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  4. Messina v Queensland Police Service – Weapons Licensing - [2024] QCAT 111

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Messina v Queensland Police Service – Weapons Licensing[2024] QCAT 111

Messina v Queensland Police Service – Weapons Licensing[2024] QCAT 111

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Messina v Queensland Police Service – Weapons Licensing [2024] QCAT 111

PARTIES:

daniel michael messina

(applicant)

v

Queensland Police Service – Weapons Licensing

(respondent)

APPLICATION NO/S:

GAR494-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 March 2024

HEARING DATE:

23 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

Application dismissed

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – where the applicant applied for a Category D weapons licence for a semi-automatic rifle – where the applicant already held a Category A, B and C weapons licence – where the applicant was a cane farmer – where the applicant claimed the Category D weapon was necessary to cull feral pigs damaging his cane land and crop – where the applicant claimed his livelihood was being affected – where the application for a Category D weapon was refused by police on the grounds the applicant’s existing licence entitled him to use weapons sufficient for the purpose of ground shooting pigs – where an object of the legislation is to prevent the misuse of weapons and that object is achieved in part through prohibiting the possession and use of semi-automatic weapons except in special circumstances – where the applicant showed no special circumstances applied to his situation

Weapons Act 1990 (Qld), s 3, s 4(a), s 13(5)

Lawler v Queensland Police Service [2022] QCAT 309

Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309

APPEARANCES & REPRESENTATION:

Applicant:

D Neuendorf, Robert Bax & Associates

Respondent:

Snr Sgt Ayscough, A/Sgt Bauer, Weapons Licensing

REASONS FOR DECISION

  1. [1]
    The applicant, Mr Messina, holds a weapons licence which entitles him to use category A, B, and C class weapons.
  2. [2]
    He applied to Queensland Police Service – Weapons Licensing (‘QPS’) for a category D weapons licence but the application was rejected. He has applied to the Tribunal to review that decision.

Background

  1. [3]
    Mr Messina is a self-employed cane farmer operating several cane farms in far North Queensland. He has had long connection with cane farms, being born on one, and has worked directly or indirectly in the cane farming industry for most of his life. He has held a weapons licence for approximately 30 years.
  2. [4]
    At the present time he owns four cane farms. For the last 6 years or so, whilst farming his own land, he has also worked full-time Monday to Friday for Queensland Sugar Ltd as a Grower Relationships Manager. He has also earned accreditations in crop analysis. His goal is to grow sufficient cane to make farming a full-time venture. With owning four cane farms has come large mortgages, and he needs his present second income to meet his current financial liabilities.
  3. [5]
    He maintains there is a very serious feral pig problem in North Queensland including in his local area. To control them he says he needs to cull them and to do that effectively he maintains he needs a Category D weapon, a semi-automatic large calibre rifle. The feral pigs cause significant damage to his cane lands and cane crops, and that directly affects his income and, long-term, his viability as a cane farmer. The problem is worsening.
  4. [6]
    In support of that claim he has provided the Tribunal with letters written by State Member of Parliament Shane Knuth and Federal Member the Honourable Bob Katter. In the letters both Members point out that feral pigs pose a constant and increasing threat to the agricultural industry, particularly cane farming businesses in far North Queensland.
  5. [7]
    The claim that feral pigs are a significant problem and they need to be controlled is not contested by QPS. Nor that they damage cane crops and land. However QPS challenge Mr Messina’s claim that he needs a Category D weapon to effectively control pigs.
  6. [8]
    Mr Messina says he needs a large bore centre fire semiautomatic rifle to cull them when they emerge from the high cane and move out into the open areas of the farms, the harvested paddocks and fallow fields. His best opportunity to cull them is when they congregate in the open fields in mobs of between 5 to 10.
  7. [9]
    That means however they will be some distance from him. Because they are at a distance, a Category C weapon (shotgun) is of little use. He adds somewhat as a non sequitur that a shotgun is also of little use to him in the tall cane where the pigs often hide. The cane is very dense and they cannot be seen. That means one must get very close to them to use a shotgun and that can be very dangerous. He says pigs become particularly aggressive when searching for food and will regularly charge a person.
  8. [10]
    He stated at hearing that he knew of other farmers using semi-automatic rifles to shoot pigs in cane fields. QPS challenges the accuracy of that statement.
  9. [11]
    He says he has tried trapping pigs, but they are smart and avoid traps. He has engaged people that he describes as weekend hunters to shoot pigs, he has tried hunting with dogs, and the local canegrower association has hired a professional shooter to cull via helicopter. The last was expensive however and not a feasible option for him. He does not agree with baiting because it also endangers other animals such as cassowaries. None of those things have worked, he maintains.
  10. [12]
    QPS says there are various Category A, B, and C weapons that would be suitable for what Mr Messina wants to do. Amongst them are a lever action shotgun with a magazine capacity of less than 5 rounds, a straight-pull bolt action shotgun and a linear repeating firearm where follow up rounds are chambered for firing by way of a release button after a shot is fired. QPS says these weapons allow for rapid follow-up shots. Many are available with integral tube magazines or detachable magazines which allow for quick reloading.
  11. [13]
    Mr Messina disagrees. He says using a large calibre semi-automatic rifle will allow him to discharge up to 25 shots in rapid succession. That will mean he can eradicate a large number of pigs all at once. He claims there is a delay between shots with each of the weapons suggested by QPS.
  12. [14]
    QPS do not challenge the assertion that the semi-automatic would be a fast weapon to use, but QPS suggests one of the other recommended weapons, such as a linear repeating rifle, which uses only two movements (backwards then forwards) rather than the four movements of a bolt action rifle (up, back, forward, down) would be fast enough for Mr Messina’s purposes.
  13. [15]
    Mr Messina responds that the weapons suggested by QPS were all unsuitable because after each shot, beside the delay in reloading compared to a semi-automatic, the physical requirement of chambering the next round disrupts the shooter’s line of sight on the animals and the shooter finds it difficult to reacquire an accurate sight on another pig. He suggested he would not kill many pigs with any of the weapons suggested by QPS compared to using a large calibre centre fire semi-automatic rifle.
  14. [16]
    It seems clear that a semi-automatic rifle will reload faster than any of the alternatives suggested by QPS in the sense of number of shots able to be fired over a specified number of seconds. But rapidity of shot is why the use of semi-automatic weapons are so strictly controlled, far more so than the other weapons for which Mr Messina is already licensed.

The legislation

  1. [17]
    By s 3 of the Weapons Act 1990 (Qld) (‘WA’):
  1. Principles and object of Act
  1. (1)
    The principles underlying this Act are as follows—
  1. (a)
    weapon possession and use are subordinate to the need to ensure public and individual safety;
  1. (b)
    public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
  1. (2)
    The object of this Act is to prevent the misuse of weapons.
  1. [18]
    Then by s 4(a):
  1. 4 How object is to be achieved for firearms
  1. The object of this Act is to be achieved for firearms by—
  1. (a)
    prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances….
  1. [19]
    By s 13(5):
  1. 13 Application for licence
  1. …
  1. (5)
    If the reason is an occupational requirement, the applicant must state why possession of a weapon is necessary in the conduct of the applicant’s business or employment.

Consideration

  1. [20]
    The WA states from outset two principles underlying the legislation: that weapon possession and use is subordinate to the need to ensure public and individual safety; and that public and individual safety is improved by imposing strict controls on the possession of weapons.
  2. [21]
    Mr Messina has in the past established that a weapon is necessary in the conduct of his business pursuant to s 13(5) WA. As stated, he has an existing Category A, B and C weapons licence as a primary producer.
  3. [22]
    What he seeks now however is a Category D weapon, a self-loading rifle. That draws particular attention in the legislation. The object of the Act, preventing the misuse of weapons, is achieved in part by prohibiting the possession and use of such a rifle, except in special circumstances.
  4. [23]
    As stated in Lawler v Queensland Police Service [2022] QCAT 309, the effect of sections 3 and 4 WA is to raise a high bar to be crossed to entitle one to a licence to own and use a weapon capable of causing death or injury.[1]
  5. [24]
    The bar is raised even higher where it is a self-loading rifle at issue. Not only must such a weapon be shown to be necessary in the conduct of his primary production business (s 13(5)), but he must also show that special circumstances exist justifying his grant of an exemption from the general prohibition against any Queenslander possessing and using such a weapon (s 4(a)).
  6. [25]
    The word ‘necessary’ used in s 13(5) was addressed in Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309:

21. The word, ‘necessary’ as used in s 13(5), is not defined. Its meaning must properly be interpreted in the context of not only the provision in which it sits, but the Weapons Act and its purpose.[11]  ‘Necessary,’ according to common usage, connotes something which is required, rather than something which is merely convenient or a matter of preference.  In the context, it reasonably connotes that the requirement cannot be met in some other way, and cannot currently be appropriately met.

  1. [26]
    The word necessary is not defined, but neither is what amounts to special circumstances for the purpose of s 4(a) particularised in the WA. The collective phrase is not defined in the Macquarie Online Dictionary, although the words ‘special’ and ‘circumstances’ are separately defined.
  2. [27]
    The word special means as relevant here:

of a distinct or peculiar character;

distinguished or different from what is ordinary or usual: a special occasion;

extraordinary; exceptional; exceptional in amount or degree; especial: special importance.

  1. [28]
    The word circumstances is also defined in a number of ways, but it does not take the matter forward in any meaningful way.

Special circumstances

  1. [29]
    What does Mr Messina say are his special circumstances?
  2. [30]
    He says his financial security is potentially threatened through loss of income caused by feral pigs damaging his crops and fields. He offers no financial evidence of actual loss to support that claim, however. There is a letter from his accountant stating that his core income is derived from cane farming and that he needs a “gun licence” to control pests and vermin associated with these types of businesses. He already has a gun licence, however: that is not in issue.
  3. [31]
    He mentions his aim is to be able to farm full-time. He suggests that that aim is threatened by potential loss of income caused by feral pig damage – again without financial evidence to support that contention. Even if that aim is not achieved, however, Mr Messina will not be unemployed. There is no suggestion that his current full-time employment with Queensland Sugar Ltd is under threat because of the feral pig menace.
  4. [32]
    Mr Messina’s principal contention however is the claimed ineffectiveness of the category A, B, or C weapons presently available to him. He argues that the weapons available, such as large bore centre-fire linear bolt action rifles, do not enable rapid repeat fire which he says is necessary to enable him to kill sufficient feral pigs to bring them under control.
  5. [33]
    He disparages other methods of control, such as trapping and poisoning. He claims they have proven to be ineffective. Attempts at aerial control shooting from a helicopter, he says, has been tried but similarly proven ineffective at controlling significant numbers.
  6. [34]
    Mr Messina relies on a letter written by a professional shooter, Mr Williamson, who also has an interest in a company which runs cane farms and operates a feral pig control business. Mr Williamson states in the letter that he is primary marksman and consultant to the Australian Banana Growers Council which has operated a Federal and State Government funded pig control program for the Cassowary Coast Regional Council. He states he has personally “controlled” over 6,000 pigs in the Shire through aerial shooting, ground shooting, 1080 baiting and trapping.
  7. [35]
    He says feral pigs can cause financial loss to cane farmers.
  8. [36]
    He talks about the ineffectiveness of shotguns at ranges over 20 metres, and that it is impractical to get within 20 metres of feral pigs in the Shire area. I take it he means either the heavy vegetation makes it problematical or it is too dangerous to get that close. He does not elaborate. I also assume he is talking about the Cassowary Coast Regional Council area when he refers to the Shire.
  9. [37]
    Mr Messina provided a number of rates notices for his farms in his material to QPS. They show he is in the Cairns Regional Council area rather than Cassowary Coast Regional Council. It is unclear whether the topography matches in the sense meant by Mr Williamson. One suspects it would be very similar.
  10. [38]
    In his letter Mr Williamson says this about choice of weapon:

I strongly advise that a 308 calibre firearm be used for controlling pigs. This gives the greatest chances of achieving a humane kill. Being able to provide a fast additional backup shot is important, hence while conducting feral animal control, my choice is to use a semi-automatic weapon. This provides the highest level of humaneness and also allows for the potential control of additional animals at a greater effective range. It is common knowledge that 70% of a pig population has to be controlled to have any impact on their numbers. This makes for a difficult task for farmers who have a genuine pig problem.

  1. [39]
    Mr Williamson is a professional shooter. He makes two recommendations. The first is to use a 308 calibre firearm. That ensures, he says, as best able, a humane kill. There are already high calibre weapons available to Mr Messina within scope of his present weapons licence, though they are not semi-automatic rifles.
  2. [40]
    Then Mr Williamson says that being able to provide a fast additional backup shot is important, hence his choice of a semi-automatic weapon. But this additional backup shot is mentioned in the context of ensuring a wounded pig is killed with a second shot as soon as possible. The usefulness of such a weapon to also shoot additional animals at a greater effective range is only one of two commented considerations in favour of use of a semi-automatic rifle.
  3. [41]
    Unfortunately Mr Williamson does not directly discuss whether high-calibre Category B or C weapons such as centre-fire linear bolt action rifles would also be effective to achieve the additional kills at a greater effective range mentioned in his letter.
  4. [42]
    It is noted that Mr Williamson’s letter is generic and addressed simply “To Whom it may Concern”. It is not addressed to Mr Messina, to QPS, or the Tribunal. The letter does not make clear that it is written with Mr Messina’s circumstances in mind. Mr Williamson was not available at hearing to be tested about what he wrote.
  5. [43]
    Further, in his letter, whilst Mr Williamson said he had personally “controlled” over 6,000 pigs, he does not say what numbers were through ground shooting as opposed to the other methods he mentions he has utilised: aerial shooting, 1080 baiting, and trapping.
  6. [44]
    Returning to Mr Williamson’s mention of the utility of a semi-automatic rifle in providing a fast additional backup shot to achieve a humane kill, I note that in Mr Messina’s applications to QPS for a Category D weapons licence, the initial reason given why he was seeking a semi-automatic rifle was to ensure the humane destruction of a shot pig. He said in his application:

Feral pig removal on many occasions has resulted in the pig not being humanely removed because of the timeframe to fire the first shot, stop, reload, check safe to fire a second shot, take aim as it runs off into the bush. I have also experienced a charging boar on a few occasions and it very nearly resulted in serious injury or worse because a second or third shot was needed. A semi-auto centre fire rifle is needed to prevent all this.

  1. [45]
    It was only months later, on 12 October 2021, that Mr Messina emailed QPS to add that feral pig numbers were in plague numbers and impacting his primary production business and a semi-automatic rifle was needed “so the opportunity for multiple eradication in one instance is not lost.”
  2. [46]
    QPS refers the Tribunal to a publication entitled Pestsmart: Ground Shooting of Feral Pigs (PIG003) Standard Operating Procedure. What weight should be given the publication was raised with the parties at hearing. They were asked to address that by written submissions.
  3. [47]
    Mr Messina’s solicitors subsequently wrote to say Pestsmart was a not-for-profit, apolitical, nonpartisan science-based organisation managed by the Centre for Invasive Species Solutions (CISS) receiving funding from the Department of Agriculture, Fisheries and Forestry (‘DAFF’) and other sources. It was not an organisation recognised or sanctioned by the government.
  4. [48]
    Given it receives funding from DAFF one wonders how it can be said that it is not “recognised” by “the government”.
  5. [49]
    In their submissions QPS provided information from the DAFF website about Pestsmart. DAFF stated that on 14 February 2018 the cross-jurisdictional National Biosecurity Committee (NBC) established the Environment and Invasives Committee (‘EIC’) to replace the Invasive Plants and Animals Committee. The EIC’s objectives were stated to be:

The EIC is responsible for providing national policy leadership on the identification, prevention and management of invasive plant, vertebrate and invertebrate species that adversely impact the environment, economy and community…

It also provides national policy leadership on environmental biosecurity more broadly, including engaging with stakeholders and working with other subcommittees to provide the NBC with consistent and consolidated advice on environmental biosecurity issues.

  1. [50]
    Its core objectives includes:

delivering an integrated and effective national approach to the prevention, detection, identification, response and management of emerging and established invasive species that affect the environment, the economy and the community.

  1. [51]
    The Pestmart document entitled Ground Shooting of Feral Pigs (PIG003) Standard Operating Procedure provides as relevant:

Background

Feral Pigs (Sus scrofa) have a significant impact on the environment and agricultural production and are a potential reservoir and vector of exotic diseases. Control methods include poisoning, trapping, exclusion fencing, ground shooting and shooting from helicopters.

Ground shooting of feral pigs is undertaken by government vertebrate pest control officers, landholders and professional or experienced licensed shooters. Although intensive ground shooting operations may reduce the local populations of feral pigs, it is rarely effective for damage control and is not suitable as a long-term control method. Shooting from a helicopter is considered a more humane control method, as mobile wounded animal s can be promptly located and killed. Refer to aerial shooting of feral pigs.

…

Application

Shooting should only be used in a strategic manner as part of a coordinated program designed to achieve sustained effective control.

Ground shooting is often used as a secondary control method after initial reduction of high density pig populations by aerial shooting and/or 1080 poisoning. It is time-consuming and labour intensive and therefore an inefficient method for large-scale feral pig control in Australia.

…

Equipment required

Large calibre high powered rifles (at least equal to .243 performance), fitted with a telescopic sight are recommended….

…

ANIMAL WELFARE CONSIDERATIONS

Impact on target animals

… Shooters should not shoot at an animal unless it is clearly visible and they are confident of killing it with a single shot.

…

The shooter must be certain that each animal is dead before another is targeted.

…

PROCEDURES

…

The target animal should be checked to ensure it is dead before moving on to the next animal. Death of shot animals should always be confirmed by observing the following:

Absence of rhythmic , respiratory movements

absence of eye protection reflex (corneal reflex) or ‘blink’

a fixed, glazed expression in the eyes

loss of colour in mucous membranes (become mottled and pale without refill after pressure is applied)

If death cannot be verified, a second shot to the head should be taken immediately

  1. [52]
    Mr Messina’s stated intention to achieve multiple rapid kills amongst a mob of pigs discovered out in the open before they disperse into neighbouring cane by using a rapid firing weapon seems to face a challenge if one also seeks to achieve the oft-claimed goal (referred to in the Williamson letter, the Pestsmart publication and in Mr Messina’s own application to police) of confirming a humane kill before seeking a fresh target.
  2. [53]
    Mr Messina said at hearing that he will use a thermal imaging nightscope to ensure a pig that has been shot is dead before targeting the next fleeing pig. There is no mention about that as a method to check if a pig is dead in the Pestsmart publication. Mr Messina does not explain how that would work.
  3. [54]
    Indeed his evidence about that was hesitant and unclear when it was suggested that if one accepts a shooter should ensure a pig that has been shot is dead before sighting for the next target, it leaves little opportunity to score multiple kills in a mob of pigs fleeing for cane cover, even using a semi-automatic rifle:

MEMBER: … I seem to recall from some of the letters in support – perhaps it was letters in support – the suggestion was that the automatic weapon is – shouldn’t be trained on a second animal until you are sure – or maybe it wasn’t addressing the automatic, but it simply said, did it not, that if you shoot a pig, you don’t shoot the next pig until you make sure the first is dead. Do you recall reading that?---Yeah. I – so I am aware of – I am aware of that, and so Member, what – what I’m – what I’m planning to do with that is once – once I’m – if I’m granted a category D, I want to get a thermal imaging scope so that I can see once the – the target’s hit the ground and dead, I can – the thermal imager will – will – will – will – will then – I’ll be able to – to take the target for the next one.

Well, I don’t understand that. The thermal image gives the heat signature for the animal, does it?---Correct.

But it’s not going to – you’re not going to – if you shoot and kill the pig, it doesn’t lose the thermal image, surely, from that pig? You won’t know whether it’s - - -?---No, no.

- - - dead or not?---No, it doesn’t. No, it doesn’t, but it – it does – so I’m – I’ve – I’ve – so I’ve seen – in – in – from [indistinct] screens or other people that I’ve been with on their farms, when – when – when they – when the thermal imaging – you can see, it stops – the – the animal – animal, like, it – you can see it goes down, and then there’s no – like, too much more movement, and you know it’s – it’s – the – the kill is pretty – hundred perc – well, you know, pretty sure that the kill has happened.

  1. [55]
    I doubt use of a thermal imaging scope will assist Mr Messina greatly in confirming a shot pig is dead before he moves on to another target.  Rather he will most probably have to utilise one of the suggested methods for doing that noted in the Pestsmart publication or something similar. But in ensuring a humane end to a shot pig has been achieved, I conclude that will cause a delay between shots, which is the very complaint he makes about the usefulness of his existing category A, B and C weapons.
  2. [56]
    The Tribunal is not bound by the rules of evidence.[2] The Tribunal may inform itself in any way it considers appropriate.[3] I determine the Pestsmart publication deserves to be given consideration and weight in deciding this matter. It takes into account a range of methods to achieve effective control of feral pigs. The paper suggests that whilst intensive ground shooting may reduce the local population of feral pigs, it is rarely effective for damage control and is not suitable as a long-term control method. That suggests ground shooting will not greatly assist Mr Messina in preventing pigs from damaging his land and cane crops.
  3. [57]
    Further, the Pestsmart paper suggests that to achieve sustained effective control over the feral pig menace, ground shooting should be used as a secondary control method after initial reduction of high density pig populations by aerial shooting and/or 1080 poisoning. Mr Messina does not propose to use any of the primary control methods suggested. As such I find his prospects of successful control of his local pig menace using only ground shooting to be poor.
  4. [58]
    I determine no great weight can be placed on the letter from Mr Williamson given its generic content.
  5. [59]
    In light of the above I am not persuaded that a category D licence is a necessary occupational requirement for Mr Messina. I am not persuaded that the ground shooting activities he proposes will have significant long-term impact on the feral pig menace confronting him.
  6. [60]
    I find that there are no special circumstances established to justify the general prohibition against semi-automatic weapons being available to Queenslanders found in s 4(a) WA not similarly being applied to Mr Messina.
  7. [61]
    The application is dismissed.

Footnotes

[1]   [40].

[2]  s 28(3)(b) Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[3]  ibid s 28(3)(c)

Close

Editorial Notes

  • Published Case Name:

    Messina v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Messina v Queensland Police Service – Weapons Licensing

  • MNC:

    [2024] QCAT 111

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    01 Mar 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Lawler v Queensland Police Service [2022] QCAT 309
2 citations
Jump To
Cite 1 - [2022] QCAT 309
Cite 2 - [2022] QCAT 309
Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309
2 citations
Jump To
Cite 1 - [2014] QCAT 309
Cite 2 - [2014] QCAT 309

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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