Casella v Queensland Police Service, Weapons Licensing Branch
[2014] QCAT 255
| CITATION: | Casella v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 255 |
| PARTIES: | Marcello Nello Casella (Applicant) |
| v | |
| Queensland Police Service, Weapons Licensing Branch (Respondent) |
| APPLICATION NUMBER: | GAR165-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 3 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 12 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application to stay the decision is refused. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW – STAY APPLICATION - WEAPONS LICENCING – application to stay a decision to suspend weapons licence Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Casella represented by Mr Pennell of counsel instructed by Rothwell Lawyers |
| RESPONDENT: | Queensland Police Service represented by A/Senior Seargent Bradford |
REASONS FOR DECISION
Mr Casella holds a firearms licence. The decision was made on 14 April 2014 by Weapons Licences to suspend his licence.
The information notice accompanying the suspension notice advised Mr Casella that the reasons for the decision were that:
a) the decision-maker was satisfied he had been charged with an offence against a law in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon; and
b) the decision-maker considered on reasonable grounds, that he may no longer be a fit an proper person to hold a licence due to it not being in the public interest.
Mr Casella has applied to review that decision. He also seeks a stay of the decision.
Both parties made written and oral submissions in relation to the stay application.
In his application to review Mr Casella asserted that despite what was said in the information notice, he has not been charged with any offence against any law in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon.
He concedes he has been charged with offences under New South Wales firearms and explosive legislation. These charges relate to the alleged possession of ammunition and the alleged negligent handling of explosives.
In its written submissions QPS concede that Mr Casella’s has not been charged with an offence involving the use, carriage, discharge or possession of a weapon.
They further concede that the line in the information notice which included a sentence regarding concerns for the mental fitness of Mr Casella was an error and does not relate to him.
They say that these errors do not invalidate the notice. They say the correct and preferable decision is that Mr Casella’s licence should be suspended as QPS, and the Tribunal on review, would in any event consider on reasonable grounds that Mr Casella may no longer be a fit and proper person to hold a licence considering the public interest.[1]
[1]Weapons Act 1990 (Qld) s 10B(1)(d).
Mr Casella says that the decision should be stayed pending the determination of the New South Wales proceedings. If I were to make that order then it would make the review application redundant. No doubt at the end of the New South Wales proceedings another decision will be made by QPS concerning the applicant’s licence depending on the outcome of those proceedings.
The question of whether the correct and preferable decision is to suspend his licence in the meantime on the basis that he is not a fit and proper person in the public interest will be determined on the review.
In this stay application it is not for me to decide the correct and preferable decision about the suspension of the licence – it is to decide whether to stay the decision pending determination of the review.
The circumstances of the New South Wales charges[2]
[2]See NSW Police Factsheet Exhibit CCB001 to QPS submissions 22 May 2014.
In February 2014, New South Wales Police executed a search warrant on a property owned by Casella Management Pty Ltd.
An alarm was activated when they entered the premises and Mr Casella subsequently arrived at the property.
In execution of the warrant the police ceased large quantities of shotgun ammunition and explosive propellant which had not been stored in accordance with legislative requirements.
The ammunition and explosives were being stored by the company Bronze Wing Ammunition Pty Ltd (‘BWA’). Mr Casella is the sole director of BWA.
BWA engages in the importation, manufacture and distribution of ammunition. BWA employed a manager (Mr Boyle) to oversee the business. He is the holder of all necessary permits and licenses associated with that business.
Mr Casella as sole director of BWA has consequently been charged with four offences under the NSW Firearms Act 1996 and NSW Explosive Act 2003[3] namely possessing ammunition without holding a licence, handling explosive precursor without an authorising licence, negligently handling explosive to cause a person injury, failing to comply with prescribed standards or codes and taking things that might ignite where explosives are handled.
[3]See page 3 QPS submissions 22 May 2014.
The charges have not yet been heard.
Applicant’s Submissions
Mr Casella says the stay should be granted in circumstances where:
· the decision-maker erroneously, according to the information notice, took into account irrelevant facts when forming the view that Mr Casella was not a fit and proper person to hold a licence namely the alleged breach of the Weapons Act and his mental health.
· there is no evidence that Mr Casella is a risk to public safety. He has held a licence since 2005 without any concerns.
· in relation to the New South Wales charges it is premature to find that he is not a fit and proper to hold a licence until such time as the facts around his control and operation of the company BWA are determined in the proceedings.
· he needs his licence for sporting activities. He is a competitive shooter and represents Indonesia in that sport. He says that if the suspension continues he will be unable to compete in any competitions which will hinder his preparation and qualification for the Olympic Games in 2016.
The Respondent’s Submissions
QPS concedes that Mr Casella has not been charged with any offence referred to in the Weapons Act and that the notice erroneously referred to concerns regarding Mr Casella’s mental health.
It says however, that for other reasons the authorised officer (and the Tribunal on review) would consider, on reasonable grounds, that Mr Casella may no longer be a fit and proper person to hold a licence.[4]
[4]Weapons Act 1990 (Qld) s 28(1)(b).
QPS submit that Mr Casella’s conduct (if the charges are proven) specifically relates to the good order of society. They say that the unsafe possession and handling of explosives and ammunition has the potential to result in serious damage or loss of life to people and the relationship of ammunition and precusor explosives is intertwined with the use of firearms.
It further submits that Mr Casella’s past criminal history is relevant. Mr Casella was sentenced in 1995 to five years imprisonment as a participant in a drug manufacturing matter. Mr Casella says that this criminal history should be disregarded particularly in circumstances where in 2005 he was judged fit and proper to hold a firearms licence despite these charges.
QPS also say that there is some evidence that Mr Casella may not be residing only in Queensland and as such is not entitled to hold a licence.[5] Mr Casella denies that allegation.
[5]Ibid s 10(2)(g).
Discussion
Section 22(4) of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’) gives the Tribunal power to stay a decision under review if such an order is desirable having regard to:
a) the interests of any person whose interest may be affected by the making of the order, or the order not being made;
b) any submission made to the Tribunal by the decision-maker for the reviewable decision see the public interest.
As the Appeal Tribunal noted in Deputy Commissioner Stewart v Kennedy[6] the determination of whether or not to grant a stay is a complex discretionary exercise but commonsense and authority both indicate that the usual questions to be addressed commence with:
a) Does the applicant have an arguable case?
b) Does the balance of convenience favour granting the stay?
[6][2011] QCATA 254.
In s 22 applications, additional specific regard be had as necessary to the factors mentioned in subsection (4).
It is not my task in considering the stay application to undertake a detailed assessment of Mr Casella’s prospects of success of overturning the decision on review but it should be possible to discern whether the applicant has an arguable case.[7]
[7]Ibid at [15].
I would accept in this matter that Mr Casella has identified some arguments upon which a case could be put that it was not reasonable for QPS to form the view that he is no longer a fit and proper person to hold his sporting shooters licence. For example, he was issued with a licence in 2005 and there have been no concerns regarding the use of his licence since that time. This is not to say that I would find in his favour for that reason but for the purposes of this stay application it is enough that he has raised an arguable point.
In cases such as this the balance of convenience factor is an important consideration.
The QPS make further reference to the Appeal Tribunal’s decision in Kennedy.[8] That case involved the stay of a decision to dismiss a police officer.
[8]Ibid.
Member the Honourable James Thomas made the comment:
But of far greater significance is the public aspect of staying a dismissal in police disciplinary proceedings. This is not ordinary civil litigation in which the contest is between two parties where a major consideration is whether it is reasonable to hold a successful party out from the benefit of a judgment. In Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306, 309 Kirby J observed that stays of the operation of decisions made under laws designed to protect the public “are in a class different from cases involving no more than the suspension of the operation of orders affecting to private litigants only”.
Whilst I acknowledge this case does not involve professional disciplinary proceedings, the comments concerning laws to protect the public are equally applicable in decisions concerning weapons licensing.[9]
[9]See Weapons Act 1990 (Qld) s 3 and s 4.
It is my view that in this case the balance of convenience weighs against the grant of a stay.
It is noted that Mr Casella has not been found guilty of any offence at this stage. As has been previously commented in stays of suspensions of weapons licenses:
The suspension is not based on the presumption of guilt but is an action designed by statute to achieve the objects of the Weapons Act which impose strict requirements on licenses authorising possession of firearms for public safety reasons.
The question to be determined is how the Tribunal should respond to the disparate interests of the applicant and the public at a time when the outcome of the charge laid against the applicant is not known.[10]
[10]Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149.
Mr Casella seeks to downplay the gravity of the offences. He says that the quanitity of ammunition was large because it was part of BWA’s commerical operation. He says that he is not the manager but only a director of the company.
The QPS say that the charges are serious. The unlawful possession, unsafe handling and unregulated use of explosives and ammunition has the potential to result in serious damage or loss of life.
I accept this argument. I also accept that the relationship of ammunition and the precursor explosives for ammunition is connected to the use of firearms.
The fact that Mr Casella was not the manager of the business or the authorised person does not detract from the fact that he was the sole director of the company. He had keys to the premises and had some degree of control and involvement in the activities of the business.
QPS have referred to Mr Casella’s past criminal history. Mr Casella urges the Tribunal to disregard this particularly in circumstances where he was granted a firearms licence in 2005 despite that history.
The past criminal history in itself is clearly not a reason to suspend his licence but Mr Casella should have been aware that having that history any future criminal conviction would reflect badly on the appropriateness of him to hold a weapons licence. The charges if proven would indicate a level of disregard for public safety.
Against these considerations Mr Casella’s position is that the suspension of his licence has a negative impact on his ability to train and prepare for selection as a competition shooter for the 2016 Olympic Games.
There was no direct evidence put forward by Mr Casella detailing the competitions or practice that he would have to forego if the suspension was not stayed.
Mr Casella represents Indonesia. It was noted that at the time of the stay application he was in Indonesia for the purposes of a shooting competition. As such it would appear there is no limitation on his ability to practice and compete in that country. He has made no submissions about possible financial detriment.
In those circumstances I am not convinced that any negative impact on Mr Casella overrides the need to ensure public safety.
I am not satisfied that it is desirable to stay the operation of the suspension and accordingly dismiss the stay application.
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