Appeal Panel - Internal CITATION: Commissioner of Police, New South Wales Police v Snape (GD) [2004] NSWADTAP 15 APPELLANT PARTIES: Commissioner of Police, New South Wales Police RESPONDENT Ronald Snape FILE NUMBER: 039083 HEARING DATES: 12/03/2004 SUBMISSIONS CLOSED: 03/12/2004 DATE OF DECISION: 05/13/2004 Snape v Commissioner of Police [2003] NSWADT 262 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Robinson MA - Judicial Member; Bolt M - Non Judicial Member CATCHWORDS: relevant/irrelevant considerations - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 033079 DATE OF DECISION UNDER APPEAL: 12/12/2003 LEGISLATION CITED : Firearms Act 1996 Osborne v Commissioner of Police [1999] NSWADT 86 CASES CITED: Osborne v Commissioner of Police Service (GD) [2000] NSWADTAP 10 Snape v Commissioner of Police [2003] NSWADT 262 APPELLANT REPRESENTATION: D Paterson, solicitor RESPONDENT B Levet, barrister ORDERS: Appeal dismissed. REASONS FOR DECISION Introduction 1 This is an appeal against a decision of the Tribunal, constituted by Mr S Rice, Judicial Member, setting aside a decision made by the Appellant, the Police Commissioner, under the Firearms Act 1996 ('the Act'). 2 The Appellant's decision was that an application by the Respondent, Mr Ronald Snape, for a category H licence under the Act should be refused. On 22 December 2003, this Panel dismissed an application by the Appellant for an interim order staying the operation of the Tribunal's decision. Relevant legislation 3 Under s 8(1) of the Act, a category H licence authorises the licensee to possess and use a registered pistol but only 'for the purpose established by the licensee as being the genuine reason for having the licence'. 4 The Appellant's power to issue licences is conferred by s 11(1) of the Act. The ensuing subsections of this section set out some conditions that must be observed. Subject to one minor issue that we will consider at the end of this judgment, it was not disputed that the Respondent satisfied these conditions. 5 These proceedings are principally concerned with some further statutory conditions restricting the grant of licences. These are contained in ss 12 and 16 of the Act. 6 The relevant parts of s 12 are as follows:- 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. Table …. Reason: 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. 7 A number of other 'reasons' are set out in the Table to s 12. By way of illustration, the headings for these include 'sport/target shooting', 'recreational hunting/vermin control', 'primary production' and 'firearms collection'. 8 The relevant provision in s 16 is subsection (1). This is as follows:- 16 Category H licences—restrictions on issue (1) 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. 9 The first of the two significant issues in dispute was whether the Respondent had a 'genuine reason' for possessing and using a pistol within the meaning of s 12(1). The ground that he put forward, appearing under the heading 'business or employment' in the Table to s 12, was that it was 'necessary in the conduct of' his 'business'. 10 The second significant issue in dispute was whether the Respondent had shown that there was a 'special need' for him to possess or use a pistol in the conduct of his business, as required by s 16(1)(b). Relevant features of the Respondent's business 11 As explained in the Tribunal's judgment (Snape v Commissioner of Police [2003] NSWADT 262) at [23 – 30, 46 – 52], the Respondent carried on the business of catching fish, including sharks. He did this by himself, not far from the shore, in a small dinghy powered by outboard engines. 12 Records of his catch between January 1998 and June 2001 showed that it regularly included sharks during the seasons (approximately November to March) where they were available. He said that during these seasons they were his preferred catch. Since July 2001, he had not caught any sharks. The reason was that he had handed in a rifle, as being an illegal weapon, and was awaiting the grant of a licence to use a pistol. 13 On the ground that it was no longer feasible for him, as a sole fisherman, to concentrate on other species of fish, the Tribunal found, at [50], that 'to sustain his business he must fish for sharks as he was doing until two years ago'. 14 The Respondent testified that it is essential, for safety reasons, to kill certain species of relatively large sharks before pulling them on board. During the period when he had a rifle, he used it for this purpose. But he found it awkward and dangerous to hold a shark on a fishing line with one hand and reach for and use a loaded and cocked rifle with the other hand. In order to kill the shark, he might have to reload and shoot a second time. In short, while a rifle could be used on a larger fishing boat, with a crew of two or more people, it was distinctly unsafe and unsatisfactory for him as a sole operator. 15 At the Tribunal hearing, counsel for the Appellant suggested to him that other methods of bringing sharks to the shore, not involving the use of a firearm, were available to him. One of them was that he could gaff them and tie them to his boat. His response was that all of them, for different reasons, were impracticable or dangerous or in one instance (involving the use of a spear-gun) illegal. The Appellant did not tender evidence in opposition to these assertions by the Respondent. At [52], the Tribunal recorded a finding that it was 'the invariable practice within the industry' to kill sharks by shooting them while still in the water. The Tribunal's decision 16 In construing the requirement in the Table to s 12 that the firearm for which a licence is sought must be 'necessary in the conduct of the applicant's business or employment' the Tribunal referred, at [17 – 20], to a decision of the Appeal Panel of this Tribunal, Osborne v Commissioner of Police Service (GD) [2000] NSWADTAP 10. At [22], it formulated as follows the questions that, 'guided by Osborne', it considered relevant in this matter:- … the questions then in this matter are, first, 'what are the "core features" of businesses of the type that are the subject of Mr Snape's application?' and secondly, 'is possession of a pistol "directly required of" that business?'. The focus is "on the type of business activity undertaken by the applicant, rather than the specific way the applicant undertakes that business". 17 At [41 – 43], in the course of considering the evidence that we have outlined above, the Tribunal declined to define the business conducted by the Respondent by a broad label such as 'commercial fishing'. Pointing out that fishing for different species of fish required different techniques and equipment, it said that a more detailed description was needed in order to identify 'core features' against which the need for a firearm could be assessed. 18 The Tribunal also said that the scale of the business needed to be taken into account. At [44], it observed that 'the business of a sole trader is a very different thing, with different "core requirements" from the business of a large commercial enterprise'. 19 At [51], it stated the following conclusions:- On the basis of this material and Mr Snape's evidence at the hearing, I find that fishing for sharks is a part of his business. I find that, for purposes of s12, the type of business that is the subject of this application is that of a sole fisherman who fishes alone in a dinghy with outboard engines, not far from shore, for shark among other fish. 20 At [53], the Tribunal proceeded to define the 'core features' of the business:- 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. 21 The Tribunal then considered whether possession of a pistol was 'directly required of' a business with these 'core features'. It rejected three reasons advanced by the Appellant for saying that it was not 'directly required'. 22 The first of these was that the Respondent could gaff the sharks that he caught and tie them to the boat. The second was simply that the Respondent had caught sharks for many years without using a pistol. 23 At [57], the Tribunal rejected these two propositions in the following terms:- With or without this refinement, the first of the Commissioner's two answers to the 'but for' test – that sharks could be gaffed – is contrary to Mr Snape's unanswered evidence as to the catching of sharks, and I reject it. As for the second of the Commissioner's two answers to the 'but for' test – that Mr Snape has been taking sharks without a pistol for many years – he has, in so doing, not been meeting the core requirements of his business: reliability and safety. It is about time that he did. 24 It is convenient to quote in full the Tribunal's formulation of the Appellant's third submission on this question and its response, rejecting the submission:- 58 The Commissioner argued that the necessity arises not from the nature of the business but from a choice Mr Snape has made as to how he goes about the business. It is argued that a category H firearm is not necessary in Mr Snape's business, but that he makes it necessary by choosing to fish alone "solely for financial gain". 59 I disagree. It follows from my finding above that fishing alone is the very nature of the business that Mr Snape is undertaking that the Commissioner is mistaken in categorising Mr Snape's sole operation as a choice he makes "for financial gain". That is the nature of Mr Snape's business. He is a 'sole trader'. To suggest that he could choose to fish differently is akin to suggesting that a corner store operator could choose to run a department store instead. If he was a fisher on a large boat with crew the core features of the business would differ in key respects. While broadly within the area of activity called "commercial fishing", the needs of a business cannot be understood until its type is defined and understood. In fishing alone Mr Snape has chosen a type of business, not how to go about a business. 25 Having rejected these three submissions of the Commissioner, the Tribunal concluded, at [62], that the Respondent had 'a genuine reason for a category H firearm within the meaning of s 12'. 26 The Tribunal then gave consideration to the additional requirement in s 16, namely, that there was a 'special need' for the Respondent to possess or use a pistol. At [65 – 68], it expressed the opinion that because applicants for firearm licences in the business/employment category had to prove, as their 'genuine reason' for possessing and using the firearm, that this was 'necessary in the conduct of' their business or employment, the further requirement of 'special need' in s 16, applying to category H licences, was in effect redundant. 27 At [68], it said that in this situation 's 16 has no work to do when the test of necessity under s 12 has already been satisfied'. Stating, however, at [70] that s 16 was clearly 'a vital part of Parliament's regime to ensure that the strictest tests are in place to control the use and possession of firearms', it reached the conclusion at [71] that the appropriate approach was to 'apply the two tests concurrently'. 28 The Tribunal then set out at [72] the result of adopting this approach in the present case:- 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 [ sic ] 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. 29 The Tribunal then concluded, at [73], that the Respondent's circumstances satisfied the requirement of the Act for the issue of a category H licence and that the Appellant's decision to refuse his application should therefore be set aside. 30 The Appellant's principal grounds of appeal were that the Tribunal had erred in law in three respects, warranting intervention by us pursuant to s 113(2) of the Administrative Decisions Tribunal Act 1997. The first two of these grounds arise out of s 12 of the Act and are closely linked, but can be severed for the purposes of discussion. We will deal with the three grounds in turn. 'Necessary in the conduct of' a business 31 The first ground of appeal was that the Tribunal, through misapplying the principles stated in Osborne v Commissioner of Police Service (GD) [2000] NSWADTAP 10 and failing to take account of the provision in s 12(2) that a person does not have a 'genuine reason' if he or she intends to possess and use the firearm for 'personal protection or the protection of any other person', erred in finding that a pistol was 'necessary in the conduct of' the Respondent's business. 32 Ms Paterson, appearing for the Appellant, relied on the ruling, made by the Appeal Panel in Osborne at [44 – 45], that what should be determined is whether the firearm for which a licence was sought was necessary for the conduct of 'the type of business activity undertaken by the applicant', as opposed to being necessary for 'the specific way the applicant conducts that business'. The preferred approach was described by the Panel as implementing the 'narrower view' of the phrase 'the applicant's business' in the Table to s 12 and as requiring determination of the 'core features' of businesses of the relevant type. 33 The Panel commented at [46] that if the broader approach were adopted, focusing on the particular way an applicant carried on the relevant business, this would both 'lead to a greater number of firearms in the community' and 'mean that types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted'. Such an interpretation, it said, would 'defeat the objects of the legislation'. 34 In Osborne, the applicant carried on business as a dealer in firearms. He frequently carried large quantities of firearms in his car, in which he sometimes drove to remote country locations. He applied for a pistol licence, on the ground that he was under a constant risk of being held up by armed or unarmed criminals attempting to steal his firearms. 35 His application was refused by the Commissioner of Police. The Tribunal rejected his application for review (Osborne v Commissioner of Police [1999] NSWADT 86). The Tribunal held, at [23], that even though possessing a firearm was, in the applicant's view, 'desirable in order to prevent firearms from falling into the wrong hands' he did not 'need it to conduct his business'. The Tribunal mentioned (at [17 – 18]), but did not explicitly rely on, the provision of s 12(2) to the effect that neither 'personal protection or the protection of any other person' nor 'the protection of property' (save in circumstances in the Table to the section' constitutes a 'genuine reason' for possessing and using a firearm. 36 The Appeal Panel dismissed the appeal, holding that there was no error of law in the Tribunal's decision. In applying the principles that we have set out above, it held at [48] that the applicant's need to carry a pistol arose from the way that he had chosen to undertake his business. It was on account of this choice, the Panel said, that he had to travel alone and carry dangerous goods to isolated locations. But it was 'not essential to the process of dealing in firearms to do business in this way'. 37 At [42], the Appeal Panel observed with reference to s 12(2) that 'personal protection is never a genuine reason' and that the same applied to property protection unless circumstances within the Table to s 12 could be shown. At [50], it suggested that these circumstances would be 'rare'. 38 Ms Paterson submitted that the Tribunal, despite its purported reliance on the Appeal Panel's judgment in Osborne, had in fact given consideration to whether a pistol was necessary for the 'specific way' in which the Respondent conducted his business. Furthermore, in holding at [53] that it was a 'core requirement' that the shooting of the sharks be done reliably and safely, the Tribunal had in effect treated personal protection as a 'genuine reason', thereby contravening s 12(2). 39 The principal submission made by Mr Levet, counsel for the Respondent, in reply to this argument was that, in direct contrast to the firearms dealer in Osborne, the Respondent in this case would be using a pistol for an activity – killing sharks – that formed an integral part of his business of commercial fishing. Unlike, for example, an abalone diver who encountered a shark while in the sea, the Respondent would not be using the pistol to protect himself against sharks, but to perform an essential step in the process of catching sharks. 40 This crucial factor, in Mr Levet's submission, distinguished the Respondent's case from that of the applicant in Osborne. In contrast to that case, it could not be said that the Respondent was seeking a pistol licence so that he could carry out a generally safe business in an unsafe way. His business inherently involved the killing of sharks. His use of a pistol would render more safe and efficient the way in which he killed sharks. 41 This element in the case, Mr Levet argued, also rendered s 12(2) inapplicable. The Tribunal's observation that, in determining whether a pistol was necessary in the conduct of his business, the issue of safety should be borne in mind was not tantamount to saying that the reason for using a pistol was that of 'personal protection'. It was just one of a number of factors, which included also speed and reliability, that had to be taken into consideration in determining whether use of a pistol to kill the sharks that had been caught was 'necessary in the conduct of' a business of the type carried on by the Respondent. 42 In our judgment, the arguments put by Mr Levet must prevail. For the reasons that he gave, this case is distinguishable from Osborne and does not fall within s 12(2). It would have been preferable if the Tribunal's judgment had mentioned this provision of the Act and given reasons why it was inapplicable. But its failure to so is not of itself is not an error of law justifying our intervention. The 'core features' of the relevant type of business 43 In relation to this second ground of appeal, Ms Paterson submitted first that what the Tribunal described at [53] as 'core features' – 'the landing of sharks, the need to do so safely,… the consequent practice of shooting the shark before landing it… and the further core requirement that the shooting be done reliably and safely – were not 'core features' at all, but consequences of the type of business being conducted. 44 She 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. The requirement of 'special need' 49 The principal argument urged by Ms Paterson under this heading was that the Tribunal misinterpreted the relevant legislation by erroneously treating the separate requirements of 'genuine reason' under s 12 of the Act and 'special need' under s 16 as if they were, in effect, one single requirement when the basis put forward under s 12 was that a pistol was 'necessary in the conduct of the applicant's business'. In consequence, she submitted, it failed to treat the latter requirement as something different from, and additional to, the former requirement. 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. Remaining matters for consideration 57 A further matter put to us by Ms Paterson was that at the hearing at first instance counsel for the Appellant incorrectly conceded that the Respondent was not required to complete the form of firearms safety and training course that is stipulated by s 11(3)(b), in conjunction with regulations under the Act, for the holder of a category H licence. The Tribunal noted this concession at [6], adding that 'completion of the course is required only "of a person who has never held a licence"'. 58 Ms Paterson advised us that the true position was that because the Respondent had previously held a licence within a category other than category H, he was in fact required to complete a course specifically stipulated for holders of category H licences. He had, however, completed this course. 59 We agree with Ms Paterson that the statement made by the Tribunal, relying on a concession made by counsel, was incorrect and are prepared, at her request, to record this in the present judgment. 60 Ms Paterson made two other submissions, to the effect that the Tribunal drew incorrect inferences from (a) the wording of a form of application for a firearms licence issued by the Appellant (see [24]) and (b) a video shown at the hearing, which purported to demonstrate the use of a rifle by the Respondent to kill a shark (see [27]). She did not address either these issues at length before us. It will suffice for us to say that in relation to neither of them did she persuade us that the Tribunal committed an error of law. Our conclusion 61 For the foregoing reasons, the appeal must be dismissed. 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