application it has been found that you do not conform to the

criteria according to the Guns Act 1991. The Act states

that the applicant must be a 'fit and proper person' to hold

a gun licence.

The Commissioner of Police (through his delegate) is

required to take various matters into account when

determining whether a person is 'fit and proper'. In

accordance with the criteria I regret that I am unable to

approve your application on the grounds that you have

numerous prior convictions".

2. By s93 the applicant was given a right of appeal to a magistrate against the decision to refuse the licence. He exercised that right and the appeal came on for hearing. On 8 October 1993 the magistrate gave oral reasons for not being satisfied that the applicant was a fit and proper person to hold a gun licence.

3. The applicant has applied to review the dismissal of his appeal to the magistrate upon two grounds:

1 That the learned magistrate erred in law in finding that

he was not a fit and proper person to hold a gun licence.

2 That the learned magistrate erred in law and/or in fact in

finding that the applicant was a person likely to use a gun

for an unlawful purpose if granted a gun licence.

4. In the course of the hearing before me I invited and received submissions from counsel concerning the nature of the proceedings before the magistrate on appeal from the Commissioner and of the proceedings before me on appeal from the magistrate.

THE NATURE OF THE PROCEEDINGS BEFORE A MAGISTRATE ON APPEAL FROM THE COMMISSIONER

5. An application for a licence must be made to the Commissioner of Police under the Guns Act 1991, s21(1) in the prescribed manner. If the Commissioner decides to refuse to grant the licence he is required by s22(1) to inform the applicant in writing of the reasons for the refusal and of the applicant's right of appeal to a magistrate. By s22(2) the Commissioner "shall not grant a licence unless the Commissioner is satisfied that the applicant is qualified to hold the licence". By s20(2)(c) a person is not qualified to hold a gun licence unless he is a fit and proper person to hold it. In deciding whether an applicant is a fit and proper person the Commissioner is required to take into account certain matters referred to in subs(4) and (5), and by subs(6) a person is absolutely deemed not to be a fit and proper person if specified circumstances have occurred in his background, such as certain convictions involving violence. By s84 the Commissioner may delegate any of his functions or powers under the Act to a police officer. The Commissioner apparently did that in this case.

6. It can be seen that the Commissioner or his delegate must refuse the application unless he is satisfied inter alia that the applicant is a fit and proper person to hold the licence.

7. If the Commissioner, or his delegate, decides to refuse to grant the licence then s93 authorises an appeal by the applicant to a magistrate. With a section heading of "Procedure on appeal" s94 is in these terms:

"94-(1) An appeal against a decision by the Commissioner

shall be made in writing to a magistrate.

(2) A magistrate to whom an appeal is made shall deal with

the appeal in accordance with the Justices Act 1959 as if

the appeal were a complaint against the Commissioner in

respect of a breach of duty.

(3) After hearing an appeal a magistrate shall-

(a) confirm the Commissioner's decision; or

(b) revoke the Commissioner's decision; or

(c) direct the Commissioner to take such action as in the

circumstances the Commissioner would have been able to

take under this Act.

(4) The Commissioner shall comply with a direction of a

magistrate."

8. I intend to apply the principles enunciated by Burbury CJ in R v Oldham Ex parte Registrar of Motor Vehicles (1966) Tas SR 80 particularly at 83. The appeal is from an executive officer to a judicial officer. The magistrate to whom the appeal is made must act judicially and not administratively. This is required in any event by s94(2) which obliges the magistrate to deal with the appeal in accordance with the Justices Act 1959 as if the appeal were a complaint against the Commissioner in respect of a breach of duty. The question whether the licence should be granted therefore fell to be determined judicially by the magistrate. The so-called "appeal" to the magistrate was in substance an original proceeding and the question whether the licence should be granted to the applicant had to be tried on fresh evidence and independently of the process by which the Commissioner's delegate reached his conclusion. It was for the magistrate to be satisfied for himself upon the evidence called before him, whether the applicant was a fit and proper person to hold the licence and whether, having regard to all other relevant matters, the licence should be granted. Before he could direct the Commissioner to grant the licence the magistrate had to determine as a matter of fact that the applicant was a fit and proper person to hold the licence and he was required to make certain other determinations of fact required by s20. Having determined all necessary questions of fact the magistrate, if he was satisfied that all essential facts had been established including that the applicant was a fit and proper person to hold the licence, had to exercise his own discretion whether the licence should be granted. On the hearing of this applicant's appeal the magistrate did not reach the stage of having to exercise a discretion for he disposed of the appeal by determining as a matter of fact that the applicant was not a fit and proper person to hold the licence. By virtue of s20(2)(c) the applicant was not qualified to hold the licence unless he was a fit and proper person to do so. By virtue of s22(2) if he was not qualified the licence could not be granted to him. The applicant bore the onus of satisfying the magistrate that he was a fit and proper person to hold the licence.

9. Therefore the appeal to the magistrate was to be dealt with as an original proceeding as if the appeal were a complaint against the Commissioner of Police in respect of a breach of duty, with the onus being on the applicant to persuade the magistrate inter alia that he was a fit and proper person to hold a gun licence and that he ought to be granted it. If persuaded of that the magistrate ought then have exercised his power under s94(3) and directed the Commissioner to grant the licence. S94(4) requires the Commissioner to comply with a magisterial direction of that nature.

10. The applicant has applied to review the order of the magistrate whereby the appeal against the decision of the Commissioner was dismissed. The papers before me do not reveal that an order of that nature was made but I will assume that it was. It would follow from the decision of the learned magistrate that he was not satisfied that the applicant was a fit and proper person to hold a gun licence, that the appeal would effectively have been dismissed, although as a matter of law s94(3)(a) required the magistrate in such circumstances to confirm the decision appealed from.

11. The two grounds of the application to review do not challenge the exercise of any discretion by the magistrate. They challenge determinations of fact. Therefore the application to review has no hope of success unless the applicant can persuade me that upon the evidence before the learned magistrate those determinations of fact were not reasonably open or, to put it another way, that no magistrate, acting reasonably, could have come to those determinations. Richardson v Shipp (1970) Tas SR 105 at 117.

12. Without objection four written testimonials concerning the applicant were admitted into evidence without their authors being called to give evidence. Evidence in that form was strictly inadmissible but as there was no objection and as it was received by the learned magistrate, I will consider it along with all the other evidence. The respective authors of the testimonials spoke about the applicant as follows:

1 One spoke of the applicant being a competent person who

was held high in the esteem of members of the Facilities

Branch, Defence Centre Hobart. His honesty was respected

and he was a reliable maintenance and construction

contractor who could be trusted on any project, based on

work he had done for the Facilities Branch.

2 One said that the applicant was a sporting shooter of vast

experience and ability, safety and care being of great

importance to him and his equipment being of the finest

quality.

3 One said that the applicant had maintained several

firearms in good working order and had always been safety

conscious with them. The author considered the applicant to

be a safe and responsible person to own and use firearms.

4 One considered the applicant to be a responsible and

reliable person who exercised extreme care and was ever

conscious of the safety aspect when handling firearms. The

author had no doubt that the applicant had the common sense

and correct attitude to hold a firearm licence.

13. I find evidence of this nature most unsatisfactory. It was not tested. Its probative value could not be determined. It did not deserve much weight.

14. The only sworn evidence came from the applicant. He was a self employed builder, aged 39 years, who did not suffer from any adverse mental or physical condition. He described himself as a recreational hunter who supplemented his family's food and his dogs' food from game he shot. His evidence suggested that all of his hunting had been carried out with the use of firearms. He said "it's all my leisure, I enjoy my hunting, and I don't do anything else, you know". At the time of the hearing he held licences to take wallaby and female deer and he held a firearms licence issued in New Zealand. He had permission to shoot on two properties in the Tasmanian Midlands. He owned eight firearms. Two or three of them had been purchased by him to give to his son (aged 12) when he is older. He had so many other firearms because he used them for different purposes, some for deer and other large animals, some for kangaroos and some for rabbits.

15. As I have said, unless the applicant was able to satisfy the magistrate that he was a fit and proper person to hold the gun licence he was not entitled to it. By s20(4), in deciding whether a person is a fit and proper person there must be taken into account any likelihood, reasonably suspected, of the person using the gun for an unlawful purpose or to harm himself or herself. For the purpose of that subsection, subs(5) requires that there shall particularly (but not exclusively) be taken into account:

(a) any criminal activity of the person whether in Tasmania

or elsewhere; and

(b) the mental and physical condition of the person; and

(c) any restraint order or interim restraint order made in

respect of the person under the Justices Act 1959.

16. Also relevant is subs(6) which deems a person not to be a fit and proper person if any one of four situations apply. None of them applied to the applicant.

17. In his reasons for not allowing the appeal the learned magistrate said:

"Yes Mr Peters, you are an applicant for a gun licence under

the Guns Act of 1991 and in your list of prior offences

there are many matters listed which obviously involve the

use of firearms for unlawful purposes, although those

purposes relate to hunting matters. One of the matters I

need to consider under the legislation is the - - - -

likelihood reasonably suspected of your using a gun for an

unlawful purpose. I think in all the circumstances there's

reasonable suspicion that you're likely to use the gun for

further breaches and further unlawful purposes which relate

to hunting matters, nevertheless. So in all the

circumstances I am not satisfied that you are a fit and

proper person to hold a gun licence."

18. It can be seen from s20(4) that although a reasonable suspicion of a likelihood of the person using the gun for an unlawful purpose may be taken into account when determining whether the applicant is a fit and proper person to hold the gun licence, it is not necessarily determinative of that question. If the Commissioner or, on appeal, a magistrate, reasonably suspects that there is a likelihood that the gun will be used for an unlawful purpose, he may as a result not be satisfied that the applicant is a fit and proper person to hold the licence, but he is not obliged to come to that conclusion. However, in this case the learned magistrate found that he reasonably suspected that there was a likelihood that the applicant would use the gun for an unlawful purpose and that was sufficient persuasion for the magistrate to conclude that he was not satisfied that he was a fit and proper person to hold a gun licence. Subsequently, in a discussion between the learned magistrate and counsel. the magistrate said "one can only say looking at his record that he's a fairly persistent offender with firearm matters ..... albeit that they're hunting matters". He added that "there are regular offences in relation to firearms, although they are hunting matters". He said that the fines which had been imposed were not trivial "and they are serious matters nevertheless. Well I say his history on his priors indicates he is a persistent offender".

19. I turn therefore to the evidence of the prior convictions of the applicant. The magistrate only expressed concern about those offences which involved the use of firearms and I will refer firstly to them. Although it is not absolutely clear in respect of all of the offences I will mention, it appears likely that the following offences came about as a result of the use of a firearm by the applicant although the use of a firearm was not necessarily an element of each offence. For example, the applicant was convicted on six occasions of possessing protected wildlife. The act of possession does not involve the use of a firearm but it appears likely, and it was reasonably open for the learned magistrate to find, that he had obtained possession of the wildlife by shooting it with a firearm. The record revealed the following:

Date Offence Penalty

25.7.74 Take protected wildlife Fined $80

Special penalty $20

Possess protected wildlife Fined $30

Special penalty $25

19.9.74 Discharge firearm primary land Fined $20

15.11.74 Take deer in closed season (8.9.74) Fined $20

Special penalty $10

Possess protected wildlife Fined $20

(20.5.74) Special penalty $10

30.6.76 Carry firearms on primary Fined $20

produce land Restitution order

Possess deer closed season Fined $40

14.10.77 Take protected wildlife Fined $100

Special penalty $50

Possess products of Conviction recorded

wholly protected wildlife

(5 Forresters)

Possess products of Fined $50

wholly protected wildlife Special penalty $50

Take wildlife out of season Fined $50

Special penalty $60

19.9.78 Possess Silencer Fined $60

Use spotlight from street Fined $25

20.10.78 Take protected wildlife Fined $300

Counsel fees $400

Possess protected wildlife Conviction recorded

Trespass Conviction recorded

Take wildlife out of season Conviction recorded

Refuse to surrender hunting Conviction recorded

equipment

1.11.79 Use spotlight from street Fined $50

7.11.79 Use spotlight from street Fined $45

15.2.83 Possess protected wildlife Fined $50

Special penalty $20

12.12.83 Use spotlight from street Fined $50

22.11.84 Possess silencer Work orders for 5 days

2.9.92 Take partly protected wildlife Fined $250

no licence

Possess partly protected wildlife Fined $250

20. The applicant has also committed a variety or other offences over a period of many years. Since 1982 they have included the following. In 1982 he was fined for disturbing the peace, obstructing the police and resisting arrest. In 1983 he was sentenced to two months imprisonment, all of which was suspended, for attempting to steal. In 1985 he was sent to prison for three months for perverting the course of justice. In about 1986 he was convicted of assaulting his sister. In 1989 he was convicted of provoking a breach of the peace, that also involving his sister. Those last two offences resulted in fines. A domestic restraint order applied to him for twelve months. It related to his sister. He maintained that he is not a violent person and that although there were disputes between him and his mother, sister and brother for three or four years, they have finished and he no longer has contact with those persons. His father is the only member of the family he speaks to.

21. The grounds are set forth near the commencement of these reasons. The record of offences shows that until 1984 the applicant regularly committed offences which arose out of the use of firearms. There was then a gap until 1992 when he re-offended. I think the magistrate was entitled to take into account the other offences to which I have referred as giving some indication of an inclination on the part of the applicant to act as he determines regardless of the law. Notwithstanding the gap between 1984 and 1992 for offences arising out of the use of firearms there was in my view ample evidence upon which the learned magistrate was entitled to conclude that he reasonably suspected there was there was a likelihood that the applicant would use a gun for an unlawful purpose if granted a gun licence. For the meaning of "likelihood" I have applied "something less than probability but more than a remote possibility" and "a real or not remote chance or possibility regardless of whether it is less than fifty per cent". Tillmans Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 346; Sheen v Fields Pty Ltd (1984) 58 ALJR 93 at 95; Brown v Sheppard (1986) 42 SASR 153. Ground 2 therefore fails. I add that I reject the submission of counsel for the applicant that the expression "unlawful purpose" in s20(4)(a) should be read as "unlawful criminal purpose". There is nothing in the Act which requires the expression to be restricted in that way.

22. I turn to ground 1 which complains that the learned magistrate erred in law in finding that the applicant was not a fit and proper person to hold a gun licence. This raises the question whether upon all the evidence, accepting the magistrate's decision and taking into account that there was a reasonable suspicion of a likelihood that the applicant would use a gun for an unlawful purpose, it was reasonably open to the learned magistrate to conclude that he was not a fit and proper person to hold a licence.

23. I think that the major reason for enacting the Guns Act 1991 was to provide some measure of protection against those prone to use firearms in the course of acts of violence against fellow humans. However, reasons for the legislation would also have included the need to protect those people prone to do violence to themselves against themselves and a general need to provide some measure of protection against those prone to use firearms irresponsibly and unlawfully. The protection of wildlife would fall within that category of need.

24. Although the applicant's record suggested that he may be a hot-blooded man with a tendency to violence or breaches of the peace in the course of disputes with members of his family, there was nothing to suggest that he would misuse a firearm against his fellow man, nor was there anything to suggest that he might misuse a firearm against property, other than wildlife. Essentially what was in issue before the learned magistrate, whose reasons for his decision raised no other topic, was the extent of the likelihood, reasonably suspected, that the applicant would use a gun for the purpose of unlawfully hunting wildlife or would use a gun in some unlawful manner or place in the course of hunting and whether that likelihood might reasonably have left the magistrate in a position where he was unable to say that he was satisfied that the applicant was a fit and proper person to hold a gun licence.

25. My function is not to decide the application as if I was hearing an application for a gun licence for the first time. The applicant must fail if he has not persuaded me that no magistrate, acting reasonably, could have failed to be satisfied that he was a fit and proper person to hold the licence. My conclusion is that I am not so persuaded. In my opinion it was reasonably open to the learned magistrate to find himself in a position where he was not satisfied that the applicant was a fit and proper person to hold the licence. I add that it is not a question of whether the magistrate was satisfied that he was unfit or not a proper person. The applicant's extensive record to 1984 involving use of firearms for unlawful purposes and the further similar offences committed only about a year before the application to the learned magistrate suggest that he may well continue to use guns for unlawful purposes and his record for offences generally since 1982 suggests a lawlessness about him to the extent that I find myself unable to conclude that the magistrate was in error. Ground 1 therefore fails also.

26. For these reasons the application will be dismissed.