Brown v Queensland Police Service - [2021] QCAT 293

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brown v Queensland Police Service [2021] QCAT 293

PARTIES:

STEPHEN JOHN BROWN
(applicant)

v

QUEENSLAND POLICE SERVICE

(respondent)

APPLICATION NO:

GAR425-20

MATTER TYPE:

General administrative review

DELIVERED ON:

18 August 2021

HEARING DATE:

22 June 2021

HEARD AT:

Caloundra

DECISION OF:

Member Dr Collier

ORDERS:

1.   The appeal is allowed.

2.   The decision of the Respondent is set aside.

3.   The matter is remitted to the Respondent for reconsideration according to law and in accordance with these reasons.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – where applicant for a Queensland weapons licence was the holder of a NT firearms licence – expiration of a firearms licence when holder is no longer a ‘permanent resident’ of a State – relevant test to assess whether an applicant is a fit and proper person – extensive criminal history – whether an applicant is a fit and proper person to hold a weapons licence

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where applicant for a Queensland weapons licence was the holder of a NT firearms licence – expiration of a firearms licence when holder is no longer a ‘permanent resident’ of a State

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – what evidence may be considered – evidence that may be considered under the Weapons Act 1990 (Qld) – evidence that may be considered under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – fit and proper person

Acts Interpretation Act 1954 (Qld), s 33A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28(3), Chapter 2 Part 1 Division 3

Weapons Act 1990 (Qld), s 3, s 10(2)(e), s 10B, s 10B(1), s 10B(1)(ca), s 10B(1)(d), s 10B(2), s 12(k), s 32, s 33,
s 10(2A), s 10(2B)
Weapons Regulation 2016 (Qld), s 19, s 77
Firearms Act 1997 (NT), s 14(2), Schedule 2, Schedule 3
Weapons Categories Regulation 1997 (Qld)

AD v Queensland Police Service – Weapons Licensing Branch [2021] QCAT 9
AJO v Director-General Department of Transport [2012] NSWADT 101
Australian Broadcasting Tribunal v Bond [1990] HCA 170 CLR 321
Bignell v Queensland Police Service – Weapons Licensing [2019] QCAT 211

CAT v Queensland Police Service [2017] QCATA 43

Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Hughes and Vale Pty Ltd v New South Wales (No. 2) [1995] HCA 28; (1955) 93 CLR 127
KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police [2016] QCAT 49
Powell v Queensland Police Service [2019] QCAT, 26 July 2019, unreported
Sobey v Commercial and Private Agents Board 20 SASR 70

TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

D Ayscough, Sergeant

REASONS FOR DECISION

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] QCAT 293
Decision Date

CaseChat Overview and Summary

The matter of Brown v Queensland Police Service was heard and determined by the Queensland Civil and Administrative Tribunal (QCAT). The Applicant sought to challenge the decision of the Respondent, the Queensland Police Service, to refuse to issue him a weapons licence. The Applicant argued that he was a fit and proper person to hold such a licence and that the decision to refuse him a licence was unreasonable. The primary legal issue before the Tribunal was whether the Applicant was a fit and proper person to hold a weapons licence. This required consideration of various factors, including the Applicant’s criminal history, his conduct in relation to weapons licensing, and his overall suitability to hold such a licence.

The Tribunal considered the Applicant’s extensive criminal history, which included serious offences, as well as his failure to provide full and truthful details on his weapons licence application. However, the Tribunal found that the Applicant’s criminal history did not necessarily disqualify him from holding a weapons licence, as many of his convictions pre-dated 1985 and were spent convictions. The Tribunal also noted that the Applicant had made at least two untrue statements in relation to his application for a weapons licence and before the Tribunal. Nevertheless, the Tribunal concluded that the Applicant was a fit and proper person to hold a weapons licence, taking into account his long history as a weapons licence holder, his lack of a reckless or careless approach to handling weapons, and the absence of any physical or mental impairment that would suggest it was in the public interest to refuse a licence.

The Tribunal allowed the Applicant’s appeal, set aside the Respondent’s decision, and remitted the matter to the Respondent for reconsideration according to law and in accordance with these reasons. The Tribunal found that the Applicant was a fit and proper person to be issued a weapons licence in Queensland, and that the Respondent’s decision to refuse him a licence was unreasonable. The Tribunal also noted that the Applicant’s failure to disclose his 2010 charge and conviction for possession of a controlled drug could be viewed as an oversight, even carelessness, and drew no adverse inference from this conduct. The final orders of the Tribunal were that the appeal was allowed, the decision of the Respondent was set aside, and the matter was remitted to the Respondent for reconsideration.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I conclude that the Applicant is a fit and proper person to be issued a weapons licence in Queensland.Decision The Tribunal makes the following decisions in this matter:1.The appeal is allowed.2.The decision of the Respondent is set aside.3.The matter is remitted to the Respondent for reconsideration according to law and in accordance with these reasons.

Ratio Decidendi

Legal Principle Established

Considerations that speak in the Applicant’s favour include:a)He has been a weapons licence holder since 1968, substantially on a continuing basis, until all his NT firearms licence expired on or about 25 May 2020;b)He does not appear to have handled or discharged weapons in a reckless or careless manner;c)He does not appear to suffer any physical or mental impairment that suggests it is in the public interest to refuse a licence, or to revoke a licence; [29] andd)He has no charges nor convictions for violent offences involving weapons.[29]AD v Queensland Police Service – Weapons Licensing Branch [2021] QCAT 9.Negative Considerations Two factors speak against the Applicant being issued a weapons licence, namely: his extensive criminal history; and his failure to provide full and truthful details on his weapons licence application. The Applicant has an extensive criminal history that includes serious offences. On the other hand, apart from his conviction in 2010 for possession of a controlled drug, all his convictions pre-date 1985, are spent convictions, and none involved the use of violence with firearms. In regard to his 2010 conviction for possession of a controlled drug, the Applicant testified that this involved the possession by him of a small quantity of marijuana for personal use. The penalty of $400 imposed by the Court suggests that the offence was a minor one. The Applicant’s carelessness in complying with weapons licensing obligations is also evident in his criminal history but, again, no convictions have been recorded in this regard after 1982. The Applicant has made at least two untrue statements in relation to his application for a weapons licence and before the Tribunal. The comment on his application to the QPS that all his charges pre-date 1985; and his testimony before the Tribunal that he has held a firearms licence continuously since 1968. The Applicant’s failure to disclose his 2010 charge and conviction for possession of a controlled drug could be viewed as an oversight, even carelessness. The Applicant testified that there was no benefit to him in failing to disclose a charge and conviction because such an erroneous statement can be readily checked by the QPS. I am inclined to draw no adverse inference from the Applicant’s failure to disclose his 2010 charge and conviction. On numerous occasions prior to 1983 the Applicant was convicted of possessing unlicensed firearms. His testimony before this Tribunal that he held a firearms licence continuously since 1968 is, therefore, either untrue, or represents a failure to make a full and complete disclosure of all relevant facts and matters. However, again, I have not drawn an adverse inference from the Applicant’s conduct. I am satisfied that his intention was not to mislead or deceive, rather, the Applicant was content to provide a general picture of events as he recalled them, even if some relevant, albeit dated, facts and matters were omitted from his testimony.Conclusions as to the Applicant’s fitness and propriety

CITATION:	Brown v Queensland Police Service [2021] QCAT 293
PARTIES:	STEPHEN JOHN BROWN (applicant)
v
QUEENSLAND POLICE SERVICE (respondent)
APPLICATION NO:	GAR425-20
MATTER TYPE:	General administrative review
DELIVERED ON:	18 August 2021
HEARING DATE:	22 June 2021
HEARD AT:	Caloundra
DECISION OF:	Member Dr Collier
ORDERS:	1. The appeal is allowed. 2. The decision of the Respondent is set aside. 3. The matter is remitted to the Respondent for reconsideration according to law and in accordance with these reasons.
CATCHWORDS:	FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – where applicant for a Queensland weapons licence was the holder of a NT firearms licence – expiration of a firearms licence when holder is no longer a ‘permanent resident’ of a State – relevant test to assess whether an applicant is a fit and proper person – extensive criminal history – whether an applicant is a fit and proper person to hold a weapons licence FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where applicant for a Queensland weapons licence was the holder of a NT firearms licence – expiration of a firearms licence when holder is no longer a ‘permanent resident’ of a State ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – what evidence may be considered – evidence that may be considered under the Weapons Act 1990 (Qld) – evidence that may be considered under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – fit and proper person Acts Interpretation Act 1954 (Qld), s 33A Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28(3), Chapter 2 Part 1 Division 3 Weapons Act 1990 (Qld), s 3, s 10(2)(e), s 10B, s 10B(1), s 10B(1)(ca), s 10B(1)(d), s 10B(2), s 12(k), s 32, s 33, s 10(2A), s 10(2B) Weapons Regulation 2016 (Qld), s 19, s 77 Firearms Act 1997 (NT), s 14(2), Schedule 2, Schedule 3 Weapons Categories Regulation 1997 (Qld) AD v Queensland Police Service – Weapons Licensing Branch [2021] QCAT 9 AJO v Director-General Department of Transport [2012] NSWADT 101 Australian Broadcasting Tribunal v Bond [1990] HCA 170 CLR 321 Bignell v Queensland Police Service – Weapons Licensing [2019] QCAT 211 CAT v Queensland Police Service [2017] QCATA 43 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1995] HCA 28; (1955) 93 CLR 127 KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police [2016] QCAT 49 Powell v Queensland Police Service [2019] QCAT, 26 July 2019, unreported Sobey v Commercial and Private Agents Board 20 SASR 70 TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	D Ayscough, Sergeant