfaction that there is such a special need for the use of a pistol to carry out their duties. Lastly, I have given substantial weight to the opinion of Senior Sergeant Hoffman, NSW Police Forensic Ballistics in relation the appropriateness of using a pistol to destroy catch such as sharks, tuna and marlin. It is his opinion that it is safer for the operator and more effective to kill a catch by using a rifle with that type of ammunition. Specifically, he advises the following considerations as to why a rifle is more suited to these tasks than a pistol: Variable range considerations: Handguns are limited in their accuracy and performance over longer distances. Destroying large predator animals in their natural environment may require discharging a firearm from point blank range out to a considerable distance with an animal, which is a moving target. Thus longarm firearms are more effective and efficient in their performance, from point blank (contact) range to long-range distance shots. Firearm Handling and Accuracy: The destruction of wild animals in their natural environment is definitely more suitable with a longarm firearm due to the greater firearm control and accuracy achieved with a longarm. This is due to the long barrels fitted to rifles and shotguns, which were designed for accuracy. Longarms are also fitted with butt stocks and forearm stocks making them a shoulder held weapon allowing more support and control of the firearm ensuring safety and greater accuracy. Senior Sergeant Hoffman closes by advising that in the history of firearm development longarm Firearms were designed and developed for not only protection but to enable the "hunter gatherer" to hunt and kill animals in the field. Whereas handguns were designed for carrying on the person for close personal protection. Any serious hunter in the field would only use a longarm firearm and would not entertain a small-barrelled handgun controlled by way of a handgrip only. Accordingly, for the reasons set out above I have formed the view that your application for a Category H firearms licence for the genuine reason of 'business' should be refused. You are also advised that Category C firearms licences are restricted to being issued to persons who establish the genuine reasons of 'primary production' or in very limited circumstances persons participating in 'clay target shooting'. E. DECISION: The Commissioner's decision to refuse your application for a category H firearms licence is to stand." 25 Mr McLaughlin also argues that there would be a risk to public safety if the licence were to be issued. Mr McLaughlin submitted that the OH&S Act and the OH&S Regulation ("the OH&S legislation") are relevant to the issue because Mr. Braithwaite's boat is premises for the purposes of the OH&S legislation and Mr. Braithwaite is an occupier of, and has control of those premises. He therefore has obligations to comply with the OH&S legislation by identifying hazards, assessing risks and eliminating or controlling the risks. Mr McLaughlin submitted that Mr. Braithwaite is unable to show that he has met those obligations. 26 Detective Inspector Wayne Hoffman ("D.I. Hoffman") gave evidence for the Commissioner with respect to the safety issues associated with the use of a pistol in Mr. Braithwaite's circumstances and was subjected to cross-examination. He also gave a presentation of the relative risks associated with the use of either a pistol or a long-arm rifle. D.I. Hoffman's evidence was consistent with that provided in a report that was put in evidence. In his report he stated: "I am a Detective Inspector of Police and the Commander of the Forensic Ballistics Investigation Section, Forensic Services Group, Sydney. I have studied the technical investigation of crime for over twenty years. My duties involve the technical investigation of crime and scenes of crime involving Firearms. I have tested and examined many thousands of firearms, weapons and ammunition components of both commercial and military origin. I have attended numerous autopsies upon human beings who have been fatally wounded by weapons and firearms of various calibres. These examinations have included both intentional and accidental shooting incidents. I have studied the techniques of gunshot wound interpretation. I am a member of the Association of Firearm and Tool mark Examiners (AFTE). I have been involved with firearms, weapons and ammunition for approximately forty years. During these years I have been involved in the fields of recreational shooting/hunting, specialised military training and as a licensed handgun shooter in various pistol clubs. My specialist evidence has been accepted at Local, District, Supreme and Coroners Courts in the State of New South Wales. The Federal Court of Australia and Department of Defence Military Board of Inquiries. I regard the use of firearms for the destruction of large fish species whilst on a craft at sea not to be a safe firearm practice. Overall the environment that this practice must take place in is directly effected by the uncontrollable forces of 'nature', with the effect of wind, ocean and currents. Within this uncontrollable environment a marine craft must be steered and manoeuvred creating an unstable platform for this type of activity. In this environment a person then has to carry out the process of operating a firearm by handling, loading, operating the trigger mechanism, operating action mechanisms, target acquisition and then the final act of discharge of that firearm. After discharging that firearm the shooter must then secure the firearm to prevent loss or damage to the firearm or to prevent any accidental discharges. To add to these serious considerations is the fact that a struggle with a live animal is taking place at the same time. This is further affected by the fact that the shooter must carry out this activity with one arm and hand and not with two arms and two hands. I believe this activity overall is not safe and contains many risks. GENERAL FIREARM SAFETY A handbook titled 'Handbook on Firearms Safety Awareness,' dated June 2002 has been produced for the NSW Government. The Firearms Safety Awareness Council and the NSW Police on behalf of the NSW Shooting Association prepared this book. This handbook has a table of contents which contains ' Firearms Safety Information, on page no's 17 -19. The basic firearms safety rules outlined in the book are (36) in number. Number (28) states, "Firing at or across water, flat hard ground, or metal objects is always dangerous. A ricochet may occur and end in a tragic result." I produce selected copies of Handbook (8) Pages. Basic safety rule number (28) is illustrated by the following fatal accidental shooting I attended in the year 1987. On 17 November 1987 I attended the property 'Yalgo' at Nymagee in New South Wales (Ballistics Job J87/524). There I carried out a forensic investigation into the fatal shooting of John William Chillingworth. The investigation revealed that the deceased in company of other hunters/shooters were on the banks of a dam on the property. One of the shooters armed with a 7.62x39mm calibre SKS Chinese self-loading rifle fired a number of shots at wild ducks that were floating on the surface of the water of that dam. One of those shots ricocheted off the surface of the water and struck the deceased in the chest region killing him instantly. The deceased was not in the direct line of fire but was standing on the far bank well off to the side of the area of shooting. USING FIREARMS SAFELY The process of handling, holding, aiming, trigger control, muzzle awareness and then finally the correct securing of a handgun, requires more dexterity than the use of a long arm firearm. The use of a handgun into this type of working marine environment is more of a risk. NSW Police are highly trained in the use of handguns and undergo annual training on ranges under controlled situations. In the last decade a minimum of four (4) police officers have suffered a lapse in the process of handling, holding, trigger control, muzzle awareness and the correct securing of a handgun: - In the mid 1990' s a tactical police officer of the State Protection Group shot himself in the leg with a 9mm Glock self-loading pistol on the range of the Sydney Police Centre whilst in the act of re-holstering. On 18 July 1998 I attended the accidental shooting of Constable Slater a recruit police officer on the indoor range at the Goulburn Academy. The recruit had shot himself in the right thigh with a .40cal Glock self-loading pistol while in the process of re-holstering under instruction. (Ballistics Job no. J98/273) On 28 August 2001 a tactical member of the SPSU (State Protection Support Group) Constable Kurt Maynard shot himself in the left calf with the projectile then travelling down his left leg and then entering his left foot. 11ris occurred at Armidale Pistol Club with a .40cal Glock self-loading pistol while in the process of re- holstering on the range. (Ballistics Job No J01/522) On 30 May 2003 Constable Michael Gibson shot himself in the right thigh with a .40cal Glock self-loading pistol at Orange Pistol range while in the process of re- holstering during his annual re-qualification shoot. BALLISTICS CONSIDERATIONS (Variable range) Handguns are limited in their accuracy and performance over longer distances. Destroying large predator fish species in their natural environment may require discharging a firearm from point blank range out to a considerable distance with an animal, which is a moving target. Thus long arm firearms (rifles and shotguns) are again more effective and efficient in their performance (killing power) from point blank range to long-range distance shots. (Firearm handling and accuracy) The destruction of wild animals in their natural environment is definitely more suitable with a long arm firearm. This is due to the greater firearm control and accuracy achieved with a full-length stock long arm. Long arm rifles and shotguns are fitted with longer barrels designed to discharge high velocity projectiles travelling with greater accuracy and delivering greater energy to the intended target. Long arm Firearms are also fitted with full-length stocks consisting of the forearm stock, pistol grip and butt stock. Thus making a long arm firearm a weapon, which can be gripped and held in various fashions giving greater support and control ensuring safety and accuracy. In contrast a handgun can only be held by the pistol grip, which is held in the palm of the hand and gripped with the thumb and fingers. To assist accuracy and to have greater control of a handgun (revolver or self-loading pistol) a shooter must grip a handgun using both hands (called a two hand grip). In the situation outlined by Braithwaite this is not possible and the handgun would be held and fired with one hand. A further risk to any shooter utilising a handgun is any wearing of protective gloves, which could interfere with the handling of the handgun and the operation of the trigger inside the trigger guard of the handgun and create another safety risk. FURTHER ENQUIRIES On 26 March 2004 the Ballistics Section contacted Neil MacDonald the General Manager of the South Australian Fishing Council and enquired into any use of firearms for the destruction of large fish species, e.g. tuna. Mr MacDonald advised that it is not a practice to use firearms in South Australia as it is considered an Occupational Health and Safety issue. However Mr MacDonald also understood that some East Coast operators do use a gun, usually a rifle to kill their fish at the point of landing to avoid problems with handling them live on deck. On 25 March 2004 the Ballistics Section contacted Colin Johnston the Manager Aquatic Animal Health South Australian Primary Industries Department (Aqua Culture). Mr Johnston advised that no firearms are used for dispatch of tuna in South Australia. He also advises that it is well known that long line fishermen in the Eastern States of Australia pull the tuna up to the side of the boat and shoot them in the head with a .22 calibre firearm. On 26 March 2004 the Ballistics Section contacted Sergeant Phil Kilford of the South Australian Firearms Branch. Sergeant Kilford has stated the following, "I have been involved in the adjudication and issue of firearms licences for a period in excess of 15 years as the Firearm Adjudication Sergeant, mainly dealing in the more unusual applications and refusal and cancellations of licences and legislative matters. I advise that to the best of my knowledge there has never been any cases in South Australia where a handgun licence has been issued for the purpose of euthanasia of fish. If such an application were to be made in this State it would be vigorously opposed as a purpose of use in that practice would be highly dangerous to the safety of any person in the vicinity and possibly the vessel itself. 27 Pages 15 to19 of the 'Handbook on Firearms Safety Awareness' are annexed to D.I. Hoffman's report. 28 D.I. Hoffman conceded that he has no particular expertise in relation to the use of firearms in the fishing industry. He also conceded that the South Australian industry practices with respect to the use of firearms are different to those found in the NSW industry. D.I. Hoffman agreed that police officers use firearms on ocean vessels but asserted that the training and accountability of those officers is extremely high and they do not use firearms while undertaking fishing activities. He also conceded that the circumstances of Mr Braithwaite's use of a to kill the fish involved firing over a distance of less than a metre and that in those circumstances there was little likelihood of ricochet. Findings 29 The question for determination is whether, based on all the evidence, the Commissioner's decision to refuse Mr Braithwaite's application for a category H firearms licence is the correct and preferable decision. In deciding this question it is necessary to ascertain the core features of businesses of the type that are the subject of Mr Braithwaite's application; whether Mr Braithwaite has a "genuine reason" as required by section 12 of the Act; and the existence or otherwise of a "special need" for the purposes of section 16 of the Act. 30 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues: a) that Mr Braithwaite has held a Category AB firearms licence since 1998; b) that Mr Braithwaite held a Category C firearms licence from 14 April 1998 to 15 January 2003; c) that Mr Braithwaite is a current licensed Commercial Fisherman; d) that Mr Braithwaite is a person of good character. e) that it is the opinion of D.I. Hoffman that the use of long-arm firearms are more suitable and appropriate than handguns in carrying out duties as a commercial fisherman; 31 The circumstances of this matter are in many ways comparable to those considered in the matter of Snape. At paragraph 53 of the Snape decision, Rice JM stated: "I find that the relevant core features of the type of business that is the subject of this application is: the landing of sharks, the need to do so safely, and the consequent practice of shooting the shark before landing it. Implicit in this is the further core requirements that the shooting be done reliably and safely." 32 The Appeal Panel in Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 ("the Snape appeal") in dealing with an appeal from the decision in Snape considered this particular finding. The Appeal Panel observed: "44 [Ms. Paterson, solicitor for the Commissioner] argued also that two of the Tribunal's findings, at [49 – 51] – namely, (a) as to the scale of the Respondent's business takings and (b) to the effect that catching sharks was an 'integral part' of his business – should not be permitted to stand because the reasoning underlying them was not made apparent. She claimed that procedural fairness was therefore denied to the Appellant and that there was no independent lay evidence or expert evidence on which these findings could be supported. 45 In response, Mr Levet relied on the reasoning of the Tribunal, notably in distinguishing between businesses which targeted different types of fish and between businesses of different sizes (see its judgment at [41 – 44, 59]). He argued that if, in assessing 'core features' of a fishing business in order to determine whether a firearm was necessary for its conduct, no distinction was drawn between businesses of different sizes, the Appellant could effectively prevent small-scale businesses, such as that of the Respondent, from operating in the way that they wished. 46 Ms Paterson's response to this submission was that a broad proposition of this nature should not carry any weight where in the particular circumstances of the case an outcome such as it envisaged would not in fact occur. She relied on Osborne for the principle that factors such as Mr Levet mentioned were features of the way in which the Respondent carried on his business, not of the type or 'core features' of this business. 47 Mr Levet argued also that Ms Paterson's criticisms of the Tribunal's finding regarding the takings of the business and the role played within it by fishing for sharks, even if well founded, would have no significant impact on the issues for determination in the case. 48 Our conclusion again is that Mr Levet's submissions, broadly speaking, should prevail. We would agree with Ms Paterson that some of the factors which the Tribunal treated as 'core features' – specifically, the 'need' to land sharks 'safely' and to shoot sharks 'safely and reliably' – are probably better seen as reasons why the conduct of the Respondent's business, having regard to the other matters identified as 'core features', required him to possess and use a pistol. But on the question of prime importance – that is, whether it was correct in assessing 'core features' to take account of the particular types of fish targeted, the methods appropriate to the catching of such fish and the scale of the business – we discern no error on the part of the Tribunal." 33 Mr Braithwaite's circumstances differ from those of Mr Snape in that Mr Braithwaite is assisted by his wife, who steers the boat, and he lands tuna, sharks and marlin, not merely sharks. After taking account of the particular types of fish targeted, the methods appropriate to the catching of such fish and the scale of the business I have reached a similar view to those that Rice JM reached in Snape. The relevant core features of the type of business that is the subject of this application are the landing of tuna, sharks and marlin. 34 The second question for determination is whether, for the purposes of section 12 of the Act, possession of a pistol is directly required for a business with these core features. 35 Mr Braithwaite's business inherently involved the killing of tuna, sharks and marlin. Guided by the Appeal Panel in the Snape appeal, I am satisfied that the need to land the tuna, sharks and marlin safely and to shoot those fish safely and reliably are reasons why the conduct of Mr Braithwaite's business requires him to possess and use a pistol. His use of a pistol would render more safe and efficient the way in which he kills those fish. 36 The Commissioner suggested a number of alternative ways of carrying out the business in an attempt to demonstrate that a category H firearm was not necessary. Mr Braithwaite has shown each of those methods as being inadequate. Mr Braithwaite's evidence satisfies me of the inadequacy of a shotgun or single-shot long arm firearm in meeting the business's core requirements. 37 I am satisfied from Mr Braithwaite's evidence, including his account of his experience and the photos of his boat and some of his catch, that a pistol is necessary to the conduct of the business that is the subject of this application. 38 The next question for determination is whether, for the purposes of section 16 of the Act, there is a special need for Mr Braithwaite to possess or use a pistol. In Snape Rice JM stated at paragraph 63: "Satisfied that there is a 'genuine reason' for purposes of s12, I turn to the question of whether there is a 'special need' as required by s16. It seems to me, however, that the two questions must conflate when, as is the case here, the firearm for which the licence is sought is a pistol." 39 At paragraph 72 of the decision he stated: "72 I have found above that the business of being a sole fisherman for sharks necessitates the use of a category H firearm. Other type of fishing business which take sharks will necessitate the use generally of a firearm. The special need that Mr Snape has for a category H firearm arises from the fact that the business is that of a sole fisherman. The business of fishing for sharks necessitates the use is a firearm, but perhaps not a category H firearm in all circumstances. The particular nature of Mr Snape's fishing business is such that his need is a special need, satisfying the tests in both s12 and s16." 40 The Appeal Panel in the Snape appeal considered argument in relation to these statements and observed at paragraphs 50 to 56: "50 In elaborating on this argument, Ms Paterson drew our attention to a number of statements by the Tribunal, in its judgment at [65 – 71], that appeared to elide the two requirements in this way. Some of these are quoted above in the present judgment, at [26 – 28]. 51 In response to a question from the Appeal Panel, Ms Paterson was unable to cite a case in which a 'special need' for a pistol under s 16, as distinct from a 'genuine reason' based on a pistol being 'necessary in the conduct of the applicant's business' under s 12, had been identified in the cases decided under the Act. 52 Mr Levet contended in response that the Tribunal's observation of prime importance on this matter was the last sentence of [72]. This was as follows: 'The particular nature of Mr Snape's fishing business is such that his need is a special need, satisfying the tests in both s12 and s16.' What the Tribunal there said was, he argued, that in this case the evidence that established 'genuine reason' under s 12 also served to establish a 'special need' under s 16. The Tribunal was not making general pronouncements about the operation of the two sections. It was significant, he claimed, that it was only under the heading 'business/employment' in the Table to s 12 that the term 'necessary' was used. 53 We agree with Ms Paterson that the earlier statements by the Tribunal did include the proposition that in cases within the 'business/employment' category the two separate statutory requirements were, in effect, merged into one. We do not think that they can be dismissed as easily as Mr Levet claimed. 54 We do, however, accept Mr Levet's interpretation of the final sentence of paragraph [72] of the judgment. Treated as an observation about the circumstances of this particular case, it provided a sufficient basis for the Tribunal's statement that, without giving any further consideration to the evidence that had already been outlined in connection with s 12, it could reach the conclusion that the additional requirement of 'special need' under s 16 had been satisfied. 55 The fact that, in earlier paragraphs, the Tribunal made a generalisation about the relationship between the two provisions that might not stand up to close scrutiny does not, in our opinion, constitute an error of law justifying our intervention. In saying this, we take into account the fact that Ms Paterson could not draw our attention to any case law illustrating the difference between the relevant phrases in the two provisions, and did not suggest any instance of an additional 'special need' that the Respondent should have demonstrated. 56 For these reasons, the Appellant's third ground of appeal must be rejected." 41 I understand from these statements that the Appeal Panel considered that evidence that satisfied the requirements of section 12 of the Act could also satisfy the requirements of section 16 of the Act. I find that to be the case in the circumstances of this matter. It is my view that the particular nature of Mr Braithwaite's fishing business is such that his need is a special need, satisfying the tests in both section 12 and section 16 of the Act. There seems little point in repeating the evidence here. 42 Accordingly, I am satisfied that Mr Braithwaite has met the requirements of section 12 and section 16 of the Act and the Commissioner's decision to refuse the licence application should be set aside. 43 That leads me to the consideration of the issue of safety. Section 11(3) of the Act provides that a licence must not be issued unless the Commissioner is satisfied that the applicant … "can be trusted to have possession of firearms without danger to public safety". Further, section 11(3A) of the Act provides that the Commissioner may require an applicant for a licence to complete such firearms training and safety courses as are approved by the Commissioner in relation to the category of licence concerned. Section 11(7) of the Act provides that the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. 44 The Commissioner has raised issues of concern in relation to Mr Braithwaite's ability to use a firearm safely while carrying on his business. The issue of public safety was also raised in relation to potential risk to Mr Braithwaite's wife. The matter of compliance with OH&S legislation was raised as part of these arguments. On the evidence I am not persuaded that there is any failure to comply with the OH&S legislation. However, there is cause for concern in regard to the safe use of firearms on seagoing vessels. My concerns is not limited to Mr Braithwaite's knowledge or ability but to the general use of firearms in such circumstances. 45 On the evidence before me there is no question that Mr Braithwaite has a long history of safe firearm use. There is also little doubt that he has long experience in the use of a long-arm as part of his business practices. However, I am persuaded by the evidence of D.I. Hoffman of the potential dangers associated with the use of a pistol in circumstances such as those with which Mr Braithwaite is likely to be confronted. Mr Braithwaite conceded that he has not undertaken firearms training and safety courses in relation to the use of pistols. It is my view that he should not be issued with the licence he seeks without undertaking such courses. 46 In the circumstances, it is appropriate that I remit the application for consideration by the Commissioner subject to the recommendation that the licence be granted when Mr Braithwaite has completed such firearms training and safety courses, as the Commissioner considers appropriate for this category of licence.