A few months ago, I wrote a widely-read article on Self Defence and Firearms, and I cautioned about the difficulties retaining one’s licence that may follow such an incident.
I have noticed that there has been considerable interest in shooter circles about the recent case of a Riverina Farmer, who accosted an armed intruder with an unloaded .22, only to then face the suspension of his firearms licence.
Here Firearms Registry staff would appear to be completely out of touch with most Australians.
This is a shame, because in my experience, with the exception of the Australian Public Service (‘APS’) lunacy belt, otherwise known as the People’s Republic of Canberra, which is close to where I live, public opinion has not changed much since 1811, when Mr Purcell of Country Cork, was knighted for killing four burglars with a carving knife while in his 70s!
I have found country juries fast to acquit where someone has had to defend themselves in the case of a home invasion, and the Barrister, who represented a friend who faced similar charges recounted to me that the Judge hearing the case suggested that the Crown withdraw the matter at the beginning of the trial with the remark:
‘the Jury are not going to want to punish him, they are going to want to reward him’ and after the Crown had withdrawn the matter, he remarked, ‘and don’t you let me hear you have given him grief over his gun licence either’.
Or words to that effect.
What sort of arguments can one raise, when one is faced by the Suspension of your firearms licence under these circumstances.
Firstly, the Firearms Registry is not supposed to be there to sit in judgement of people, that is for the Courts, and what they are supposed to do is look at public safety. It is most unlikely that, even if you get your licence back you shall ever need to defend yourself again.
Section 12(2) of the Act provides that a person does not have genuine reason for a licence if
‘the Applicant intends to possess the firearm or use the firearm for any of the following reasons:
(a) personal protection or the protection of another person
(b) the protection of property (other than in circumstances constituting a genuine reason as set out in the table to this section.
This prevents a licence being issued for personal protection.
The table to the section goes on to permit armed security guards to protect money and valuables, yet perversely not to possess firearms in order to protect human life, which to me suggests Parliament really got its priorities wrong here!
But the bad priorities go further. The private armies employed by some of Australia’s rich and famous do not go unarmed.
Any-way, I digress here, and I would be making the point very strongly about the genuine reason that I have a firearms licence for.
The second part of the problem is section 8- this covers what you have given permission to use a firearm for.
Those who read my 31 August 2017 article ‘Section 8 Madness’ will be familiar with this testament to Parliamentary stupidity. This section is already read very strictly and restrictively by the Registry, although I have recently had a major win in this area in a matter dealing with Paintball regulation.
In dealing with section 8, I would look to that body of law that deals with people who have had to break the law in order to avoid a greater evil. These are the defences are Necessity, Duress, Self Defence.
Necessity is a common-law defence that operates in circumstances of natural or human threats that bear upon an accused, and lead to them breaking the law in order to avoid more dire circumstances. There is here some overlapping with the defence of Duress R v Loughnan (1981) VR 443 at 448. For it to apply the accused must believe on reasonable grounds that he or she was in a situation of imminent peril, and the act done to avoid the imminent peril was not out of proportion to the peril to be avoided. (quoted from NSW Judicial Commission Bench Book at 6-350)
Duress. A person acts under duress and therefore involuntarily, if that person’s actions were performed because of threats (express or implied) of death or serious injury to himself, herself or dependants. (NSW Judicial Commission of NSW Bench book)
Self-defence was covered in an earlier article.
I would be stressing the measured response taken by the client in avoiding this greater evil, compared to what may have happened- an aggravated assault, possibly a murder, and perhaps the theft of firearms that may have been used in further offences.
JOIN THE FIGHT
Simon Munslow
National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au
Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.
He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.
This article is written for general information only and does not constitute advice.
He can assist you with:
Criminal law & Administrative law and in particular that related to Firearms
• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advices & opinions related to Firearms law matters
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