Klass v Queensland Police Service - [2022] QCAT 38

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Klass v Queensland Police Service [2022] QCAT 38

PARTIES:

DARREN PETER KLASS

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR067-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

31 January 2022

HEARING DATE:

15 October 2021

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The correct and preferable decision is to confirm the decision of the Queensland Police Service – Weapons Licensing dated 1 December 2020 to suspend the firearms licence of Darren Peter Klass.

The Applicant’s Application filed on 27 January 2021, to review the decision of the Queensland Police Services – Weapons Licensing dated 1 December 2020 is dismissed.

CATCHWORDS:

FIREARMS – LICENSING – SUSPENSION OF LICENCE – FIT AND PROPER PERSON – where a review of the decision made to suspend a firearms licence – whether the applicant is a fit and proper person to hold a firearms licence – whether it is in the public interest for the applicant to continue to be the holder of a firearms licence – whether correct and preferable decision – where applicant attempts to import a sound suppressor – where licence issued for recreational shooting on rural lands – where sound suppressors are prohibited weapons in Category R – the possession and use of sound suppressors are heavily regulated

Weapons Act 1990 (Qld) s 10B, s. 29(1)(b) and s 142

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 18, s 19, and s 20

Weapons Regulations 2016 (Qld) Part 26

Australian Broadcasting Tribunal v Bond [1990] 94 ALR 11

Ward v NSW Commissioner of Police [2000] NSWADT

Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors [1995] 131 ALR 657

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Sergeant D Ayscough appeared for the Queensland Police Service

REASONS FOR DECISION

On 1 December 2020 the Queensland Police Service – Weapons Licensing (“QPS”) pursuant to s.28(1)(b) of the Weapons Act 1990 (“the Act”) suspended the firearms licence of Darren Peter Klass (“Mr Klass”) on the grounds that he may no longer be a fit and proper person to hold a licence due to it not being in the public interest.
QPS provided information to Mr Klass that the suspension of his firearms licence was made after consideration of the matters in s.10B of the Act and on further information including information from the Australian Border Force that on 19 July 2020 Mr Klass was a consignee of a prohibited item, namely a sound suppressor[1]. Sound suppressors are a Category R[2] weapon and are prohibited in this state. This prohibited item was seized by Australian Border Force.
[1]A “sound suppressor” is also known as a “silencer” for a firearm.
[2]Category R weapons are the most serious category of weapons and can only be in possession of persons with a collector’s licence or a dealer’s licence on the proviso that the items are rendered inoperable (s.77 and s.88 of the Act) or in certain circumstances a licenced armourer(s.69 of the Act) or have an exemption from the Police Commissioner (see Part 26 of the Weapons Categories Regulation).
Mr Klass held a firearms licence for recreational shooting for Categories A and B firearms. He was not licenced to possess a sound suppressor.
On 27 January 2021 Mr Klass filed in the Tribunal an Application to review QPS’s decision to suspend his firearms licence. While the Application was filed out of time, the Tribunal subsequently[3] extended the time to 27 January 2021 in which Mr Klass could file the Application. This allowed the Application to proceed in the Tribunal.
[3]QCAT Orders dated 1 June 2021.
The Tribunal, in undertaking the review of the QPS decision to suspend Mr Klass’s firearms licence, conducted a hearing on the merits and is required to produce the correct and preferable decision.[4] The Tribunal undertakes the same tasks as was undertaken by QPS where it decided to suspend the firearms licence. The relevant matters to be considered included the basis on which the firearms licence was suspended, relevant provisions of the Act in conjunction with s.10B and other matters and information which was at QPS’s disposal and any further evidence from the hearing.
[4]Sections 17 - 20 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act)
Mr Klass has provided the following explanation for the attempted importation of the sound suppressor:
The item in question was purchased on EBAY Australia. Item was located with a seller in Sydney NSW. I thought I was buying an oversize muzzle brake to reduce recoil. I then received a letter from Border Force stating the item had been seized. I contacted the seller to ask why Border Force sent me a seizure notice. Seller did not reply. I did not know EBAY would sell illegal items.
At the Tribunal hearing Mr Klass gave evidence but called no other witnesses. During the hearing Mr Klass was requested to produce documents including eBay confirmation of the order or receipts for the purchase of this item including any bank statements. Mr Klass produced:
(a)copies of his Westpac bank statements from 19 April 2020 to 14 October 2020. This consisted of 16 pages of documents but at page 2 a transaction occurred on 20 July 2020 with the payment of $40.19 to “Suzhimin EBAY”;
(b)an eBay order confirmation dated 19 July 2020 for:
“the 1 Set Spiral 16-28 Aluminium Single Core Fuel Filter for NAPA 403W …”
This order confirmation contained a photo of what presumably had been purchased which Mr Klass described as an oversize muzzle break which dispersed gas from the rifle barrel on discharge to prevent recoil. He says he knew the measurements of “16 -28” were appropriate size for an oversize muzzle break for his rifle.
(c)The eBay order confirmation stated a delivery date of between 28 July 2020 and 14 August 2020 with freight tracking details also provided.
Mr Klass when asked why an oversized muzzle being sold on eBay would be described as a Fuel Filter, said it was common knowledge for muzzle brakes to be sold under that description of fuel filters but otherwise could not explain the discrepancy in the description of those items. He said he thought he was purchasing from a seller in Sydney and was not aware the item was being sent to him from China.
The information provided by the Australia Border Force to QPS was that the package containing the sound suppressor arrived on a Cathay Pacific air cargo flight at Mascot, Sydney on 10 July 2020. The sound suppressor was located in the package and seized by Border Force on 19 July 2020. The package was consigned by “5U Logistics Co. Limited, in Shenzhen, China to Mr Klass at his home address in Queensland. The package declared the contents as being “Automotive Elding Purifier Filters” with a declared value of US$13.30.
Mr Klass says that on 1 December 2020 he was served with the suspension notice issued by QPS. That notice after informing him that his firearms licence was suspended, gave Mr Klass the opportunity to make written submissions detailing why he should continue to hold a firearms licence. For whatever reason Mr Klass made no written submissions to QPS.
There is no evidence before the Tribunal indicating that before or after 1 December 2020 Mr Klass took any steps to inform either QPS or the Australian Border Force that he was not the owner or the correct consignee of the sound suppressor freighted from China in the package addressed to him. There is no evidence that he advised Australian Border Force or the QPS the sound suppressor imported from China was not his property or whether there was some mistake when a sound suppressor was sent rather than an oversized muzzle brake which, he says, had been ordered through eBay. There is no evidence before the Tribunal that Mr Klass took any steps whatsoever to disown the sound suppressor located by Australian Border Force on 19 July 2020.
Following the conclusion of the evidence at the hearing, the Tribunal is left with a number of discrepancies in Mr Klass’s evidence which are unexplained. The Tribunal made directions at the end of the hearing for both parties to make further written submissions and a timetable was established for the delivery of those further submissions. QPS took the opportunity to make further written submissions which were filed in the Tribunal. Mr Klass did not take up that opportunity and no submissions have been received from him since the conclusion of the hearing.
The discrepancies in Mr Klass’s evidence which remain unexplained include the following:
(a)Ordering an oversized muzzle brake for a rifle on eBay which was described as an air filter;
(b)How is it that Mr Klass wanted an oversize muzzle break but ordered a Set Spiral 16-28 Aluminium Single Core Fuel Filter but a parcel arrives from China addressed to him which declares it contains automotive elding purifier filters and contains a sound suppressor?
(c)How is it that Mr Klass wanted an oversize muzzle break but is sent a soumd suppressor?
(d)How an order on eBay was placed on 19 July 2020 when the Australian Border Force say the parcel for him with the sound suppressor arrived in Sydney on 10 July 2020?
(e)The eBay order dated 19 July, 2020, advised that delivery was between 28 July, 2020, and 14 August, 2020, when his goods had already arrived in Sydney from China on 10 July, 2020, in a parcel addressed to him at his Queensland address.
(f)How is it that the eBay confirmation order form was dated 19 July 2020 being the same day as the Australian Border Force located at Mascot, Sydney the parcel already delivered from China addressed to him and containing the sound suppressor?
(g)Why did his Westpac bank statements describe the entity paid for the muzzle break/air purifier as “Suzhimin EBAY” yet the consignor of the goods from China had a different name? and
(h)The amount Mr Klass says he paid on 20 July, 2020, for the eBay order appears to be signficiently in excess of the declared value of “US$13.30” on the parcel from China containing the sound suppressor, taking into account international exchange rates.
Mr Klass did not provide any evidence or explanation of other significant issues. While he says he tried to contact the Sydney seller of the oversized muzzle brake, he received no reply. He nevertheless made no enquiries of the eBay organisations to establish contact with his Sydney seller.
In the circumstances, the Tribunal can have no confidence in the explanation and evidence provided by Mr Klass.as to the circumstances of his purchase of an alleged muzzle break The Tribunal rejects his explanation and evidence relating to the purchase through eBay on 19 July,2020. The Tribunal finds that by whatever means Mr Klass used, it accepts that on 10 July 2020 a parcel addressed to him at his Queensland home address arrived from Shenzhen, China at Mascot, Sydney. The Tribunal also accepts that the parcel addressed to Mr Klass contained a sound suppressor which was located in the parcel by the Australian Border Force on 19 July 2020. The Tribunal accepts the statements in QPS’s notice of suspension to Mr Klass that he was attempting to import a prohibited item, namely the sound suppressor, to his home address in Queensland.
The Tribunal for the purposes of review has been provided with additional information concerning Mr Klass. That includes a record of traffic offences over an extended period from 27 April 2002 to 15 September 2019 and containing a range of offences extending over approximately three pages. He also had other matters dealt with in various Magistrates Courts from December 1994 to April 2007 and including a Peace and Good Behaviour Act 1982 matter as recently as 11 April 2016. Those matters are taken into account by the Tribunal.

Should Mr Klass’s firearms licence be suspended?

The Weapons Act 1990 provides relevant matters, in addition to the factual context for the provisions of firearms in this state.
The objects of that legislation are that the possession of weapons and their use are subordinate to the need to ensure public and individual safety which is to be improved by imposing strict controls on the possession of weapons.
In a determination involving a suspension of a licence consideration involves features set out in s.10B and s.28(1)(b) of the Act as to whether a person is fit and proper to hold a firearms licence and public interest considerations. This criteria has been discussed in Australian Broadcasting Tribunal v Bond[5] 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 context, 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.
[5][1990] 94 ALR 11 per Toohey and Gaudron JJ at 56.
It has been submitted on behalf of the QPS that the Tribunal must be satisfied “that there is virtually no risk to public safety if Mr Klass were given access to a firearm (see Ward v NSW Commissioner of Police[6]). They further submit that it is necessary that the interests of the whole community are matters for consideration (Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors[7]).
[6][2000] NSWADT.
[7][1995] 131 ALR 657.
The attempt to obtain a sound suppressor by Mr Klass is an extremely serious matter. Mr Klass was the holder of a recreational shooter’s firearm licence which falls exceedingly short of any authorisation or an explanation to attempt to import a sound suppressor for a rifle. Associated factors relating to his explanation of the circumstances leading to the purchase of the sound suppressor, which explanation was not accepted by the Tribunal, does not support the notion that he has in any way acted responsibly and in accordance with the objects and the purposes of the Act. There is a suggestion of illicit conduct given the attempted importation when no relevant firearms licence was held by Mr Klass. The public interest expects that persons granted a firearms licence will act and conduct themselves in accordance with the conditions of the relevant licence granted. This has not occurred in Mr Klass’s circumstances. Public safety is extremely relevant to the legislative scheme for the owning of firearms in Queensland. Further, the attempted importation of a sound suppressor for a rifle has not been accompanied by any adequate explanation by Mr Klass as to why he would undertake that activity in attempting to import, or to purchase, a prohibited item for his firearm. Taking his conduct into account including his previous traffic history and his various appearances before various Magistrates Courts, the Tribunal is satisfied that Mr Klass has engaged in improper conduct. His past conduct also calls into question what his future conduct maybe if he remains the holder of a firearms licence. The Tribunal finds that he is no longer a fit and proper person to hold a firearms licence and also finds that it is in the public interest that his firearms licence be suspended.
In the circumstances, the correct and preferable decision is to confirm the decision of QPS to suspend his firearms licence. Mr Klass’s Application filed on 27 January, 2021, to review the decision of the Queensland Police Services – Weapons Licensing dated 1 December 2020 is dismissed.

Member Carrigan

QCAT