Curr v Brown

[2002] QDC 2

DISTRICT COURT OF QUEENSLAND
CITATION:	Curr v Brown [2002] QDC 002
PARTIES:	FRANK CURR Appellant
-v-
INSPECTOR GM BROWN Respondent
FILE NO:	2432 of 2002
PROCEEDING:	Appeal
ORIGINATING
COURT:	Magistrates Court
DELIVERED ON:	25 January 2002
DELIVERED AT:	Brisbane
HEARING DATE:	14 January 2002
JUDGE:	Judge Brabazon QC
ORDER:	Appeal allowed. Decision set aside. Refer back to Magistrates Court
CATCHWORDS:	FIREARMS – licence to use – conditions imposed on licence – procedure to be followed under legislation in assessing whether a licence should be issued WORDS AND PHRASES –“security guard” – “reasonably necessitate” – whether examples in Act should be relied upon MAGISTRATES – appeal from decision – whether an error of law Weapons Act 1990 – s149, s3, s4, s12, s6B, s11, s18, s125, s16, s17, s42, Weapons Regulation 1996- s48 Acts Interpretation Act 1954-s14D
COUNSEL:	Mr F Martin for the appellant Mr SA McLeod for the respondent
SOLICITORS:	Roberts & Kuskie for the appellant Queensland Police Service Solicitor for the respondent

The Appeal

1. This is an appeal according to the provisions of the Weapons Act 1990. The appeal

   is against a decision of the Magistrates Court, which heard an appeal against a

   decision made by Inspector Brown. That was a full rehearing, unaffected by his

   original decision. However, the appeal to this Court is only on a question of law –

   see s. 149 of the Act.

2. Inspector Brown made a decision imposing a condition on Mr Curr’s application to

   renew his licence to possess a concealable weapon. The learned magistrate

   confirmed his decision. The question for this court is, has there been an error of law

   in the Magistrates Court’s decision?

3. (There was some confusion about the nature of the appeal. No point is now taken

   about that – it is agreed that any necessary extension of time should be made to

   enable this appeal to proceed.)

   The Application

4. On 23 March 2000 Mr Curr applied to Queensland Police Service for the renewal of

   his weapons licence. He had held a licence since 1993, authorizing him to carry a

   concealable firearm. He was authorized to possess and use such a weapon

   (Category H):

   “In connection with the security of cash or valuables or other high risk items or substances held or transported by the licencee in the course of the licencee’s occupation as specified herein. The licencee is only to carry the firearm whilst performing security duties of a nature that necessitates or warrants the carriage of such firearms .

   ...”. (emphasis added)

5. At all times, Mr Curr had been in business as a pawnbroker. When he made his

   application in March 2000, he had interests in other businesses, but was personally

   in charge of the business at the Civic Centre, Inala.

6. The response of Inspector Brown, the officer authorized to consider his renewal

   application, is contained in a letter dated 2nd June 2000. The licence was renewed,

   but a new condition was imposed. See Exhibit 4 in the Magistrates Court.

   Possession of the concealable firearm was limited to the “specified purpose”. In

   turn, that purpose was described as “the protection whilst transporting cash and

   valuables in connection with the licencee’s occupation as the principal or employee

   of Inala Central Pawnbroker and for no other reason.” (emphasis added)

7. As before, the licence stated that: “the licencee may have physical possession of the

   weapon only when the duties being performed reasonably necessitate the physical

   possession of the weapon ...”.

8. Mr Kerr was dissatisfied with the new limitation, allowing possession only during

   the transport of cash and valuables in connection with the business and removing

   the reference to “held”. The learned magistrate upheld Inspector Brown’s decision.

   In this court, it was submitted for Mr Curr that her reasons for upholding the

   Inspector’s decision contain errors of law.

   The Weapons Act

9. Section 3 of the Act sets out its underlying principles:

“(a)	weapon possession and uses 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 ...;
(c)	the object of the Act is to prevent the misuse of weapons.”

1. Section 4 then sets out how those objectives are to be achieved. Relevantly, each

   person who wishes to possess a firearm under a licence has to demonstrate a

   genuine reason for possessing the firearm, and strict requirements must be satisfied

   before such a licence authorizes the possession of a firearm.

2. In this case, Mr Curr applied for the renewal of a security licence (guard). That is

   one of the 11 different types of licence. – see s. 12. He already had a licence, and

   apparently owned a Category H weapon. His personal fitness and competence to

   hold that licence was not in issue.

3. The Act recognizes two types of security guard. The first is the usual case where an

   organization, or perhaps an individual, is employed to provide security services.

   Secondly, the Act recognizes that business proprietors may themselves be “security

   guards” in relation to their own businesses. As section 6B puts it:

   “A ‘security guard’ is a person who patrols, protects, watches over or guards (‘protects’) the person’s property or other persons or other persons’ property ... in the course of carrying on a business ...

   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’.”

4. In this case, Mr Curr is a security guard as he protects, watches over, or guards the

   property of himself and other persons in the course of carrying on the pawnbroking

   business. It was not suggested in this court that he would only be a guard while transporting property in the course of carrying on the business. That is, it was not

   suggested that the example given in s. 6B would have that limiting effect.

5. To obtain a licence, an applicant must show a “genuine reason” for possession of a

   weapon. Section 11 provides for several reasons for possession of a weapon

   including “an occupational requirement”. Mr Curr relied on the requirements of his

   occupation of pawnbroker. As he put it in a letter attached to his application “this

   licence allows me to carry a concealable firearm in my occupation as pawnbroker-

   gun dealer to ensure the security of cash, valuables and any other high risk items”.

6. An application for renewal of a licence is made under s. 18 of the Act. It has to be

   then referred to an “authorized officer”, who must decide the application before the

   licence expires (s. 18(4)). In deciding the application, the authorized officer may

   consider anything at the officer’s disposal (s. 18(5)). The authorized officer must –

“(a)	approve the application and renew the licence subject to any conditions the authorised officer may decide; or
(b)	reject the application.”

A licence may be renewed by endorsing the existing licence, or cancelling the

licence and issuing a fresh licence.

Part IV, Division 8 of the Act deals with security guards and security

organizations. Section 125 provides that:

“A regulation may impose conditions on the possession and use of
weapons by persons performing the duties of a security guard”.

1. Part 7 of the Regulations deals with security organizations and security guards.

   Apart from the provisions dealing with security organizations, it can be seen that the

   following regulations would apply to Mr Curr:

“48(2)	“... a security licence (guard) authorizes the licencee
(a)	....
(b)	to possess and use any weapon of the type endorsed on the licence in performing duties as a security guard in a business in which the licencee is the only person who performs security guard duties, but only if the duties are not performed under a contract or another arrangement with a security organization.
(3)	However, the licence does not authorize a security guard to possess or use a weapon -
(a)	in a place if the reason or part of the reason a security guard is of the place is to maintain order of the place; or

(b) for private inquiry work; or

(c) for process serving or debt collection.

(3A) Also, the licence does not authorize 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 would reasonably necessitate the physical possession of a weapon – escorting cash or valuables”.

Inspector Brown’s Decision

1. Inspector Brown decided to renew the licence and impose the limitation on Mr

   Curr’s licence. His reasons are set out in his letter of 2 June 2000:

   “Dear Mr Curr

   I refer to your facsimile letter dated 24 May 2000 regarding the conditions of your Security Licence (Guard).

   Amendments to the Weapons Act 1990 during 1997 radically altered the requirements for the issue of weapons licences generally. An applicant must have a genuine reason for the licence and a need to possess a firearm.

   The amended legislation recognised that a person holding the superseded Business Carry Licence was performing the duties of a security guard and required a Security Licence (Guard) for that purpose.

   This type of weapons licence authorises the physical possession of loaded firearms in public and therefore additional constraints were legislated under section 48 of the Weapons Regulation 1996. This regulation sets out what a Security Licence (Guard) authorises. In particular subsection 3A provides, “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”.

   It is considered that the protection of cash and jewellery at business premises are not duties which reasonably necessitate the physical possession of loaded arms. This view is based on the principle that the requirement to protect valuable property on premises can be adequately met in a way not involving the use of a firearm.”

   The Magistrates Court Appeal

2. The appeal was heard on 8 March 2001. The appeal, by way of a fresh hearing, was

   heard before Her Worship Ms Payne. Evidence was called both by Mr Curr and

   Inspector Brown. It ranged over Mr Curr’s own experience as a pawnbroker in

   Inala, a serious assault which he suffered while at his shop, the level of crime in

   Inala, the lawful use of concealable firearms at other business premises, and the

   security systems in place at the pawnbroking business.

3. The learned magistrate’s conclusions about the facts may be summarized this way:

(a) There is a problem with the crime rate in Inala. However, there is no

disproportionate or significantly higher rate of violent crime being

committed on commercial premises by armed offenders, as

compared to the commission of crime generally in other areas;

(b) The level of lawlessness in the Inala District is not beyond the

resources of the Queensland Police Service to maintain order

although resources may be stretched or strained;

(c) When Mr Curr was being beaten by a group of men just outside his

business, he was able to prevent more serious injury to himself by

discharging his firearm into the ground. The men were there to

assault him, not to rob him;

(d) Undoubtedly, the possession of a weapon might prevent assault upon

a potential victim.

(e) The pawnbroking business is in an area where there are drug dealers

and drug users. There is an association between drug addicts and

pawnbrokers. Addicts often rely upon the sale of stolen property to

support their habit. Many of the persons who attend at the

pawnbroking business may be somewhat desperate.

(f) The significant amount of cash, valuables and firearms present could

make Mr Curr an attractive target for criminals (his evidence was

that the shop contained about $500,000 worth of firearms, jewellery,

and other goods);

(g) He carries on his business in a secure environment (the evidence

revealed that security at the pawnbroking business included a 24

hour monitored alarm system, 16 ml bars, a purpose built vault, glass

break detectors, deadlocks on the doors, and a purpose built safe.)

1. The learned magistrate then considered the Weapons Act and Regulations.

2. After mentioning the objects of the Act, and how they might be achieved (ss. 3 and

   4) the learned magistrate turned to the definition of “security guard”, including the

   example (referred to above) of a jeweller transporting jewellery in the course of carrying on a business. The definition, and the example, appear to be the foundation

   for her observation that:

   “Clearly, it is the intention of the legislature not only to significantly prohibit or restrict the possession of weapons but to further restrict or prohibit possession even if a person is licenced for particular circumstances. The appellant is a security guard pursuant to s. 6B of the Act ... The example (in s. 6B) is not simply a jeweller whilst carrying on his business as a jeweller, but it is the transporting of valuables, i.e. jewellery when he is away from his premises and consequently vulnerable to robbery or attack”.

3. The learned magistrate appears to have been unduly influenced by the example. As

   it happened, the example was close to Mr Curr’s own situation. It would be wrong

   to allow the example to limit the ordinary meaning of the definition, which says

   when a person will be a “security guard”. Indeed, that appears from s. 14D of the

   Acts Interpretation Act 1954:

   “14D Examples

   If an Act includes an example of the operation of a provision –

(a)	the example is not exhaustive and
(b)	the example does not limit but may extend the meaning of the provision and
(c)	the examples in the provision are to be read in the context of each other and the other provisions of the Act, but, if the example in the provisions so read are inconsistent, the provision prevails.”

1. Attention was then paid to s. 48 of the Weapons Regulation 1996. That regulation,

   set out above, is a consequence of s. 125 of the Act, allowing the imposition of

   conditions on the possession and use of weapons by security guards. As the learned

   magistrate observed, s. 48(3A) of the Regulations does not allow a person like Mr

   Curr to physically possess a weapon unless his duties actually being performed

   “reasonably necessitate the weapon’s physical possession”.

2. Again, there is an example given – the escorting of valuables. The learned

   magistrate’s reference to the example gives the impression that she was regarding it

   as a limitation on the ordinary meaning of the regulation. The regulation supposes

   that a licence is issued but then makes it clear that a weapon must not be physically

   carried at times when the actual guard duties being performed do not reasonably

   necessitate that. It does not say that the escorting of cash or valuables is the only

   time that the weapon might be in the security guard’s physical possession.

3. The learned magistrate adopted Inspector Brown’s expression, that “section 48 of

   the Regulations is the machinery section which authorises the possession of

   weapons for a security licensed guard (Brown, para. 31). That is hardly correct.

   Possession and use of a firearm is authorised, once a licence is granted, by ss. 16

   and 17 of the Act. Section 48(2)(b) of the Regulation sets out to make it plain that a

   person such as Mr Curr acts as a security guard “only if the duties are not performed

   under a contract or another arrangement with a security organisation”. Then, s.

   48(3A) assumes that a licence has been issued, and places a limit on the right to

   physical possession of the weapon – the security guard duties actually being

   performed must reasonably necessitate the weapon’s physical possession. Rather

   than being the provision which authorises possession of a weapon, it is a limitation

   on a right to possession given by a licence.

4. Consideration was then given to s. 42(3)(a) of the Act. Relevantly, that provision

   says this:

   “An authorised officer must decide an application for a permit to acquire a weapon ... the authorised officer must consider the following things when deciding whether the applicant has a need to possess the weapon –

(a) whether the applicant’s requirements can be adequately met in a way not involving the use of a weapon or by using a weapon of another category or type ...” (emphasis added)

1. It is apparent that s. 42, which is part of Division 3 of Part 4, deals with permits to

   acquire weapons. This application was not made under that Division, and Inspector

   Brown was not called upon to consider any application according to s. 42. Rather,

   his consideration of this application was to be made under s. 18. Section 42(3)(a)

   was not a statutory criterion that applied to this renewal application. Mr Curr did

   not ask for a permit to acquire a weapon. It can be seen that Inspector Brown’s

   reference to a need to possess the weapon was misplaced.

2. The learned magistrate referred to s. 42(3)(a), as if the authorising officer had to

   consider it. Her discussion of the evidence then appears to contain the same

   assumption, 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.

3. The learned magistrate was quite right in dismissing any idea that Mr Curr’s

   possession of his concealable fire arm might be justified by a need for his own

   personal protection. That is simply not something which is recognized by the

   definition of “security guard”. The justification for a licence is a concern about his

   own property, or other people and their property – not himself.

   Conclusions

4. It can be seen that the origins of the misconceptions mentioned above are in

   Inspector Brown’s evidence – see his affidavit. While this was a re-hearing afresh,

   the overall impression given by the learned magistrate’s reasons is she was not sufficiently critical of Inspector Brown’s reasons for his decision. There are

   reflections of his mistaken approaches in her reasons. His decision was confirmed

   by her.

5. Mr Curr was entitled to have his application for the renewal of his licence

   considered according to law. The learned magistrate, quite rightly, heard evidence

   about the facts from each side. She reached some concluded views about that

   evidence. It appears that both her conclusions from the primary facts and her

   ultimate conclusion, were affected by the mistaken approaches mentioned above.

6. The appropriate course now is that the matter should be referred back to the learned

   magistrate, to be reconsidered in the light of these reasons. The orders of the Court

   are these:

(a) The appellant is granted any necessary extensions of time within

which to appeal;

(b)	The appeal is allowed;
(c)	The decision of the Magistrates Court is set aside;
(d)	The matter is to be remitted to the magistrate who heard the appeal,

so that the appellant’s application might be considered afresh

according to these reasons.

1. (These reasons deal with questions of law. The decision is set aside, so that a fresh

   start can be made, on the basis of the evidence and the applicable statutory

   provisions. These reasons and that order, are not to be taken as expressing any

   opinion about the appropriate result.)

2. Counsel may wish to make submissions about costs.