White v Woolcock[2005] QDC 219

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal on a question of law pursuant to s. 149 of the Weapons Act 1990 (‘the Act’) from the decision of a magistrate, who, on the 15th October 2004, dismissed an appeal from a decision of an authorised officer who, on the 23rd June 2004, had refused an application made by the Appellant to have 3 weapons transferred from his Category H concealable firearms license No. 30010815-04 to his Collector’s License (weapons) No. 42003167-00.

2. [2]
   The authorised officer refused the Appellant’s application because he was not satisfied that the 3 weapons in question, namely 2 Browning semi-auto pistols and a Jennings semi-auto pistol, were ‘collectable firearms’ within s. 77(2) of the Act and further, that he was not satisfied that the Appellant had a prolonged and genuine interest in the study, preservation or collection of firearms (s. 138(3) of the Act).

3. [3]
   The decision now under appeal before this Court is the magistrates’ decision given on the 15th October 2004.

The Hearing before the Magistrate

4. [4]
   The hearing before the magistrate was an appeal by way of rehearing, unaffected by the decision appealed against.

5. [5]
   The magistrate was provided written material for her consideration.

6. [6]
   An affidavit sworn by Richard Bruce Woolcock on the 20th September 2004 and filed by leave by the Respondent on the 11th October 2004, was provided to the magistrate which set out the basis upon which the authorised officer had refused the Appellant’s application.

7. [7]
   Written material was also provided to the magistrate for her consideration by the Appellant.

8. [8]
   Oral submissions were made by both parties before the magistrate on that material.

9. [9]
   That evidence, collectively speaking, was the material upon which the Magistrate ultimately came to her decision.

10. [10]
    The Appellant’s Amended Notice of Appeal, filed in this court on the 22^nd December 2004, sets out in adequate detail, the grounds of appeal relied upon before this Court.

11. [11]
    In essence, the Appellant submits that there was an error of law on the part of the magistrate when she determined the appeal because she completely misconceived the question required to be answered on the appeal before her.

12. [12]
    That question was ‘whether each of the 3 weapons, subject of the application, was a ‘collectable firearm’’, as defined in s. 77(2) of the Act.

13. [13]
    The Appellant submits that the magistrate applied the wrong test when determining that question and as a consequence, fell into error.

Did the magistrate apply the wrong test when determining the question to be answered on the appeal?

14. [14]
    In my view, the magistrate’s reasons for her decision adequately demonstrate that the magistrate did apply the wrong test when determining the question to be answered on the appeal.

15. [15]
    The magistrate’s reasons, when read as a whole, clearly demonstrate that the primary test which the magistrate has applied when determining the appeal, was the test set out in s. 138(2) of the Act, namely ‘whether the Appellant had a prolonged and genuine interest in the study, preservation or collection of firearms’.

16. [16]
    The Respondent concedes that the magistrate has applied this (wrong) test but only in respect of one of the 3 subject weapons, namely the Jennings semi-auto pistol.

17. [17]
    The Respondent therefore submits that it follows that the whole of magistrate’s decision in respect of all 3 subject weapons is not tainted as a consequence of that error.

18. [18]
    It is difficult to accept the Respondent’s submission on this issue.

19. [19]
    The magistrate has referred to the (wrong) test several times in her reasons for her decision as the basis for refusing to allow the appeal in respect of all 3 subject weapons (page 5).

20. [20]
    The magistrate has also at page 3 (commencing at line 50 up to and including line 10, page 4), refers to, what she understood to be, the authorised officer’s reasons for his decision to refuse the Appellant’s application, in respect of the Jennings semi-auto Pistol.

21. [21]
    When one carefully examines the authorised officer’s affidavit which was filed by leave for the magistrate’s consideration however, it is clear that the authorised officer did not restrict the application of the test (set out in s.138(2) of the Act in respect of the possession of temporarily inoperable ‘modern handguns’) to the Jennings semi-auto pistol only.

22. [22]
    Rather, he has applied that test to each of the subject weapons in question.

23. [23]
    The reason he has done so is clear from his affidavit.

24. [24]
    The authorised officer determined that each of the subject weapons were ‘modern handguns’ and consequently, the test set out in s. 138(2) of the Act was applicable in the circumstances.

25. [25]
    (see Affidavit of Richard Bruce Woolcock sworn 20th September 2004 in this regard - Sheet 18, paragraph  90 which specifically refers to ‘subject weapons’ in that context; and further, Sheet 26, paragraph 106 which confirms that the authorised officer determined that each of the subject weapons, and not just the Jennings semi-auto pistol, was a ‘modern handgun’ for the purpose of s. 138(2) of the Act.)

26. [26]
    Having determined then, that there was an error of law on the part of the magistrate in applying the wrong test when determining the question which needed to be answered on the appeal, it is still necessary however, to consider whether there has 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).

27. [27]
    In her reasons for decision, the magistrate has (even notwithstanding that she has clearly applied the (wrong) test), set out the bases upon which she determined that each of the subject weapons were not ‘collectable firearms’ within s.77(2) of the Act.

28. [28]
    On any view of the reasons given by the magistrate, it is clear that she did not give any weight to the fact that as a result of a successful application made on the 23 October 2003, the Appellant had already been granted a Collector’s License (weapons) in respect of all 3 subject weapons, effective from 1 March 2004 to the 28 February 2009.

29. [29]
    That license entitled him “to have possession of registered category H weapons that were collectable firearms (my emphasis added) 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”.

30. [30]
    In other words, each of the subject weapons had already been deemed to be, for the purpose of that license, ‘collectable firearms’ within s. 77(2) of the Act.

31. [31]
    As such, the magistrate should have taken that fact alone to be of some real significance, but failed to do so.

32. [32]
    While it is true that the magistrate did turn her mind to the question at hand (see page 4 line 50), it is also clear that the magistrate did not sufficiently turn her mind to the question of whether each of the subject weapons was a ‘collectable firearm’ within the relevant definition.

33. [33]
    Rather, she considered that simply because the Appellant had not ‘collected’ any other weapons of a similar type before, had only collected the 3 subject weapons (and 4 other weapons) for use for target or sport shooting and had only applied for a collector’s license in July 2003, that those factors precluded a finding that the Appellant had demonstrated that the subject weapons in question were ‘collectable’.

34. [34]
    In light of all the evidence before the magistrate, it is my 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.

35. [35]
    It is my view that the magistrate has taken into account, facts and circumstances which were, in my view, factors more relevant to the question of whether or not the Appellant had not demonstrated a prolonged (my emphasis added) and genuine interest in the study, preservation or collection of firearms (the s. 138(2) test).

36. [36]
    In doing so, the magistrate has applied the ‘wrong’ test.

37. [37]
    It follows therefore that her decision was erroneous.

38. [38]
    Finally, the magistrate has also referred to question of ‘public interest’ and the need to balance that factor against the rights of the Appellant. (see page 6).

39. [39]
    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.

40. [40]
    Accordingly, it is my view that there was 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 the appeal ought to have been allowed.

Conclusion

41. [41]
    As observed by His Honour McGill, DCJ in Phillips v Woolcock at paragraph [36], having decided that there was a error of law on the part of the magistrate, this court has all the powers and duties of the magistrates court.

42. [42]
    Accordingly, the appeal is allowed, the order of the magistrate of the 15th October 2004 is set aside, and in lieu thereof it is ordered that the appeal against the decision of the respondent on the 23rd June 2004 be allowed, and that decision be set aside.

43. [43]
    I substitute a decision:

1. (i)
   that the application by the appellant to have the 3 subject category H weapons transferred from his ‘concealable firearms license’ no. 30010815 to his ‘collector’s license (weapons) no. 42003167 be granted.
2. (ii)
   that the 3 subject category H weapons be classified as ‘collectable firearms’ for that purpose.
3. (iii)
   that the respondent pay the appellant’s costs of and incidental to this appeal to be assessed.