SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: White v Woolcock [2006] QCA 148 PARTIES: WHITE, Darryl John (appellant/respondent) v WOOLCOCK, Richard Bruce (respondent/applicant/appellant) FILE NO/S: Appeal No 7538 of 2005 DC No 4071 of 2004 DIVISION: PROCEEDING: ORIGINATING COURT: Court of Appeal DELIVERED ON: 5 May 2006 DELIVERED AT: Application for Leave s 118 DCA (Civil) General Civil Appeal District Court at Brisbane Brisbane HEARING DATE: 8 March 2006 JUDGES: ORDERS: McMurdo P, Jerrard JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made 1. Leave is granted to appeal from the decision given on 10 August 2005 in the District Court allowing the respondent s appeal, the appeal to this Court is allowed, and the decision of the District Court is set aside 2. The decision made on 15 October 2004 in the Magistrates Court at Brisbane dismissing the respondent s appeal against the decision of the authorised officer is set aside 3. The proceedings are remitted to the Magistrates Court at Brisbane for hearing and determination according to law of the respondent s appeal against the decision of the authorised officer CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS FIREARMS LICENCES AND RELATED MATTERS LICENCES ISSUE OF AND GENERALLY where the respondent owned two Browning semi-automatic pistols and one Jennings.22 rim-fire pistol where the applicant rejected the respondent s application for transfer of these pistols from his concealable firearms licence to his collector s licence (weapons) whether the pistols were collectable firearms under the Weapons Act 1990 (Qld) whether the applicant

2 2 COUNSEL: SOLICITORS: had a genuine reason for possessing them whether the appeal should be allowed District Court Act 1967 (Qld), s 119(2) Weapons Act 1990 (Qld), s 3, s 4, 11, s 24, s 49, s 50A, s 77, s 138, Schedule 2 Weapons Categories Regulation 1997 (Qld) Weapons (Handguns and Trafficking) Amendment Act 2003 (Qld) Weapons Regulation 1996 (Qld), s 14B G P Long for the respondent/applicant/appellant A J Kimmins for the appellant/respondent Queensland Police Service Solicitor for the applicant Ryan & Bosscher for the respondent [1] McMURDO P: I agree with Holmes J's orders and her reasons. [2] JERRARD JA: In this appeal I have read the reasons for judgment and orders proposed by Holmes J, and respectfully agree with them. [3] HOLMES J: The applicant for leave to appeal is an authorised officer under s 153 of the Weapons Act 1990 for the purpose of making decisions as to issue, renewal, endorsement and alteration of weapons licences. In June 2004, the applicant rejected applications by the respondent, already a licence holder under the Act, for transfer of three weapons he was authorised to possess under his concealable firearms licence to his collector s licence (weapons). The respondent appealed the applicant s decision unsuccessfully to the Magistrates Court, but on further appeal to the District Court it was set aside and the transfer application was granted. The applicant contends here that the learned District Court judge fell into error as to the appropriate tests to be applied under the Weapons Act and as to what conclusions could be drawn from the respondent s existing licences. The respondent s weapons and licences [4] The weapons in question were two Browning semi-automatic pistols made in the early years of the twentieth century and a Jennings.22 rim-fire pistol, the date of manufacture of which was unknown, but was certainly post (That meant that the Jennings pistol was a modern handgun for the purposes of the Act.) The respondent was a member of an approved pistol shooting club. When he sought a permit to acquire one of the Browning pistols, he gave as his reason for needing it, for use in shooting competition. [5] The three pistols were registered on the firearms register maintained by the Commissioner of the Police Service under s 49 of the Act. The licence authorising their possession was the respondent s Category H concealable firearms licence. It permitted him to possess and use registered Category H weapons 1 of a certain calibre range in specified forms of competition and to possess and use registered 1 A Category H firearm is, by virtue of the definition in sch 2 to the Act taken with s 7(1) of the Weapons Categories Regulation 1997, a firearm under 75 cm in length which has not been rendered permanently inoperable.

3 3 Category H weapons generally at approved shooting ranges. The licence also incorporated a list of the weapons held under it. In the appeal record there is a document headed: Weapons Act 1990 Weapons List Weapons Act Licence. There is then a licence number, which is that of the respondent s concealable firearms licence, followed by his name and address, and a list of weapons including the three pistols of interest here. The document bears at its foot the notation Form 2b Ver.1 15/01/97. These forms are part of your licence and must be retained. Neither the Weapons Act nor the Weapons Regulation 1996 (Qld) provides for a Weapons List, but, on 30 May 1997, three forms, Licence, Licence Conditions and Weapons List, numbered respectively as Forms 2, 2a and 2b were notified by gazette as approved, commencing on 15 January It seems to follow from that context and from the headings and notation that the Weapons List constituted an endorsement of the respondent s concealable firearms licence with the listed weapons. [6] The respondent applied for a collector s licence (weapons) and was granted it in March It was endorsed with a category of weapons whose possession it authorised, rather than any specific weapon; it allowed him to have possession of registered category H weapons provided they were collectable firearms 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 That set of qualifications was consistent with conditions for collectors licences which are imposed in two different sections of the Act, s 77 and s 138. [7] The relevant parts of s 77 of the Act are as follows: (1) It is a condition of a collector s licence (weapons) that the licensee may possess... (c) category H weapons only if (i) they are manufactured before 1 January 1947 and are temporarily inoperable, collectable firearms; or (ii) they are manufactured on or after 1 January 1947 and are temporarily inoperable, collectible [sic] firearms and the licensee s licence is endorsed to allow possession of collectable firearms manufactured on or after 1 January 1947; or (iii) otherwise they are permanently inoperable. (2) In this section collectable firearm means a firearm that is of obvious and significant commemorative, historic, thematic or investment value. [8] The extending of the licence condition to modern handguns amounted to an authorisation for the purposes of s 138, which contains these provisions: (2) It is a condition of a collector s licence (weapons) that the licensee must not possess temporarily inoperable modern handguns.

4 4 (3) Despite subsection (2), an authorised officer may authorise the licensee to possess temporarily inoperable modern handguns if the authorised officer is satisfied that the licensee has a prolonged and genuine interest in the study, preservation or collection of firearms. (4) If the authorised officer authorises the licensee to possess temporarily inoperable modern handguns, the authorised officer must endorse the licensee s licence accordingly. It follows that the authorised officer who issued the respondent s collector s licence must have been satisfied that he had a prolonged and genuine interest in the study, preservation or collection of firearms. [9] The respondent applied to bring the three pistols under his collector s licence in June 2004, when the Weapons Act was amended 2 ; the effect of that amendment was to preclude, after an amnesty period, possession of the weapons under the concealable firearms licence. 3 In his applications (each made in the form of an application for a change of particulars ) he explained that the Brownings were different versions of a series of pistols developed by John Browning in the late nineteenth century and early twentieth century, and used widely by European police and military; one of them was a model used to assassinate Archduke Ferdinand in 1914, precipitating the First World War. The Jennings pistol had no features of remark, but as an armourer, he required it as part of a range of firearms needed to maintain his skills. The authorised officer s decision [10] The authorised officer was satisfied that all three weapons were temporarily inoperable. But, having reviewed information available as to the manufacture of the weapons which showed that each of them had been produced in large quantities, he expressed himself not satisfied that the weapons were of obvious and significant commemorative, historic, thematic or investment value. He concluded, therefore, that the weapons were not collectable firearms. Secondly, disregarding the effect of the existing licence endorsement, which made this aspect irrelevant, he formed the view that the respondent did not have a prolonged and genuine interest in the study, preservation or collection of firearms. For both reasons that the firearms were not collectable and that the applicant did not have the interest in firearms stipulated under s 138(3) he rejected the application. The appeal to the Magistrates Court [11] The respondent exercised his right of appeal to the Magistrates Court. 4 His notice of appeal was supported by a letter, not part of the appeal record in this Court, in which he seems to have re-articulated his arguments. Before the magistrate, he contended that the Browning pistols were of both historic and thematic value, while Weapons (Handguns and Trafficking) Amendment Act 2003 (Qld). Section 64 of the amending Act amended s 132 of the Weapons Act so as to prohibit possession under a concealable firearms licence of a Category H semi-automatic weapon with a barrel length of less than 120mm, where the weapon s overall length was less than 250 mm; the respondent s pistols fell within that description. Section 142 of the Weapons Act provides a right of appeal to the Magistrates Court which, pursuant to s 147, is to be by way of re-hearing.

5 5 the Jennings pistol s significant feature was its cheapness of construction (an aspect which emerged from the information furnished by the authorised officer). He relied also on his involvement in film and theatre as an armourer and the usefulness of the firearms in that context. [12] The magistrate referred to the reasons of the authorised officer and made this observation: When having regard to section 3 of the Act and the above cases [decisions cited to her in relation to public interest], it is plain that the objective considerations of public interest are of high importance when making determinations under the Act. These were her findings: I accept that the appellant has an interest in firearms, particularly with regard to his casual work as an assistant film armourer. The appellant seeks to rely upon having established that the Browning weapons are part of a historic theme. There is no evidence before me that the appellant has any other weapons of this type. Admittedly, a collector must commence a collection somewhere. However, I am of the opinion that there is no evidence that the appellant has collected these particular firearms other than to use them for target or sport shooting. I am not satisfied that an historic theme has been established with regard to those firearms and, subsequently [sic], I am not satisfied that they are collectables. I am of the opinion that the Jennings J.22 pistol is not a collectable firearm pursuant to the Act. With regard to the appellant having a prolonged and genuine interest in the study, preservation or collection of firearms, I note that the appellant only made an application for a collector s licence in July I also note that the four weapons that he refers to as being of significant historical and investment value are currently possessed for the purpose of sports or target shooting. I have considered the appellant s casual work as a film armourer since However, after considering all the facts, I am of the opinion that the appellant does not have a prolonged and genuine interest in the study, preservation or collection of firearms to satisfy the requirements of the Act. Having reached those conclusions, the magistrate went on to dismiss the respondent s appeal. In doing so, she observed that she had had to balance his rights against the public interest. [13] The reference in the penultimate paragraph of the reasons as set out above to the four weapons... of significant historical and investment value is perplexing until one goes to the applicant s affidavit, which was before the Magistrates Court, and which deals with some of the points made in the respondent s letter accompanying his appeal documents in that court. The applicant says this: At pages 2 & 3 reference is made to his interest in the study, preservation or collection of firearms, citing that he has collected

6 6 handguns that are of significant historical and investment value and referencing 4 weapons. These weapons are currently registered to the concealable firearms licence issued to the Appellant and are possessed for the purpose of sports or target shooting. It is tolerably clear that the respondent had relied on his possession of weapons other than those the subject of his application as demonstrating his collecting interests. The District Court appeal [14] That decision was then appealed to the District Court pursuant to s 149 of the Weapons Act, which permits an appeal on a question of law. The learned District Court judge allowed the appeal on the bases that the magistrate had wrongly applied, as the primary test, the test set out in s 138(3) of the Act for possession of modern handguns and had failed to give proper consideration to the evidence as to the weapons being collectable firearms. Her Honour regarded the respondent as having already been granted a collector s licence in respect of the three subject weapons, apparently on the basis that the licence he held entitled him to possess registered Category H weapons that were collectable firearms (including modern handguns). Thus, she concluded, each of the subject weapons had already been deemed to be, for the purpose of that licence, collectable firearms. [15] The judge went on to criticise the magistrate s decision-making process on two further grounds. The first was that the magistrate had regarded the fact that the appellant had collected the weapons for use for target or sports shooting and had only applied for a collector s licence in July 2003 as precluding a finding that the weapons were collectable; that was, her Honour said, a matter more relevant to the s 138(3) test, which was inapplicable because the respondent already held the necessary authorisation under that subsection. The second was that the magistrate had referred to the question of public interest, which could have no real significance, given that the respondent had already held several licences 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 The evidence properly considered, in the District Court judge s view, could lead to only one conclusion, that the respondent s appeal ought to have been allowed. What was the decision under appeal? [16] A puzzling feature of all three decisions is a failure to identify precisely what was being decided, and pursuant to which provisions of the Act. The respondent had lodged three applications for changes of particulars (Form 4) under s 24 of the Weapons Act. Where asked, on each form, to indicate the changes that you wish to make to your existing licence particulars, he marked in each case the box for Transfer of weapons (No change of ownership). To each application he attached a

7 7 letter setting out his reasons for wishing to transfer the relevant firearm to his collector s licence. [17] The applicant, in dealing with the applications, described them being firstly, to have the three weapons classified as collectable firearms and secondly, to have them transferred from the concealable firearms licence to the collector s licence. Both the magistrate and the District Court judge referred to the applications collectively as an application for transfer of the weapons from licence to licence, without reference to any legislative mechanism for that transfer. Counsel for the applicant in the District Court characterised the applicant s decision as one as to endorsement of the relevant licences, but in this Court as relating to registration of the firearms. [18] That apparent confusion is understandable when one scrutinises the Act; there is no explicit process by which particular weapons are to be brought within the authority of a particular licence. It is necessary therefore to examine the scheme of the Act to establish what means were open to the respondent to achieve the transfer and what tests, if any, were applicable. Scheme of the Weapons Act 1990 [19] The principles and object of the Act are set out in s 3: (1) The principles underlying this Act are as follows (a) weapon possession and use are subordinate to the need to ensure public and individual safety; (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. (2) The object of this Act is to prevent the misuse of weapons. [20] Section 4 sets out how the object is to be achieved for firearms; relevantly for present purposes those means include the following: (b) establishing an integrated licensing and registration scheme for all firearms; and (c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and (d) providing strict requirements that must be satisfied for (i) licences authorising possession of firearms; and (ii) the acquisition and sale of firearms... [21] Part 2 of the Act is concerned with licences. Section 9 provides for their issuing, renewal, endorsement or alteration by an authorised officer. Section 10 sets out a number of limitations on licence issue: among other things, it is necessary that applicants have a reason mentioned in section 11 5 for possession of a weapon. Section 11, headed Genuine reasons for possession of a weapon, provides: The following are reasons for possession of a weapon 5 Section 10(2)(f).

8 8 (a) sports or target shooting; (b) recreational shooting; (c) an occupational requirement, including an occupational requirement for rural purposes; (d) collection by a collector of weapons; (e) another reason prescribed under a regulation. Collector is defined, not very helpfully for present purposes, in sch 2 to the Act as meaning a person who collects or holds out as being ready to collect, whether on behalf of the collector or another person, a weapon or weapons. There are different classes of licence; 6 they include the collector s licence (weapons) and the concealable firearms licence which the respondent here held. [22] Part 2 also provides for how licence applications are to be made and decided. Section 16 requires that a licence be in the approved form, and sets out matters to be endorsed on it, including the weapon or category of weapon the possession of which is authorised by the licence. 7 Other provisions deal with additional application requirements for the different classes of licence. There is then a series of provisions to do with the duration, transfer, replacement, amendment, surrender and revocation of licences and with contravention of licence conditions. Section 24, under which the respondent here purported to apply, makes it a condition of licences that the licence holder advise changes in relevant circumstances: (1) It is a condition of each licence that a licensee must, within 14 days of the happening of an event mentioned in subsection (2) (the change), advise an officer in charge of police of the change and the particulars of the change the officer reasonably requires and deliver the licence to the officer. (2) The events are (a) any of the following that happen to the licensee or the licensee s representative (i) a change of address; (ii) a change in the licensee s or the licensee s representative s mental or physical fitness; (iii) the conviction of the licensee or the licensee s representative of an offence mentioned in section 10B(2)(a); (iv) the making of a domestic violence order against the licensee or the licensee s representative; or (b) a change in the licensee s (i) reason or need for possessing or using a weapon; or (ii) access to secure storage facilities for the licensee s weapon; or (c) a change in the licensee s name or the licensee s representative s name; or (d) a change in the place entered in the firearms register as the place where a firearm is generally kept if the licensee is the registered owner of the firearm; or 6 7 Section 12. Section 16(1)(b)(i).

9 9 (e) if the licensee is a licensed dealer, a change in the licensee s associates; or (f) the revocation of the licensee s permission to shoot on a landowner s rural land; or (g) another event prescribed under a regulation. (3) If advice of a change in the licensee s associates is given under subsection (2)(e), the advice must be given in the approved form and include (a) the full name, occupation and residential address of each of the licensee s associates; and (b) details of the associate s relevant financial interest, relevant power or relevant position in the licensee s business. (4) The officer in charge must advise an authorised officer of the change. (5) The authorised officer must (a) if the change is to a particular on the licence and the authorised officer is satisfied of the correctness of the change endorse the licence with the change; or (b) otherwise take the appropriate action in relation to the licence.... [23] Part 3 of the Act deals with acquisition, sale and disposal of weapons. Of present interest is s 49 which requires the Commissioner to establish and maintain a record of all firearms in Queensland. That record is called the Firearms Register. Information for each firearm must be entered in it including: (2) (b) the type, make, calibre, action, magazine capacity and any serial number of the firearm; (c) details of the licence authorising possession of the firearm;... (f) the reason given for possession of the firearm and, if appropriate, the reason why the particular firearm was needed; [24] Part 4 is concerned with possession and use of weapons. Section 49A provides: (1) A licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose. (2) However, the authority to possess or use a weapon, or a category of weapon, under a licence is subject to a regulation, condition or participation condition, whether imposed by an authorised officer or prescribed under a regulation. Section 50A(1) makes it an offence to possess an unregistered firearm ; a term which is defined as meaning a firearm for which information is not entered in the

10 10 firearms register. Of particular interest in this part is div 3, which concerns collectors; it includes s 77 which provides, inter alia, the licence condition for Category H weapons set out earlier in these reasons. Part 5 of the Act creates additional requirements in relation to Category H weapons, including those imposed by s 138. Means of transfer [25] Unfortunately, the Weapons Act does not identify any mechanism for the movement of weapons from being held under the authority of one licence to being held under another. I do not think that the transfer sought in this case could be met simply by a change of particulars as contemplated by s 24. That section is directed to advice of changes specific to a licence or to the licensee s entitlement to hold it. That is apparent from the section s content and also from what is required of an authorised officer in response to a change: where there is a change to a particular on the licence which he is satisfied is correct, he must endorse the change on the (same) licence; otherwise he must take the appropriate action in relation to the licence. While in this case, notification of a change in the reasons for holding the weapons might, under s 24, have led to their removal from endorsement on the concealable firearms licence, the section does not provide for transfer of the endorsement to a different licence; nor, for that matter, does it contemplate action in relation to the registration of weapons. [26] One way a transfer might be achieved is by removal of an existing licence endorsement such as there was here in respect of particular weapons, and endorsement of those weapons instead on a different licence, one appropriate for their retention. It is to be noted, however, that the Act permits, but does not seem to require, endorsement of particular weapons, as opposed to a category of weapons, on a licence. Section 16, which deals inter alia with licence endorsement, gives alternatives: the licence is to be endorsed with the weapon or category of weapon (italics added). Section 49A(1) sets out the authority given by a licence in terms of authority to possess and use a weapon or category of weapon (italics added). Authorisation by licence to possess a category of weapon would be pointless if endorsement of each individual weapon on the licence were also required. As counsel for the applicant submitted, the Act appears to set up a scheme by which licences may be issued for categories of weapons, with the holding of individual weapons pursuant to such licences monitored by the registration process. [27] The alternative, then, was for the respondent to seek an alteration in the particulars in the Firearms Register so as to show the weapons as registered against his collector s licence rather than the concealable firearms licence. He would not then be in contravention of s 50A of the Act; nor would he contravene the conditions of his collector s licence which required that any weapons held under it be registered. (There, is however, a circular quality to any such process; the weapons had to be registered before they could be regarded as authorised under the licence, but in order to have them registered, details of the authorising licence had to be provided.) [28] The Act again is silent as to how details are to be entered in the Firearms Register. It is the Commissioner of Police who must ensure that the register is maintained, and information is to be entered into it, but nothing is said as to who is to do the entering or on what basis. Nothing in the terms of s 49 indicates that the register is more than the passive recipient of information, presumably provided in the first instance by

11 11 firearms owners; but given the Act s concern with safety and with the demonstration of genuine reason for firearm possession, that seems unlikely. The better view, I think, is that the Commissioner (or his delegate) must have a power to assess proffered details for correctness, which in turn implies the existence of a power to decide, among other things, whether a given firearm is in fact held under the authority of a particular licence. 8 [29] Examining what actually occurred in this case leads me, however, to the conclusion that the applicant s decisions were as to endorsement, rather than registration. The respondent s applications all sought licence change, without reference to the firearms register. There was no suggestion that the applicant held any delegation to make changes in the register. At no stage of the appeal process has the respondent questioned the applicant s authority to make the decisions in question, and he clearly dealt with the applications in his capacity as an authorised officer, which indicates that he was exercising a decision-making power under s 16 of the Act. In the circumstances of this case, that could only have involved decisions as to endorsement. Considerations relevant to licence endorsement [30] The question then arises, by reference to what considerations were the applicant s decisions as to endorsement of these weapons to be made? Again, the Act is silent as to how further endorsement of an existing licence is to take place. The fundamental question is whether the applicant as authorised officer was required to endorse the licence with any weapon which fell within the category the respondent was authorised to possess under s 77 and the corresponding licence condition that is to say, any temporarily inoperable, collectable firearm manufactured after 1901, (including modern handguns ) or whether he was also required to examine the genuineness of the respondent s reasons for wishing to hold the weapons and the public interest in his being permitted to do so. If the former is correct, given he had found the pistols were temporarily inoperable and that in respect of the Browning there was an endorsement to cover modern handguns, no more was required of the applicant, or, in turn, the magistrate, than a decision as to whether each of the firearms was of obvious and significant commemorative, historic, thematic or investment value. [31] But I think that is too limited a view, one which does not give sufficient recognition to the broader scheme of the Act. Section 3 gives, as an underlying principle to the Act, priority to public and individual safety over the individual s possession and use of weapons. The object of preventing misuse of weapons is to be achieved, inter alia, by requiring each person who wishes to possess a firearm under a licence (not, it is to be noted, a category of firearms) to demonstrate a genuine reason for possessing the firearm. 9 That seems clearly directed to requiring that a person demonstrate genuine reason not only at the time of acquiring a licence, but also 8 9 The prospect of there being two different routes for the transfer of weapons from the authority of one licence to that of another is illustrated by two mechanisms put into place after the respondent s application was made. The first is s 14B of the Weapons Regulation (inserted by the Weapons Amendment Regulation (No 1) 2004), which gives specifics of how an application to transfer endorsement of a firearm from one licence to another is to be made and decided. The second is Form 4E, Application for Transfer of Weapon(s), gazetted on 15 April 2005; it permits application for a change of the licence number against which weapons are registered. Section 4(c).

12 12 when seeking to bring particular firearms under the licence. Indeed, attention to the individual s reasons for holding firearms is the whole point of having specific forms of licence. [32] It follows that if the respondent wished these weapons registered against his collector s licence it was necessary for him to satisfy the authorised officer of a genuine reason for his application; in this case, collection of the weapons by him as a collector of weapons. It would not suffice, for example, that items were collectable if the reason for wishing to hold them was divorced from their having that character; for example, if weapons had an investment value, but were in fact wanted for theatrical supply. There were therefore two aspects to what the respondent had to demonstrate in the case of each weapon: that it was collectable, objectively speaking, in terms of the definition in s 77(2), and that he, from a subjective point of view, wanted to hold them under his collector s licence in his capacity as a collector. Errors in the appeal decisions [33] In my view, the decision of the District Court judge proceeded on a wrong premise: that the applicant s existing collector s licence had somehow determined the status of the three weapons in respect of which the applicant sought a specific endorsement on the licence. The licence had merely authorised possession of a category of weapons registered category H weapons that are collectable firearms manufactured on or after 1 January 1901 (including modern handguns) made temporarily inoperable not specific firearms. Nothing in the Act provides for any deeming effect of the kind referred to by the District Court judge; rather the question of whether any given weapon was a collectable firearm remained to be determined in each case by reference to the definition in s 77(2). [34] Contrary to the view taken in the District Court, it was relevant for the magistrate to make findings about the respondent s reasons for having the weapons, and to make those findings in the context of the respondent s interest in possessing the weapons being subordinate to public interest safety considerations. As to other criticism of the magistrate s decision, it was not correct to say that she treated the fact that the weapons had been acquired for a particular purpose as precluding a finding that they could not have commemorative historic, thematic or investment value. Clearly enough, she treated that aspect of the matter as a consideration, rather than as being conclusive of the result of the application. And it was not, in my view, irrelevant that the respondent s first interest in them had been in their practical application rather than their historic charm. [35] The errors in the reasoning of the District Court judge are such as to require a grant of leave to appeal and the upholding of the appeal. But there remains the question as to whether the magistrate s decision can in any event stand. Because the respondent already held the authorisation referred to under s 138(3) and his licence was endorsed accordingly, it is plain that the magistrate erred in applying the test as to prolonged and genuine interest ; the applicant conceded as much both here and on the District Court appeal. Although it is arguable that she resolved that question independently of the issues of whether the pistols were collectable and the respondent had a genuine reason for possessing them as such, there is a risk that her considerations of the latter were infected by the notion of a prolonged and genuine interest. In those circumstances there is, I think, a real likelihood that the fact-

13 13 finding process miscarried. For that reason I think that it is necessary that the matter be re-heard. Orders [36] Section 119(2) of the District Court of Queensland Act 1967 gives this Court broad powers on the hearing of an appeal from the District Court, including the power to: make any order, on such terms as the Court of Appeal thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties. That seems to me to be sufficiently broad to permit a remitter of the matter to the Magistrates Court for determination on the merits. I would order, accordingly: 1. That leave be granted to appeal from the decision given on 10 August 2005 in the District Court allowing the respondent s appeal, that the appeal to this Court be allowed, and that the decision of the District Court be set aside. 2. That the decision made on 15 October 2004 in the Magistrates Court at Brisbane dismissing the respondent s appeal against the decision of the authorised officer be set aside. 3. That the proceedings be remitted to the Magistrates Court at Brisbane for hearing and determination according to law of the respondent s appeal against the decision of the authorised officer.