Pollock v Queensland Police service Weapons Licensing Branch
[2011] QCATA 189
•21 July 2011
CITATION: Pollock v Queensland Police Service Weapons Licensing Branch [2011] QCATA 189
PARTIES: Damien Charles Russell POLLOCK
(Appellant)v Queensland Police Service Weapons Licensing Branch
(Respondent)
APPLICATION NUMBER: APL015-10, APL048-10
MATTER TYPE: Appeal
HEARING DATE: 31 March 2011; final submissions received 3 May 2011
HEARD AT: Brisbane
DECISION OF: Judge Fleur Kingham, Deputy President
Mr Peter Richards, Member
DELIVERED ON: 21 July 2011
DELIVERED AT: Brisbane
ORDERS MADE:
1. The application for leave to appeal in APL015-10 is refused.
2. Leave to appeal in APL048-10 is granted.
3. The appeal in APL048-10 is dismissed.
CATCHWORDS: APPEAL – Administrative Review – where licence under the Weapons Act revoked – where licensee convicted of dangerous driving of a motor vehicle – whether licensee a fit and proper person to hold a licence – whether s10B(2)(a)(ii) of the Weapons Act precluded licensee from holding a licence –
Acts Interpretation Act 1954 s14A(1)
Criminal Code (Queensland) s328A
Penalties and Sentences Act 1993 s113
Queensland Civil and Administrative Tribunal Act 2009 ss 20, 28, 66, 90, 142, 144, 229, 230
Weapons Act 1990 ss10B(1);(2)(a)(ii), 24, 142
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 applied
Council of the City of Wollongong v Cowan (1955) 93 CLR 435 applied
APPEARANCES and REPRESENTATION (if any):
Mr Damien Pollock represented himself in the proceedings.
Mr Trevor Hazenberg represented the Weapons Licensing Branch of the Queensland Police Service (QPS).
REASONS FOR DECISION
Background
[1] Mr Pollock’s licence to possess weapons under the Weapons Act 1990 (Weapons Act) was revoked on 29 January 2010. The Weapons Licensing Branch determined that Mr Pollock was not a fit and proper person[1] to hold the licence. Mr Pollock applied to QCAT to review the decision.
[1] Weapons Act 1990 s 10B (1).
[2] On review, the Tribunal determined Mr Pollock was not a fit and proper person to hold the licence for two reasons. Firstly, the Tribunal considered the answers Mr Pollock gave during the hearing about his place of residence indicated a lack of candour, which cast doubt on his good character.[2] Secondly, his conviction of the offence of dangerous operation of a motor vehicle rendered him not a fit and proper person having regard to the public interest generally.[3]
[2]A licensee must notify a change of address. The Weapons Licensing Branch asserted that he had changed his address without notifying them: Weapons Act 1990 s 24.
[3] Weapons Act 1990 s 10B (1) (d).
[3] In seeking leave to appeal, Mr Pollock challenged the learned Member’s finding that he was not a fit and proper person. He argued that he did not have to nominate only one residence and that the police were well aware of his whereabouts. He denied there had been any change in his circumstances that he had failed to report. He also argued his conviction did not mean he was not a fit and proper person.
[4] On appeal, the Weapons Licensing Branch raised a legal argument that, if successful, must determine the outcome of the appeal. It is this: properly interpreted, s 10B (2) (a) (ii) of the Weapons Act precludes Mr Pollock from holding a weapons license, because of his conviction. The Weapons Licensing Branch did not make this argument at the review hearing, accordingly, the learned Member did not address it in his reasons.
[5] There is a public benefit in appellate consideration of the argument. It involves a question of interpretation that has implications for other licence holders or applicants. Quite apart from any issue raised by Mr Pollock, leave to appeal should be granted so that this question may be determined.[4]
[4] Council of the City of Wollongong v Cowan (1955) 93 CLR 435.
[6] During the hearing and both before and after it, Mr Pollock made numerous and lengthy submissions about a number of peripheral issues that do not bear directly upon his appeal. They related to the way in which he or his wife were treated by the QPS; the return of weapons seized by the QPS; procedural irregularities, inaccuracies or inconsistencies in the QPS material and the processes of this Tribunal for reviews and appeals. None of these matters relate to the merits of his appeal. The Appeal Tribunal will briefly address them after it has explored the interpretation of s 10B (2) (a) (ii).
[7] As well as applying to appeal the review decision (APL048-10), Mr Pollock appealed the learned Member’s decision to refuse an application to stay the Weapons Licensing Branch’s decision pending review (APL015-10). The decision to refuse the request for a stay was not a final decision and could only proceed with leave.[5] Mr Pollock did not raise any grounds that would support the grant of leave.[6] In any case, events have rather overtaken that appeal and there is no longer any utility in it. The application for leave to appeal the decision on the stay application will be refused.
[5] Queensland Civil and Administrative Tribunal Act 2009 s142(3)(a)(ii)
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41; Cachia v Grech [2009] NSWCA 232 at 2; Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
Can Mr Pollock hold a weapons licence given his conviction?
[8] The scheme of the relevant section of the Weapons Act (s 10B) focuses attention on a person’s fitness to hold a licence. In deciding to issue, renew, suspend or, as in this case, revoke, a weapons licence, the decision maker must consider certain factors that bear upon the licensee or applicant’s fitness to hold a licence.
[9] They are set out is s 10B(1):
‘(1)In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things :
(a)the mental and physical fitness of the person; and
(b)whether a domestic violence order has been made against the person; and
(c)whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and
(ca)whether there is any criminal intelligence or other information to which the authorised officer has access that indicates - -
(i)the person is a risk to public safety; or
(ii)that authorising the person to possess a weapon would be contrary to the public interest; and
(d) the public interest.’ (emphasis added)
[10] Regardless of the conclusion reached after that consideration, a person is not a fit and proper person in certain circumstances: relevantly, for this case, if they have been convicted of a certain type of offence within the defined period.
[11] That is provided by s 10B(2)(a)(ii) which states:
‘(2)However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period…
(a)the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences:
(ii)an offence involving the use or threatened use of violence;…
(emphasis added)
[12] The Weapons Licensing Branch argued that Mr Pollock‘s conviction is for an offence involving the use or threatened use of violence. The conviction occurred 10 months before the Weapons Licensing Branch decided to revoke the licence, well within the relevant period (5 years from notice of the decision).[7]
[7] Weapons Act 1990 s 10B (5) (b).
[13] The mandatory language used in s 10B(2) supports the submission that, if Mr Pollock has been convicted of such an offence, he is not a fit and proper person and may not hold a weapons licence. During the hearing, Mr Pollock seemed to concede this point. However, he argued, his conviction was not for an offence involving the use or threatened use of violence. The critical question, then, is whether Mr Pollock’s conviction was for such an offence.
[14] On 13 March 2009, after trial, a jury convicted Mr Pollock of an offence of dangerous operation of a motor vehicle. He was sentenced to a 9 month Intensive Correction Order, which is a term of imprisonment served in the community, conditional upon compliance with specified conditions.[8] The learned sentencing judge ordered Mr Pollock to pay compensation of $2,806.67. He was also disqualified from holding or obtaining a driver’s licence for 18 months.
[8]Penalties and Sentences Act 1993 s 113.
[15] The phrase an offence involving the use or threatened use of violence is not defined in the Act. In the context of s 10B(2), there are two ways in which the phrase might be interpreted.
[16] One interpretation is that the use or threatened use of violence must be an element of the offence, in that it is something that must be proved in order to secure a conviction for that offence. This argument seemed to lie at the heart of Mr Pollock’s submission.
[17] If that interpretation is correct, the offence of dangerous use of a motor vehicle is not an offence involving the use or threatened use of violence. The elements of the offence are that a person operates a vehicle dangerously.[9] A person operates a vehicle dangerously if the person operates a vehicle at a speed or in a way that is dangerous to the public, having regard to all the circumstances.[10] The operation of a vehicle may be dangerous to the public without there necessarily being the use or threatened use of violence.
[9] Criminal Code (Queensland) s 328A (1).
[10] Criminal Code (Queensland) s 328A (6).
[18] The ordinary meaning of violence is uncontrolled, strong or rough force.[11] A driver may drive a vehicle at an excessive speed, which, in the circumstances, might increase the risk that the driver would lose control of the vehicle and injure somebody. If the risk were realised there would likely be the use of violence. If the risk were not realised, the driving itself may nevertheless be dangerous to the public.
[11]Law the unlawful exercise of physical force or intimidation by the exhibition of such force: The Oxford English Dictionary. 2nd ed. 1989. OED Online. Oxford University Press. 1 July 2011 <
[19] The other interpretation of the phrase an offence involving the use or threatened use of violence is that it is the circumstances themselves, meaning the facts of the case proved against the offender, not the elements of the offence, which will determine whether it qualifies under s 10B(2)(a)(ii).
[20] If that interpretation is accepted, Mr Pollock’s appeal must fail because he will not be a fit and proper person to hold a licence.
[21] The case proved against Mr Pollock is summarised by the learned sentencing judge in his remarks:
“Twelve independent responsible adult members of the community, after appropriate consideration, were unanimous in their satisfaction beyond reasonable doubt that your out of court statement to the police was untruthful. They were satisfied beyond reasonable doubt that you deliberately rammed your vehicle into the rear of the Complainant’s vehicle in Musgrave Road, the dangerous driving as particularised by the Crown.
When one hears of a case in which there is a deliberate ramming into the rear of the vehicle in front, using the vehicle say as a weapon, the question is usually not will the person go to jail, but for how long?”[12]
[12]Transcript of Proceedings, R v Pollock, (District Court of Queensland 1662/2008, Judge Howell, 13 March 2009) 2.
[22] He was found to have deliberately rammed his vehicle into the rear of another. There was a direct use of violence to the property of the complainant. Indirectly, there was also the use of violence to the person of the complainant as he was in the car that was rammed and would have experienced the effects of the car being rammed. Arguably, Mr Pollock’s actions also amounted to a threat to use violence against the complainant. The conduct was deliberate and intimidating.
[23] The question is, then, which interpretation should be favoured?
[24] The Appeal Tribunal considers the proper interpretation is that the circumstances of the offence qualify it as one that renders a person not fit and proper to hold a weapons licence.
[25] Legislation must be interpreted according to its ordinary meaning.[13] An interpretation that best achieves the purpose of the Act is to be preferred to any other interpretation.[14]
[13]Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 161-2.
[14] Acts Interpretation Act 1954 s 14A (1).
[26] The ordinary meaning of the phrase an offence involving the use or threatened use of violence does not connote that this must be an element of the offence. If Parliament had intended to require it to be an element of the offence it could easily have provided for that.
[27] There is a distinction between the phrase offence involving and the phrase offence of. An offence involving (violence) implies the circumstances of the offence must include violence. An offence of (violence) implies violence must characterise the offence itself.
[28] The interpretation that the circumstances, not the elements, of the offence must involve violence is consistent, also, with the principles and object of the Weapons Act.
“(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.”
(emphasis added)
[29] The overarching object is public and individual safety. A person who uses or threatens to use violence may present a risk to public safety if they possess a weapon. It is consistent with the principles and object of the Act that a person convicted of an offence where they used or threatened to use violence, is precluded from possessing weapons for the relevant period.
[30] The conclusion reached by the Appeal Tribunal disposes of the matter. Applying s 10B (2) (a) (ii) to the circumstances of Mr Pollock’s case, he is not a fit and proper person to hold a weapons licence and his appeal must fail.
[31] There are other issues raised by Mr Pollock in the course of the appeal that will now be addressed.
Return of the weapons
[32] Mr Pollock has requested the Tribunal order the QPS to return the weapons seized from his wife’s home. The Tribunal does not have jurisdiction to give Mr Pollock the relief he seeks.
[34] The Tribunal’s jurisdiction (in so far as it relates to this matter) is to review specified decisions made under the Weapons Act.[15] None of those decisions relate to the seizure of weapons.
[15] Weapons Act 1990 s 142.
[35] The Weapons Act does not confer the power for police officers to seize weapons. That power is granted by sections 22 and 24 of the Police Powers and Responsibilities Act 2000. The Tribunal does not have any jurisdiction to review the use of those powers by the police. The only matter before the Tribunal that it has jurisdiction to deal with is the decision to revoke the licence.
[36] That said, the ownership of the weapons has been a contentious issue throughout the proceedings and the information provided by the QPS has been contradictory and confusing at times. Most recently, in response to a direction from the Appeal Tribunal, the QPS representative has helpfully provided a full account of the history of possession of the particular weapons that Mr Pollock is concerned about. For the record that account appears as appendix 1 to these reasons.
[37] It appears the weapons remain in the possession of the Queensland Police Service, located at the Mt Ommaney Police Station. The Weapons Licensing Branch has advised they no longer require them and that they may be returned to a person nominated by Mr Pollock, provided the nominee is a licensed person. It is a matter for Mr Pollock, then, to make that nomination or to seek relief elsewhere than in this Tribunal.
Other issues
[38] Mr Pollock has made lengthy submissions about a range of other procedural issues in the course of these proceedings. Because of the form of Mr Pollock’s submissions, it is difficult to discern precisely what orders he is seeking. The following appears to be the essence of his most recent submissions:
a) He reserved the right to make further submissions.
b) To prevent retribution by the QPS, he would like a non-publication order.
c) He requested the Appeal Tribunal transfer the appeal to the Court of Appeal.
d) He questioned the ability of the QPS to administer the Weapons Act and asked for a full inquiry into this.
e) He accused the QPS of fabricating evidence and filing inaccurate and inconsistent material.
f) He requested the Tribunal to obtain video footage taken at the times recorded on service documents to validate the statements made in affidavits of service filed by the QPS.
g) He accused the Appeal Tribunal of threatening him by directing that, regardless of whether he filed further submissions, the Appeal Tribunal would proceed to determine the matter.
[39] Each of those matters will be addressed briefly.
[40] With respect to a), it is now some time since Mr Pollock indicated he might want to file further submissions. He has not done so. It is reasonable to assume there is nothing further he wishes to add.
[41] With respect to b), the QPS, as a party to the proceeding, has access to the evidence led and the documents filed in the appeal and the original proceeding. A non-publication order would not affect that. There is a strong indication in the Queensland Civil and Administrative Tribunal Act 2009 that proceedings will be public.[16] The Appeal Tribunal is not persuaded there is any justification for or utility in a non-publication order.[17]
[16] Queensland Civil and Administrative Tribunal Act 2009 ss 90, 229, 230.
[17] Queensland Civil and Administrative Tribunal Act 2009 s 66.
[42] With respect to c), it is possible to transfer an appeal to the Court of Appeal, but the Appeal Tribunal does not have the power to do so. Only the President can transfer an appeal. The President must consider that the Court of Appeal could more effectively or conveniently deal with the appeal and that it would be appropriate for it to be dealt with by that Court. The President must have leave of the Court of Appeal to transfer the appeal.[18]
[18] Queensland Civil and Administrative Tribunal Act 2009 s 144.
[43] With respect to d), as Mr Pollock was informed at the hearing, this Tribunal cannot order an inquiry into the ability of the QPS to administer the Weapons Act.
[44] With respect to e) and f), it is fair to say that some of the material filed by the QPS in this matter has been unsatisfactory. Some documents have been unsigned. Others contain irregularities about the dates, purporting to have been signed after the date they had been filed. The QPS has also been tardy with some of its material, failing to observe procedural directions. This has raised Mr Pollock’s suspicions that he is the victim of a conspiracy at the hands of the Police.
[45] However, his response to statements during the hearing and directions made by the Appeal Tribunal indicate that Mr Pollock sometimes misinterprets what is said and done, perhaps because of his sense that he has been and will be unfairly dealt with.
[46] With respect to g), the direction made by the Appeal Tribunal that the matter would be determined after a certain date, regardless of whether Mr Pollock filed further submissions, reflected that Mr Pollock was able to but not required to file further submissions. This was explained to Mr Pollock at the conclusion of the hearing, yet he cited it in his submissions as an example of unfair treatment.
[47] There are other procedural complaints not directly addressed in these reasons. This Tribunal must act fairly and on the substantial merits of the case.[19] The remaining procedural matters raised by Mr Pollock are incidental issues that have no bearing on the merits of the matter before the Appeal Tribunal. The proper interpretation of s 10B (2) (a) (ii) precludes Mr Pollock from holding a weapons licence.
[19] Queensland Civil and Administrative Tribunal Act 2009 s 28(2).
Conclusion
[48] The learned Member decided the review on a different ground to the one explored on appeal. However, the conclusion he reached is correct on a proper application of s 10B (2) (a) (ii) of the Weapons Act 1990 to Mr Pollock’s case. For that reason, Mr Pollock’s appeal will be dismissed.
[49] If the Appeal Tribunal is wrong in its interpretation of s 10B (2) (a) (ii), respectfully, the preferable course is for the application to review the decision to be reheard. However, the state of the material before the learned Member on review was unsatisfactory. If it were reheard directions should be made to ensure that the Tribunal is properly informed when considering the factors specified in s 10B (1).
[50] The orders are:
a)The application for leave to appeal in APL015-10 is refused.
b)Leave to appeal in APL048-10 is granted.
c)The appeal in APL048-10 is dismissed.
APPENDIX 1
| Document | Date | Information |
| Application to renew Firearms License (Form 6) Appellant Exhibit TWHA1 | 25/9/97 | Appellant’s application to renew his firearms licence nominating both weapons in question. |
| Application to renew firearms license (Form 6) Mahon Exhibit TWHA2 | 25/9/97 | Zoe Maree Mahon also applied for renewal of firearms licence nominating both weapons in question. |
| Application to renew firearms license (Form 6) Brendan Pollock Exhibit TWHA3 | 25/9/97 | Brendan Paul Pollock also applied for renewal of the firearms licence nominating both weapons in question. |
| 25/9/97 | Decision to register firearms against license of Mahon as they could only be registered against one person. | |
| Application for replacement license and Statutory Declaration by Appellant Exhibit TWHA4 | 24/7/02 | Appellant lodged a replacement license application and notified Weapons Licensing Branch that he was the owner of the weapons and that Mahon and Brendan Pollock only used the weapons. |
| Extract for Commissioners register Exhibit TWHA5 | 22/8/02 | The two weapons were transferred to the Appellants license. |
| Receipt for surrendered Weapon (Form8) by appellant Exhibit TWHA6 | 18/02/05 | Submitted receipt for surrendered weapon indicating that weapons are now in the safekeeping of Zoe Pollock. (Appellant’s licence expired on 6 December 2004), |
| Extract for Commissioners register Exhibit TWHA7 | 18/02/05 | During processing of surrendered weapons, identified 2 permits to acquire applications that had been obtained by Zoe Pollock |
| Application for permit to acquire (VER2 09/07/03) Exhibit TWHA8 | After paying a regulated fee, an application form would be generated by the police and given to the applicant. It would is the applicants responsibility to complete the form and return it to the Weapons Licensing Branch for assessment. | |
| Extract for Commissioners register Exhibit TWHA9 | There is no record that the applications were received. | |
| Application for Firearms License by Appellant Exhibit TWHA10 | 24/02/05 | Appellant applied for a firearm licence in which he requested the two firearms be registered to his licence. |
| Extract for Commissioners register Exhibit TWHA5 | 18/03/05 | Appellant issued with a new firearms licence. Weapons register modified to show they are no longer in safekeeping of Zoe Pollock. |
| Email by Jones to OIC Mt Ommaney Station Exhibit TWHA11 | 29/01/10 20/09/10 | The Appellants firearm licence revoked. Notification received by Mt Ommaney Police Station advising firearms in question had been seized and lodged at their station. OIC at Mt Ommaney Station made aware that Zoe Pollock laws seeking to take possession of the weapons. Also advised that the weapons were no longer required by the Weapons Licensing Branch. |
| Email by Hazenberg to OIC Sherwood Exhibit TWHA12 | 13/04/11 | Emailed OIC Sherwood to advise that seized property was no longer required for any proceedings relating to the appellant. |
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