dATE OF DECISION 10 AugUST 2005

 

    (Download the Decision)

 

COMMENTARY

This was an appeal to the District Court on a question of law pursuant to s.149 of the Weapons Act 1990 from a Magistrate's decision upholding the ruling of Richard Bruce Woolcock, an authorised officer in the employ of the Weapons Licensing Branch.  The authorized officer had refused Darryl White's application to have three weapons (two Browning semi-auto pistols  and a Jennings semi-auto pistol) transferred from his Category H concealable firearms license to his Collector’s License.

The authorised officer had refused to process the transfer as he was not satisfied that the three weapons in question were ‘collectable firearms’ within s.77(2) of the Act.  Nor was he satisfied "that the Appellant had a prolonged and genuine interest in the study, preservation or collection of firearms” (s.138(3) of the Act).

In slightly more plain terms, the WLB party line was that  having a concealable licence isn't sufficient enough justification to decide to collect modern weapons.

White’s lawyers (A. J. Kimmins instructed by Ryan & Bosscher) submitted that there was an error of law on the part of the Magistrate because she had completely misconceived the question required to be answered on the appeal before her. The Police conceded that the Magistrate might have applied a wrong test,  "but only in respect of one of the 3 subject weapons." They argued that applying the wrong test to the Jennings semi-auto pistol should not taint the entire decision.

(Strange, but when I went to school, “one out of three” was not a pass mark.)

The matter came on for hearing in the District Court before Her Honour Ryrie DCJ on 4 July 2005, and at the appeal hearing a coalition of Approved Societies sought, but were denied, intervener status in support of the Collector.

The District Court agreed with White, and would have none of the WLB submission.

The Magistrate had asked herself the wrong question (ie ‘whether the Appellant had a prolonged and genuine interest in the study, preservation or collection of firearms’) the District Court said, and there had been an error in law.   Because the authorized officer had determined that each of the subject weapons were ‘modern handguns’ he too had consequently applied the test set out in s.138(2) of the Act to each of the three subject weapons in question, and he too was in error.

It was still necessary, though,  to consider whether there had also been an error of law in the conclusion of the Magistrate (“that each of the subject weapons were not ‘collectable firearms’ within the definition of s.77(2) of the Act. (see Phillips v Woolcock (2002) QDC 035 at para 18”).

The District Court considered that on any view of the reasons which she had given, the Magistrate had not given any weight to the fact that as a result of a successful application made earlier by White (ie his application for the issue of a Collector’s License (weapons) in respect of all 3 subject weapons) he was, after all, a licenced collector.

As such he was entitled “to have possession of registered category H weapons that were collectable firearms (the Court’s emphasis) manufactured on or after 1 January 1901 (including modern handguns) made temporarily inoperable in a way as prescribed under section 8 of the Weapons Act 1990 as long as he remained a financial member of an approved historical society for the term of the licence”.

In other words,  the issue of the Collector’s Licence in respect of the subject weapons had already been deemed by the Act to establish, for the purpose of that license, ‘collectable firearms’ within s.77(2) of the Act.

The District Court felt that the Magistrate should have taken that fact alone to be of some real significance, and had failed so to do.

Did the Magistrate consider whether each of the firearms was a ‘collectable firearm’ within the relevant definition?

No, she hadn’t.  Instead she had considered that simply because White had not ‘collected’ any other weapons of a similar type before, had only collected the three subject weapons (and four other weapons) for use for target or sport shooting and had only applied for a collector’s license in July 2003, then those factors precluded a finding that he had demonstrated that the subject weapons in question were ‘collectable’.

The District Court expressed the view that the Magistrate must have arrived at her ultimate conclusion because she did not give any proper consideration to the available evidence in order to determine whether or not the subject weapons in question were ‘collectable firearms’ within the definition of s.77(2) of the Act.

 The Magistrate had, the District Court found,  

“taken into account facts and circumstances which were more relevant to the question of whether or not the Appellant had not demonstrated a prolonged  and genuine interest in the study, preservation or collection of firearms (the s.138(2) test).”

In doing so, the Magistrate had applied the ‘wrong’ test, and the decision was erroneous.

Issues of Public Interest

Of particular interest to Collectors is the District Court's comment on the manner in which the Magistrate had also referred to questions of ‘public interest’ and of the need to balance  ‘public interest’ against the rights of the Collector.

“It is difficult to see that this issue had any real significance in circumstances where the Appellant had already held several licenses lawfully under the Act in respect of the 3 subject weapons in question without blemish, and had also received a determination that the 3 subject weapons in question were ‘collectable firearms’ for the purpose of his Collector’s license (weapons), which took effect from the 1st March 2004.”

There was, the District Court said, more than adequate evidence before the Magistrate which, had it been properly considered, would have led to the only conclusion open to the Magistrate, namely that White’s appeal ought to have been allowed.

Costs against the WLB awarded

Having decided that there was a error of law on the part of the Magistrate,  the District Court followed the observations of His Honour McGill, DCJ in Phillips v Woolcock and awarded costs against the WLB.

WLB are not happy and resolve to appeal

Reliable reports have it that on 18 August, the  Queensland Police advised a Magistrate during the course of other proceedings not immediately linked to these, that it was intended to appeal against this decision to the Supreme Court.

If that’s true,  (and we all know that no one ever lies to Magistrates)   the network of approved societies needs to get back into gear to support the defence of the White v Woolcock decision.

   

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