Curr v Brown

[2003] QDC 440

DISTRICT COURT OF QUEENSLAND

CITATION:	Curr v Brown [2003] QDC 440
PARTIES:	FRANCIS L CURR Appellant
v
INSPECTOR G BROWN Respondent
FILE NO/S:	D No 2420 of 2003
DIVISION:	Civil
PROCEEDING:	Appeal from Magistrates Court
ORIGINATING  COURT:	District Court, Brisbane, Appellate jurisdiction
DELIVERED ON:	8 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	21 November 2003
JUDGE:	Judge Robin QC
ORDER:	Appeal di0smissed with costs
CATCHWORDS:	Appeal to District Court from Magistrate’s Court under Weapons Act 1990 s 149 “on a question of law” – appealed decision confirmed authorized officer’s inclusion of a condition in a licence on renewal thereof more restrictive than had previously applied – appellant argued Magistrate had repeated her error in an earlier decision successfully appealed to District Court on ground of factor in irrelevant provisions of Weapons Act having been taken into account – appellant failed to establish repetition of the error.
COUNSEL:	C Martinovic for Appellant S McLeod for Respondent
SOLICITORS:	Roberts & Kuskie for Appellant C J Strofield, Queensland Police Service Solicitor, for Respondent

1. This is an appeal from a Magistrate under s 149 of the Weapons Act 1990 which permits an appeal by a party aggrieved “but only on a question of law.” The Magistrate had rejected an appeal brought against the respondent’s decision to impose new conditions upon the renewal of a licence which he has had for some 10 years now in the security (guard) class recognised in s 12(i) of the Act. Renewals are dealt with under s 18, which is, in part:

   “(5) In deciding the application, the authorised officer may consider

   anything at the officer’s disposal.

   (6) The authorised officer must—

(a) approve the application and renew the licence subject to any conditions the authorised officer may decide; or

(b) reject the application.

(8) A licence may be renewed by—

(a) endorsing the existing licence; or

(b) cancelling the licence and issuing a fresh licence endorsed with any condition decided by an authorised officer or other information.”

Section 142 creates a right of appeal to the Magistrates Court, in particular in respect of a decision imposing or amending a condition applying to a licence, permit, approval or other authority under the Act: s 142(1) (d)).

1. The original condition of present interest in Mr Curr’s licence (as noted by the Magistrate) was:

   “This license authorises the licensee to have possession of and use of one (1) category H weapon registered to this license in connection with the security of cash or valuables or other high risk items or substances held or transported by the licensee in the course of the licensee’s occupation as specified herein. The licensee is only to carry the firearm whilst performing security duties of a nature that necessitate or warrant the carriage of such firearm. The weapons is to remain in secure storage unless otherwise authorised, justified or excused by law.” (Emphasis added)

2. The new condition (BS3, instead of BS1, to use the jargon) was:

   “This license authorises the licensee to have possession of one (1) category H weapon registered to this license, for the “specific purpose” only. Only one (1) category H weapon with a calibre of no less that .22 and no more than .40 may be registered to this license at any one time. The licensee may have physical possession of the weapon only when the duties being performed reasonably necessitate the physical possession of the weapon. The licensee must record details in the security guards register as per section 126A (1) of the Weapons Act 1990, on each occasion where there is a need to physically possess and/or use the weapon. The weapon is to remain in secure storage unless otherwise authorised, justified or excused by law.”

3. From Mr Curr’s point of view, the unwelcome feature of the change was “condition code 999”, providing:

   “The “specific purpose” is the protection whilst transporting cash and valuables in connection with the licensee’s occupation as the principal or employee of Inala Central Pawnbroker and for no other reason. This license remains in force only whilst the licensee is the principal or employee of the business Inala Central Pawnbroker.” (Emphasis added)

4. Before this court, no complaint was made of the other new condition that Mr Curr record details of occasions of actual physical possession and/or use of a weapon. Mr Martinovic’s submissions on his behalf dwelt on the impracticality or inappropriateness in Mr Curr’s business of the restriction to occasions of “transporting”.

5. While the appeal to the Magistrate was one by way of rehearing, unaffected by the decision appealed against (s 147(1) of the Act), in which the Magistrate might have confirmed Inspector Brown’s decision, set it aside and substituted another decision or returned the matter to Inspector Brown ‘with directions’, the court having the same powers as an “authorised officer” in substituting another decision (s.148), this court is strictly limited to considering questions of law, any views it might hold regarding the merits being utterly beside the point.

6. The error of law which Mr Martinovic, on behalf of the appellant, contended had been established was the consideration by the Magistrate of matters referred to in s 42 of the Act, in particular in subsection (3)(a) which requires an authorised officer to consider (when deciding whether the applicant for a licence has a need to possess the weapon desired to be acquired) “whether the applicant’s requirements can be adequately met in a way not involving the use of a weapon”. It seems clear that the respondent applied that provision in formulating the new conditions.

7. Mr Curr’s appeal was heard originally on 8 March 2001 by the same Magistrate. Evidence was called on both sides. The appeal was unsuccessful, but an appeal to this court heard by his Honour Judge Brabazon QC was successful. See Curr v Brown [2002] QDC002, now reported in 23 Qld Lawyer R 10. I am grateful to be able to treat his Honour’s reasons as incorporated in this reasons of mine, both parties accepting them as correct. It was determined that the respondent wrongly had regard to s 42, which had no part to play, and that the Magistrate had succumbed to the same error, as his Honour noted at [28], in “referring to what was ‘necessary’ for Mr Curr’s business. It seems that she also has considered s 42(3)(a), as if it applied to his renewal application”. His Honour thought there was further error in the misuse of the ‘example’ of a ‘security guard’ (which Mr Curr is, given relevant definitions) in s 6B of the Act:

   “Example -

   A jeweller transporting jewellery in the course of carrying on a business who does not engage someone else to guard the jewellery while it is being transported is a ‘security guard’ ”.

   and in respect of s 48(3A) of the Weapons Regulation 1996:

   “ (3A) Also, the licence does not authorise a security guard to physically possess a weapon unless the security guard duties actually being performed reasonably necessitate the weapon’s physical possession.

   Example of security guard duties which reasonably necessitate the physical possession of a weapon-

   Escorting cash or valuables.”

8. Pursuant to Judge Brabazon’s remitting the matter “to the Magistrate who heard the appeal, so that the appellant’s application might be considered afresh according to these reasons” , the Magistrate conducted a further hearing, in which it seems to have been common ground she might use the evidence previously adduced. She furnished extensive typewritten reasons dated 26 June 2003 in support of her decision to confirm again the decision appealed against.

9. The consequence has been a second appeal by Mr Curr to this court, in which it is asserted, essentially, that the Magistrate has repeated the error(s) identified by Judge Brabazon. Although the Magistrate’s Court file has been transmitted to this court, it appears not to contain any reasons relative to the Magistrate’s determination following the March 2001 hearing. Mr Martinovic offered to hand up a copy of such reasons in his possession; however, I declined to receive it, given the advanced stage which the hearing before me had then reached. A good idea of the content of those reasons may be gleaned from paragraph [19] ff of his Honour’s reasons for judgment. It appears there is a good deal of repetition in the reasons of 26 June 2003, which may be defended on the basis of economy. It is plain from what the Magistrate said on the later date, on the occasion of making her order in court, that she was cognisant of and sought to proceed “according to his reasons”.

10. I have been concerned, in considering this appeal, that the Magistrate may have applied s 42(3), (a) notwithstanding that the reasons make no reference to it. What was said regarding the adequacy of police resources in the area and the high security environment Mr Curr had created in his premises looks very much like a listing of factors tending to show that “the applicant’s requirements can be adequately met in a way not involving the use of a weapon”.

11. One would not expect a Magistrate to fall into an error already identified by an appeal judge for a second time, in the same matter, and to offer evidence of having done so, not once, but twice (at pp 5-6 under “Conclusions on the Facts” and again on p 7) in carefully prepared reasons. The two factors I have highlighted, along with others, some of which pointed to the need for a weapon to be available to protect property being “guarded” by Mr Curr as he operated his business in his premises, would be appropriate under s 18 of the Act, which provides, in part, as noted in [1]:

    “ (5) In deciding the application, the authorised officer may consider

    anything at the officer’s disposal.

    (6) The authorised officer must –

    (a) approve the application and renew the licence subject to any conditions the authorised officer may decide;”

12. The reasons conclude, under the heading “The Decision of this Court”, as follows:

    “The principles underlying the Act is that weapon possession and use are subordinate to the need to ensure public and individual safety and public and individual safety is improved by imposing strict controls on the possession of weapons.

    When considering on the one side that by having possession of a weapon in the course of carrying on his business, the appellant can shoot at or threaten with his weapon offenders or even that the mere possession of a weapon would deter offenders and on the other side the possession of a weapon may endanger the lives of other customers and that it may encourage offenders to be armed, including with a firearm which of itself would be inherently dangerous and could encourage shootouts between the offender and the appellant, that when applying the principles underlying the Act being the subordination of weapon possession to public and individual safety, I consider a restriction or limitation on the appellants weapon possession is required.

    Further, the object of the Act requires each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm.

    The appellant is a firearms dealer and pawnbroker who operates his business in very secure premises.

    Further, although there is a significant level of lawlessness in the Inala area it is not beyond the resources of the Queensland Police Service to maintain order. Also, the rate of violent crime being committed on commercial premises by armed offenders in the Inala area is not significantly higher or disproportionate to other areas.

    The appellant is a security guard pursuant to the provision of the Act. A security guard licence does not authorise him to physically possess a weapon unless the security guard duties actually performed reasonably necessitate the weapon’s physical possession (See section 48 (3A) of the Act).

    I do not consider in these circumstances there is a reasonable necessity for the appellant to possess a weapon which in the course of carrying on of his business he is in his business premises.

    Accordingly, for these reasons I confirm the decision appealed against.”

13. Sections 3 and 4 of the Act might be noted:

    “3 Principles and object of Act

    (1) The principles underlying this Act are as follows—

(a)	weapon possession and use are subordinate to the need to ensure public and individual safety;
(b)	public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.

(2) The object of this Act is to prevent the misuse of weapons.

4     How object is to be achieved for firearms

The object of this Act is to be achieved for firearms by –

…

(c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and

(d) providing strict requirements that must be satisfied for—

(i)         licences authorising possession of firearms; and

(ii)          the acquisition and sale of firearms; and

(e) ensuring that firearms are stored and carried in a safe and secure way.”

It was open to the Magistrate to have regard to those matters, which appear to me potentially relevant to any decision to be made under the Act.

1. In the end, I agree with Mr McLeod, who appeared for the respondent in the appeal, that the Magistrate’s reasoning is unexceptionable. The key is in the penultimate paragraph, which may fairly be seen as referring to s.48(3A) of the Regulation, rather than to any irrelevant consideration. It is set out in paragraph [8] above.

2. I am sympathetic to Mr Curr’s frustration at the situation. This court has no jurisdiction to make any substantive determination. It could do no more than remit the matter to the Magistrate. If she has, for a second time, misapprehended her function, then it is to be hoped that it would not happen a third time. That she has dismissed Mr Curr’s appeal for a second time does not indicate that she applied the same reasoning. It would be a possible outcome that, proceeding without error, she might reach the same ultimate conclusion yet again, by a different route. It does not matter that another magistrate might take a different view. No more than Judge Brabazon can I say that the only correct result in Mr Curr’s appeal to the Magistrates Court was “appeal allowed”.

3. This court may not direct removal of the troublesome condition. The decision is for the Magistrate. The system will come into disrepute if this particular application continues to be tossed to and fro between courts. It is the case that it can fairly be said again, as Judge Brabazon said (paragraph [30]), that “the overall impression given by the learned magistrate’s reasons is she was not sufficiently critical of Inspector Brown’s reasons for his decision.” Given that her task was to determine the fate of Mr Curr’s application afresh, nothing of particular value would be achieved by incorporating criticism of the respondent, which has already come from his Honour. It is for the appellant to persuade this court that the error allegedly committed by the Magistrate was committed; he has failed to do so, although the matter is a close one. I reiterate that this court’s views regarding substantive questions are immaterial.

4. Part of the concern harboured by Mr Curr in the present situation relates to uncertainty as to how “transporting” will be interpreted. One would expect those concerned to approach the matter in a reasonable, practical way. It is accepted that Mr Curr has been and is a responsible weapon owner. As the Magistrate’s reasons demonstrate, however, proper community concerns have produced a legislative and regulatory regime in which use of weapons at traditional levels and in traditional ways is being cut back.

5. Mr Curr may be obliged to wait until some new condition is imposed on a renewal of his licence, to see how he fares in a new appeal. The respondent’s decision was made as long ago as June, 2000. Mr Curr is apparently subject to a regime of annual renewals at present; it may be that he could try his luck in a new appeal against the same conditions, but I express no view as to the effect existing decisions might have on that situation.

6. The appeal to this court must be dismissed, and, consistently with the agreement of counsel in the appeal that costs should follow the event, with costs to be assessed. That is, the appellant must pay the respondent’s costs.