Firearms Lawyer Simon Munslow answers your legal questions.

Guns And Alcohol

My wife is a school teacher. When she used to teach in a primary school, she would hear all of the town’s gossip during weekly ‘show and tell sessions’ from her young students, who often would not have any idea about the implications of what they were saying.

Children are very good at noticing, reporting, and often parroting things, particularly things that they sense you would not want them to report upon. It is therefore quite common for children to remark about parents drinking, or about any inappropriate behavior.

It is for this reason that many instances of child abuse come to light when a child innocently reports to the class, what some ‘uncle’ has done to him or her.

Unfortunately, some allegations against shooters who are engaged in perfectly legal activities begin in the same manner, and we are particularly at risk in this regard because many teachers have a less than enlightened view about shooters and hunters, and see danger when it is not there.

In a recent matter, Police became interested in my client because one of his children mentioned during a ‘show and tell ‘session something like the followi

‘’Daddy had some friends over last weekend, all of Daddy’s friends went into his garage, and they were handing around his guns. I did not stay because they were drinking quite a bit of beer. ‘Daddy often leaves his safe door open’.

The school reported it to the Police who felt a need to investigate, and my client’s licence was suspended for 28 days while this investigation took place.

Once a report has been made, Police are really duty bound to investigate, and there are three approaches that that can be taken to this type of allegation. These are: reject it after investigation; criminally charge the shooter; or take administrative action against his licence.

In this case, closer examination revealed that the safe was indeed open – but only while he worked in the garage on his firearms, and that it was locked when Police attended to confiscate his firearms.

In terms of alcohol abuse, if the evidence is strong, and evidence is available from someone who has observed the shooter in possession of a firearm while intoxicated, a charge under s64 of the Firearms Act 1996 (NSW) may result.

In order to succeed with the charge, as there is no capacity for Police to request a breath test under Firearms legislation, it would be necessary for a credible person, particularly a Police Officer, to observe the shooter in an intoxicated state.

He would then need to give evidence about a strong smell of alcoholic drink, blood shot eyes, slurred speech, unsteadiness on their feet or inability to walk in a straight line to give evidence about the level of intoxication.

It is very hard to obtain a conviction under this type of section unless, in talking to Police, the accused makes damaging admissions about the amount that they have had to drink. This was why alcohol testing equipment was issued to Police in respect to traffic matters.

The other way that this type of matter can be dealt with is by administrative action against your licence. For this to occur there does not need to be a criminal conviction. It would involve the argument that you are not a fit and proper person to hold a licence because you are in possession of a firearm while intoxicated.

As the standard of proof in Administrative law matters is balance of convenience or reasonable satisfaction, it would be much easier to get a result against the shooter here than in a Criminal Court, where the standard of proof is beyond reasonable doubt.

An example of this type of decision is Jedrasiak v Commissioner of Police (2001) NSWADT 208 where a Police officer who had also worked as a bar man, gave evidence that Mr Jedrasiak, an armed security guard, smelt of alcohol on his breath, had red eyes and slurred speech. He was considered by the Tribunal to be mildly effected by alcohol. He was otherwise considered to be of good character.

He was considered not to be a fit and proper person to hold a firearms licence as he considered it acceptable to drink alcohol and then perform duties that involved carrying a firearm.

Such a finding may not however be the ‘end of the world’ for a person’s ability to hold a firearms licence, as Tribunals do recognise that people can change.

For example, in the Victorian case of Victorian Police v Firearms Appeals Committee VCAT 671 Police appealed a decision by the Firearms Appeals Committee to allow Mr Mills a licence on the basis that he no longer used drugs and only drank alcohol very occasionally.

After satisfying itself that Mr Mills had indeed changed the way he lead his life, Judge Jenkins, Vice President of the VCAT approved Mr Mills being granted a licence.

If you feel that you fall into this category, it is suggested that you seek legal advice before applying for a licence, as the application will proceed more easily if it is fully supported by evidence and reasons.

If you wish to drink and handle firearms (and note that Simon means handle not use and fire. Ed.), I suggest that you ensure that you and any guests have a blood alcohol level that is no more than .05, and be aware that this is an activity that can lead to individuals forming the wrong impression.

 I suggest that you refrain from unlocking a container of ammunition while you are drinking.




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