Harlow v Queensland Police Service

[2009] QDC 151

[2009] QDC 151

DISTRICT COURT
APPELLATE JURISDICTION

JUDGE CLARE SC

Appeal No 3 of 2009

ANNETTE MARGARET HARLOW	Appellant
and
QUEENSLAND POLICE SERVICE	Respondent
LONGREACH ..DATE 03/06/2009
JUDGMENT

1-1

HER HONOUR: The appellant appeals against a conviction under

1

section 34(1) of the Weapons Act 1990, that is a contravention
of a condition of a weapons licence. The condition that the
appellant was said to have breached was a condition that, "The
weapons are to be stored in the gun safe of Ronald William

Morgan at 6 Thistle Street, Blackall 4472."	10
The hearing proceeded upon a set of agreed facts. A
convenient summary appears in the decision of the Magistrate
set out at page 1:
20

"Essentially the undisputed facts are that the defendant was at the relevant time the holder of a weapons licence and a copy of a certificate outlining the conditions of

such licence was admitted into evidence as Exhibit 1.

Condition 999 of the licence contains (in part) the	30
following condition; the weapons are to be stored in the gun safe of Ronald William Morgan at 6 Thistle Street, Blackall 4472.
On 27 August 2008 police attended at the residence of	40
Ronald William Morgan at 6 Thistle Street, Blackall.
Upon checking the weapons safe of Mr Morgan it was
ascertained that the two weapons registered to the
defendant were not in the safe. It was later ascertained
by police that the reason why the weapons were not in	50
that particular gun safe at the particular time was that the defendant had loaned two of her weapons to Kaylem Arthur Elmy. It was not in dispute that Mr Elmy was the

1-2 JUDGMENT 60

holder of a Queensland weapons licence and was authorised

1

to hold the relevant weapons."

The only issue at trial was whether those facts constituted a
breach of condition 999 to the appellant's licence.

The Magistrate first considered the principles and objects of	10
the Weapons Act and then gave these reasons for entering a conviction. At page 5 of his reasons:

"After considering the conditions on the licence issued

to the defendant together with the principles and	20
objectives of the Weapons Act, I reject the submissions
by the defence that at the relevant time the defendant
was not under an obligation to store the weapons in the
gun safe of Ronald William Morgan at 6 Thistle Street,
Blackall as she did not have control of the weapons at	30
the particular time. My view is that condition 999
imposes a specific mandatory obligation on the defendant
to store her weapons in the gun safe of Ronald William
Morgan at 6 Thistle Street, Blackall. Clearly condition
999 was included on the defendant's licence for a	40
particular purpose as considered necessary and
appropriate by the issuing authorised officer having
regard to the particular circumstances of the defendant.
As indicated earlier, I do not consider it necessary for
present purposes for me to delve into the reasons behind	50
that purpose. The fact that it has been included in the licence is sufficient but not purposeless. However, I do consider that it is appropriate that I consider the

1-3 JUDGMENT 60

purpose of including condition 999 on the licence. The

1

obvious purpose was to impose strict control on where the weapons were to be stored. My view is that condition 999 of the licence requires that the defendant store the
weapons at a particular place at all times (unless of

course she is acting in complying with the provision of	10
the Weapons Act). I consider that condition 999
effectively prevents the defendant from relinquishing
control of her weapons to another licensed person to store at another place. I consider that it would be inconsistent with the principles and objectives of the	20
Weapons Act for the Court to make a finding that the
defendant could abrogate her responsibilities under
condition 999 of her weapons licence by simply lending
her weapons to another appropriately licensed person. My
view is that condition 999 requires that the weapons be	30
stored in the gun safe of Ronald William Morgan at 6 Thistle Street, Blackall at all times (unless of course the defendant was acting in compliance with the provisions of the Weapons Act or Weapons Regulations)."
40

The notice of appeal lists five grounds. The five grounds are
really particulars of a complaint that the Magistrate

misconstructed condition 999 of the licence, and that the agreed statement of facts could not sustain a conviction. This is an appeal under section 222 of the Justices Act. In	50
accordance with section 223 it was therefore an appeal by way of rehearing on the evidence heard below. This means that it is not an appeal in the strict sense. It is not an appeal

1-4 JUDGMENT 60

against the exercise of a discretion. The appellate Judge is evidence and the legislation. 1

required to make his or her own determination on the evidence.

The appellant's argument is in two parts: firstly, that a	10
proper reading of the Weapons Act and the licence in question
must limit the application of the general conditions of the
weapons licence to the licence holder's possession of weapons; in other words, it is argued that the terms of the licence for the possession and use of weapons only apply when weapons	20
are in the possession of the licence holder; the second part of the argument is that the prosecution did not prove that the appellant was in possession of the relevant weapons at the time of the charge.
30
Section 3 of the Weapons Act, as the Magistrate recognised,
identifies the underlying principles of the Act as being that
weapons in possession and use are subordinate to the need to
ensure public and individual safety, and that public and
individual safety is improved by imposing strict controls on	40
the possession of weapons and requiring a safe and secure
storage in the carriage of weapons. Section 3(2) identifies
the object of the Act: "To prevent the misuse of weapons."
Section 4 sets out the ways in which the misuse of firearms is
to be prevented. There are five ways. They identify controls	50
on the weapons and on the holders of weapons. Specifically,
the legislation's object is to be achieved through prohibiting

certain weapons, a licensing and registration scheme for firearms, a licensing scheme with strict requirements of possession, acquisition and sale of firearms, and ensuring 1-5 JUDGMENT 60

storage facilities and knowledge of safety and maintenance for	10
storage.
Section 15(4) permits conditions to be imposed upon a licensed
holder, including limiting the use or possession of the weapon
and any other conditions that the authorised officer considers	20
appropriate in the circumstances.
The appellant accepts that condition 999, restricting the
storage of weapons in the appellant's possession, was properly
included in her licence. There is no claim that that	30
condition was ultra vires. That is a fair concession.
The issue of a licence is governed by section 16 of the Act
and section 16(1) provides that a licence must be endorsed
with any conditions decided by the authorised officer. The	40
parameters of the authority given by the licence are set out in section 49A. Section 49A makes it clear that the authority is an authority to possess and use a weapon subject to the conditions imposed upon the licence.
50

1

safe and secure storage of firearms. Before the issue of a
licence, the authorised officer may, pursuant to section 14,
inquire into a number of things, including the applicant's

This is consistent with the licence issued to the appellant. registered weapons. As Mr Goodwin, for the appellant, properly pointed out, the licence does not compel the 03062009 D.1 T4/HCL (Clare DCJ) 1-6 JUDGMENT 60

1

possession of weapons. On the other hand, if and when the
appellant does possess weapons, she must, of course, comply

with the conditions of her licence.

The way in which the possession of weapons lawfully acquired	10
can be surrendered is controlled by the legislation.
Pursuant to section 36 of the Weapons Act, the general rule is
that a sale or disposition must be through a licensed dealer
or police officer, or properly reported within a prescribed	20
time. In the present case, there was no registered disposal or formal transfer of the weapons, nor was there any suspension or amendment of any of the conditions of the appellant’s licence.
30
Section 36(3) exempts certain forms of disposal from the
formal requirements of recording the event. The appellant’s
loan to Mr Elmy was said to fall within the exemption,
subsection (3)(c), that is a disposal “on a temporary basis
for not more than 3 months without receiving any consideration	40
for the disposal or for the weapon”.
The critical question is whether the effect of such a loan was
to remove the weapons from the appellant’s “possession”.
Possession, for the purposes of the Act, is defined in	50
schedule 2:

"Possession includes, in relation to anything -

(a) having the thing in one's custody;

1-7 JUDGMENT 60

03062009 D.1 T4/HCL (Clare DCJ)

1

(b) having the thing under one's control in any

place, whether or not another has custody of the

thing;

10

(c) having an ability to obtain custody of the thing

at will;

(d) having a claim to custody of the thing which the

claimant has committed to the custody of	20
another notwithstanding that the thing is temporarily not in the control of the person having such claim."

The definition clearly is very broad.	30
When the appellant loaned her weapons to Mr Elmy, Mr Elmy had
possession of them within the meaning of paragraphs (a) and/or (b) of the definition. Mr Elmy was authorised to possess such weapons under the terms of his own licence.	40
Mr Elmy's possession, however, did not preclude the appellant from being in possession at the same time.
Paragraphs (c) and (d) of the definition are relevant. They	50

concern a present ability to claim or obtain custody of the
weapons. The agreed facts were that the appellant loaned
the weapons to Mr Elmy. The appellant relied upon section
36(3)(c) for the lawful authority for the loan. That
03062009 D.1 T4/HCL (Clare DCJ) 1-8 JUDGMENT 60

1

provision contemplates a short-term acquisition without the
giving of consideration. In such circumstances, the transfer
of the gun is exempt from the usual requirements for reporting

and permits through a licensed dealer or police officer.

10

In my view, the appellant clearly had a claim to the custody
of her own weapons gratuitously loaned to Mr Elmy. As I have
already observed, the different forms of possession under the
Act would permit more than one person to be in possession at

any given time.	20
It follows that I am satisfied that the appellant had possession during the loan to Mr Elmy. This means the guns
were not stored in Mr Morgan's gun safe as required by
condition 999. The appellant was in breach of that condition	30
of her licence. She was properly convicted.
The appeal is dismissed.
40

-----

50

1-9 JUDGMENT 60