Henderson v Queensland Police Service Weapons Licensing Branch

[2010] QCAT 639

CITATION: Henderson v Queensland Police Service Weapons Licensing Branch [2010] QCAT 639

PARTIES:	Darren Robert Henderson
V
Queensland Police Service Weapons Licensing Branch

APPLICATION NUMBER:   GAR280-10  

MATTER TYPE: General administrative review matters

HEARING DATE:     21 October 2010

HEARD AT:  Brisbane

DECISION OF: Mr Jim Allen

DELIVERED ON: 9 December 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The application is dismissed.

CATCHWORDS :  Review application under the Weapons Act 1990; section 10B, whether false and misleading statement, whether fit and proper person to hold licence, whether in public interest

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Henderson
RESPONDENT:	Senior Sergeant Cavanagh

REASONS FOR DECISION

1. Mr Henderson made an application dated 15 June 2010 for a “sports or target shooting” licence under the Weapons Act 1990. A notice of rejection of the licence application was issued on 30 July 2010 by an authorised officer, senior sergeant Cavanagh of the Weapons Licensing branch and received by Mr Henderson on 13 July 2010. Mr Henderson has made application to the Tribunal for a review of the decision to reject his application for a licence.

2. Under section 10 of the Weapons Act 1990 the applicant for a weapons licence must amongst other things be a “fit and proper person to hold a licence” and have a reason mentioned in section 11 to possess the weapon or the category of weapon. The requirements as to fit and proper person are set out in section 10B of the Weapons Act 1990.

3. The reasons for the rejection of the application were set out in an information notice which accompanied the notice of rejection. They first stated that the Principles and Objects of the Weapons Act 1990 (the Act), include that weapons 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 the possession of weapons. It then referred to section 10B of the Act which provides matters that must be taken into consideration when determining if a person is or is no longer a fit and proper person for the issue or renewal, suspension or revocation of a weapons licence. In particular section 10B(1)(c) requires that the authorised officer must consider if the applicant has stated anything in their application for the issue of a licence that is false or misleading. One of the questions on the application form is

   Have you in Queensland or elsewhere EVER been charged with an offence?

Mr Henderson answered in the negative to this question and signed a certification that all information in the approved form was true and correct in every detail. In fact on 30 March 2010 Mr Henderson was dealt with in the Pine Rivers Magistrate Court on numerous drugs misuse offences. The authorised officer determined that Mr Henderson had made a false or misleading statement in claiming that he had not been charged with an offence. It was stated that, by virtue of section 157(2) of the Act any licence or approval obtained by any false or misleading statement was void. And that a licence obtained as a result of that false or misleading statement would be void.

1. The reasons also had regard to the requirement in section 10B(1) that the public interest be considered when determining if a person is a fit and proper person to issue or refuse a licence. After noting that the act does not list the factors which must be taken into account in regard to the public interest, the decision maker referred to several decisions of the Courts namely, Director of Public Prosecutions v Smith 1 V.R. 51 at 63 and Comalco Aluminium (Bell Bay) Ltd v O’Connor and others (1995) 131 ALR 657 as providing guidance.  From Smith’s case it was noted that the public interest included standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. From the Comalco case, in determining the public interest it is necessary that the interests of the whole community are matters for consideration and that the reference to public interest is to amplify the scope and purpose of the legislation. Reference was also made to the decision of Toohey and Guadron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 where they considered the meaning of “fit and proper person “ as follows

   The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

2. The decision maker then noted that the offences in March 2010 were the second time that Mr Henderson had been before the courts in relation to drugs misuse offences. In an affidavit filed in this matter senior sergeant Cavanagh stated that their had been a crime stopper notification on 3 March 2007 that Darren Henderson was selling drugs from his home. From the principles in Bond’s case the decision maker noted that improper conduct had occurred, that it had occurred previously, and that given Mr Henderson’s history it could not be assumed that it would not occur and the general community could not have confidence that it would not occur. The decision maker then referred to the principles and objects of the Weapons Act 1990 providing that the possession of weapons is subordinate to the need to ensure public safety and that it was not in the public interest to issue Mr Henderson with a licence.

1. The Tribunal when reviewing a decision such as this does so by way of fresh hearing on the merits in accordance with section 20 of the Queensland Civil and Administrative Tribunal Act 2009. This means that the Tribunal is not limited to the material which was before the original decision maker but may rely on material which is put before it during the course of the application. In this case it is clear from Mr Henderson’s application for review that since the original licence application he has moved to North Queensland. He states that he did so to enjoy the hunting and fishing this area has to offer. He further states that

   I am currently employed as a trailer repairman … and encounter a lot of folk in my region who would like me to reduce the amount of feral pigs on their properties, I have stayed at a couple of properties and used their old inaccurate rifles, I think it would be more humane if I had my own accurate rifle to reduce their numbers and fill my freezer.

This raises an issue about the purpose for which Mr Henderson had applied for his licence. In his application Mr Henderson stated that the purpose for which he required his licence was for “sports and target shooting” and he complied with the requirements of the Act in regard to an application of that type by providing proof of membership of an approved shooting club.  This is in accordance with section 13 of the Act. Where the application is for a recreational shooting licence, such as Mr Henderson would need for pig shooting, section 13(3) states that the applicant must provide written permission form a landowner authorising the applicant to shoot on the landowner’s rural land. At the hearing Mr Henderson confirmed what was stated in the application for review. When asked why he had not pursued the recreational shooting licence he stated that it was too difficult to get the required written permission from landowners. It should be noted that Mr Henderson did confirm in his application for review that he would like to represent the Queens Shoot in 2012.

1. In regard to his reason for not mentioning that he had been charged with the drugs misuse offences Mr Henderson stated in his application for review that

   When I filled out the form I did not realize that the not recorded chares would be taken into consideration, the charges were not recorded so I could go back to Blackall and shoot roos for a living, as is recorded in the judge’s decision. The previous charge mentioned was also not recorded because the drugs found were not mine and a small amount this was 10 years previous to the last charge. At no stage was I trying to make a false and statement, I am just ignorant of legal proceedings,

At the hearing Mr Henderson confirmed the above matters and stated that he knew that he had been charged and pleaded guilty but that he had not completed year 12 and had not read the application properly.

1. The affidavit of Senior Constable Goeths, the police officer who led the raid on Mr Henderson’s residence in regard to the most recent charges, describes what he found in the house as an “active cannabis growing hydroponic set-up”. He stated he found 48 cannabis plants in total.  It is stated that the power had been diverted from the meter box to supply the room with electricity and that Mr Henderson had said that he did not want to pay the higher electricity bills. Senior Constable Goeths states that Mr Henderson said that the set-up in the house was for personal use and that and that he was a regular user of cannabis. Senior Constable Goeths states that a set-up such as this would have a more sinister nature and would go beyond personal use. At the hearing and in written submissions Mr Henderson stated that he had pleaded guilty to the charges to protect his wife and that he was not a user of drugs. Mr Henderson admitted to having stolen the electricity and that the room was set up in the way described in the affidavit of senior constable Goeths. He said that he had set up the cannabis growing area because his wife complained she was not getting any money and it provided her with an income.

2. If Mr Henderson had been convicted of any offences relating to the misuse of drugs section 10B(2) of the Act would have deemed him not to be a fit and proper person. Mr Henderson has been charged with several drug offences and fined but no conviction has been recorded in regard to these offences so he is not automatically deemed not to be a fit and proper person, The fact of those charges though can be taken into account when considering whether or not Mr Henderson is a fit and proper person in accordance with the decision of Brabazon J in Liseo v Queensland Police Service District Court of Queensland Service D885 of 2006. In that case Mr Liseo had also not disclosed charges for which he had pleaded guilty with no conviction recorded and was found to have deliberately given a wrong answer to that question on his weapons licence application and that it was correct for the decision maker to have taken that into account under section 10B(1)( c) of the Weapons Act 1990. Brabazon J stated that Bond v Australian Broadcasting Tribunal decision was a leading case in regard the meaning of the expression “fit and proper person”. And that the decision maker had correctly taken account of the knowingly false and misleading information that Mr Liseo had been charged with the two offences to which he had pleaded guilty in determining that he was not a fit and proper person having regard to the objects of the Act.

10.  Mr Henderson has in terms of his conduct displayed that he is prepared to commit offences such as the misuse of drugs and the stealing of electricity. He has provided justification for these offences such the need to provide an income for his wife and not wanting to pay for electricity. These reasons are not in accordance with generally acceptable standards and indicate that Mr Henderson has little regard for the law. Whether or not Mr Henderson knew that the statement he made in his application in regard to being charged with offences was false or misleading is secondary to the fact of those charges. If his statement had been accepted and a check had not been made on his criminal history and he had received a licence then section 157 would have applied to make it void if the issue had later come to light. 

11. The object of the Weapons Act is in accordance with section 3(2) to prevent the misuse of weapons and one of the ways this is to be achieved is to require a person to show a genuine reason for possessing a firearm. In this case Mr Henderson asserted in his application for the licence that his purpose was to obtain a licence for “sports or target shooting”. It is clear form Mr Henderson’s application for review and his oral evidence at the hearing that he primarily wished to obtain the licence for the purpose of shooting kangaroos and feral pigs. He stated that charges were not recorded so I could go to Blackall and shoot roos for a living, as is recorded in the judge’s decision. It is clear that as mentioned above if the convictions had been recorded then Mr Henderson would have been deemed not to be a fit and proper person. The fact though that he has applied for a licence of for one purpose when his intention was to use the weapon for another purpose means that Mr Henderson has made another false and misleading statement in his application. When asked why he had not applied for the correct licence he stated that he had found it difficult to obtain authorisation from land owners.

12. When considering a licence application the decision maker must have regard to the purpose for which the weapon is required and having regard to all of the circumstances determine whether it is appropriate to grant a licence for that purpose. It may be that a person is found to be suitable to hold a licence for one purpose but they would not be suitable to hold a licence for another purpose. If there are requirements which need to be met such as authorisations form landowners before a licence could be granted for a purpose then obviously the failure to provide those authorisations would be fatal to the application.

13. Mr Henderson has a history of engaging in conduct which constitutes offences against various laws including the Drugs Misuse Act 1986 and he has been charged with those offences. This conduct demonstrates a disregard for the law and this has been further displayed in Mr Henderson’s willingness to make an application for a weapons licence based on a purpose which was not the primary purpose for which he intended to use the weapon. The principles of the Act are that weapons possession and use are subordinate to the need to ensure public safety and public safety is improved by imposing strict controls on the use of weapons. The object of the Act is to prevent the misuse of weapons. These matters are clear and would constitute the public interest in respect of the determination of whether or not an applicant is a fit and proper person to hold a licence. By his conduct Mr Henderson has demonstrated that the grant of a weapons licence to him would not be in accordance with the principles and objects of the Act and he is therefore not a fit and proper person to hold a weapons licence. The Respondents decision is confirmed. The application is dismissed.