Bannan v Queensland Police Service Weapons Licensing Branch

[2010] QCAT 634

CITATION: Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634

PARTIES:	Mr Lance Gary Bannan
V
Queensland Police Service Weapons Licensing Branch

APPLICATION NUMBER:   GAR292-10

MATTER TYPE: General administrative review matters

HEARING DATE:     6 December 2010

HEARD AT:  Brisbane

DECISION OF: John Bertelsen, Adjudicator

DELIVERED ON: 14 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The application for review is dismissed.

CATCHWORDS :  Respondents refusal to renew a firearms licence; whether the applicant is a fit and proper person; having regard to misleading renewal application, poor driving history and a history of minor offences.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Lance Gary Bannan was represented by Mr Wilson of counsel instructed by Hannay Lawyers
RESPONDENT:	Queensland Police Service Weapons Licensing Branch was represented by Senior Sergeant Cavanagh

REASONS FOR DECISION

1. On 12 April 2005 the Applicant applied for a weapons licence pursuant to the Weapons Act 1990 (the Act).  A firearms licence was issued expiring on 15 May 2010. 

1. The Applicant was required, prior to the expiration of the licence to apply for the renewal of that licence.  He did so by application dated 5 May 2010.  By notice dated 5 August 2010 the Respondent informed the Applicant that his application for renewal of his firearms licence was rejected.  That notice was accompanied by an information notice which summarised reasons for rejection as follows:-

   i)     Failure to disclose charges within the preceding 5 years

   ii)    The imposition of fines and disqualification periods for numerous traffic offences during the preceding 5 years

and concluded that it was not in the public interest to renew the licence.

1. Whilst it may be that the Respondent considered criminal intelligence as referred to in sections 10B, 10C and 18 of the Act it is clear that the primary reasoning for the rejection of the licence renewal application is what the Respondent considered to be the false or misleading statement made as an answer to question 9 of the renewal application and what it considered to be the irresponsible and uncontrolled behaviour of the Applicant as indicated by his traffic record.

1. For the purposes of this application the Tribunal stands in the stead of the original decision maker, namely the Respondent, and having regard to the material before it then makes the decision it considers to be the correct and preferable decision.  There is no onus of proof nor is there any presumption that the original decision makers decision was correct.  The Tribunal’s decision may confirm, vary or entirely replace the original decision makers decision.  The standard of proof to be applied is the civil standard, that is, the balance of probabilities.

1. Pursuant to section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) the Tribunal must hear and decide the review by way of fresh hearing on the merits in order to produce the correct and preferable decision. When considering who is a fit and proper person regard must be had to the public interest (section 10B(1)(d)).

Failure to disclose

1. Section 10(1)(c) of the Act states that the Respondent must consider an Applicant’s false or misleading statement when renewing a licence.  The statement must within the Applicant’s own knowledge be false or misleading.  In the subject renewal application at section 9 when asked whether or not he had been charged with an offence in the last 5 years, he answered no.  The Applicant asserted that he misunderstood section 9 of the application form; that he did not pay proper attention to that particular question when answering it; and that he had some difficulty due to limited education in reading and writing.  He stated that he did not intend to provide misleading information and contended that it was a case of being imprecise.

1. The renewal application is completed on the approved form.  It is a straight forward form requiring for the most part simple yes and no answers.  The Applicant otherwise completed the application correctly.  Ancillary documentation was properly produced, completed or attached.  It is not contentious that the Applicant had been charged with offences in the relevant 5 year period.

1. I do not accept the Applicant’s assertion that his limited education somehow lead to a misunderstanding of that particular question in circumstances where the renewal application itself was generally true and correctly completed.  There was no suggestion or assertion that he misunderstood any other question or portion of the application form.  Against that background I conclude that the Applicant must have known that his answer to question 9 in relation to charges was not true and correct. 

Imposition of fines and disqualifications

1. The Applicant in his application for review stated that the “basis of refusal of renewing my licence is excessive where judgement is made on minor matter such as traffic history”.  In his affidavit sworn 22 November 2010 the Applicant at paragraph 16 states that he does “not dispute that the criminal and traffic histories alleged by the police are accurate”.  It is well established on the authorities that irresponsible, uncontrolled, antisocial or behaviour constituting a risk to public safety does not have to be limited to the subject matter of, in this case, the renewal application.  Such behaviour exhibited in other areas of an Applicant’s interaction with those about him or her may determine whether that person is a fit and proper person to hold the licence applied for.  In other words as stated in Sobey v Commercial Agent Board 22 SASR 1979 page 70 at 75, “any previous breaches of the law, and any propensity towards offending against the law must in my view be regarded as of crucial importance”. In McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491 the Applicant’s lack of “responsibility in his attitude both to the system of law and order in the community and other road uses” was a compelling factor.  The Respondent determined that having regard to the Applicant’s prior record of offending that it could not be satisfied that there was no risk to the public associated with the Applicant being issued a firearms licence.  The Applicants admitted criminal and traffic history is indicative of a contempt and disregard for the law generally and particularly traffic regulations.  He is 38 years of age with breaches extending over 20 odd years.  It is not contested that the Applicant has accumulated 102 demerit points to date.  It is euphemistic to suggest that the traffic record is merely “unfortunate” and that because it does not fall within the worst category of traffic history it does not represent a flagrant disregard of traffic regulations.  The Respondent determined that the Applicants traffic record was such as to not render him a fit and proper person to hold a firearms licence. 

[10]  Where the Applicants ongoing traffic record and criminal history are indicative of a continuity of irresponsible and antisocial conduct it is fair to imply that such conduct could extend to his conduct as a holder of a firearms licence. 

[11]  The Applicant has provided misleading information in his application for renewal and demonstrated an ongoing disregard for his responsibilities as a law abiding citizen such as to exclude him from the category of a fit and proper person to hold a firearms licence.  It would therefore not be in the public interest for the Applicant to be issued with a firearms licence.

[12]  I affirm the reasoning and the decision of the original decision maker.  The application is therefore dismissed.