Pollock v Queensland Police Service Weapons Licensing Branch

[2010] QCAT 77

CITATION:Pollock v Queensland Police Service Weapons Licensing Branch [2010] QCAT 77

PARTIES:   Damien Charles Russell Pollock

v

Queensland Police Service Weapons Licensing Branch

APPLICATION NUMBER:            GAR035-10  

MATTER TYPE:   General administrative review matters

HEARING DATE:   8 March 2010

HEARD AT:   Brisbane

DECISION OF:   Richard Oliver, Senior Member

DELIVERED ON:   16 March 2010

DELIVERED AT:   Brisbane

ORDERS MADE:   Application Dismissed

CATCHWORDS:  Review application under the Weapons Act 1990; whether fit and proper person to hold a weapons licence; section 10B considered; whether in public interest; effect of the creditability of applicant on whether he is a fit and proper person.

APPEARANCES and REPRESENTATION:

Mr Pollock - Applicant

Senior Sergeant Jones - Respondent

Introduction

1.Mr Pollock was the holder of Weapon’s Licence Number 10075499 which licence issued to him on 18 March 2005.  That license authorises Mr Pollock to have possession and use of registered category A and B weapons for the purposes of recreational shooting on rural land and for the purposes of sports or target shooting at an approved range.

2.On 28 January 2010 the respondent’s Authorised Officer, Acting Inspector Russell David Jones made a decision, under and pursuant to the Weapons Act 1990 (“the Act”) that Mr Pollock was not a fit and proper person to continue to hold a weapons license as provided by section 29 (1)(c) and (d) of the Act and revoked his license.

3.On 28 January 2010 Mr Pollock filed, in the Queensland Civil and Administrative Tribunal (“the Tribunal”), an application to review the decision of the respondent pursuant to chapter 2 division 3 of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”).

4.Section 142 of the Act makes provision for a person aggrieved by a decision made to seek a review of that decision in the Tribunal. Section 142 is in the following terms:

“142   Right to apply for review of decisions

(1)      This section applies to the following decisions:

(a)   A decision refusing an application for a license, permit,     approval or other authority under this act;

(b)   A decision refusing to accept a nomination of the   person by an applicant for a shooting club permit;

(c)   A decision refusing to accept a representative notice under section 92;

(d)     A decision imposing or amending the condition applying for a license, permit, approval or other authority under this act;

(e)   A decision revoking or suspending a license, permit, approval or other authority under this act.

(2)A person aggrieved by the decision may apply, as provided under the QCAT Act, to QCAT for a review of the decision.”

5.Then, pursuant to the QCAT Act, that review jurisdiction is exercised in accordance with section 18:

“18    When review jurisdiction exercised

(1)   The Tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the Tribunal to exercise its review jurisdiction for a reviewable decision.

(2) A person may apply to the Tribunal to exercise its review jurisdiction for a reviewable decision, and the Tribunal may deal with the application, even if the decision is also the subject of a complaint, preliminary enquiry or investigation under the Ombudsman Act 2001.”

7.In exercising the review jurisdiction the Tribunal must decide the review in accordance with the provisions of the QCAT Act and the enabling Act which, here, is the Weapons Act.

8.Section 20 of the QCAT Act provides that the review will involve a fresh hearing on the merits of the case:

“20    Review involves fresh hearing

(1)   The purpose of the review of a reviewable decision is to produce the correct and preferable decisions.

(2)   The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.”

The Respondents Decision

9.The Respondent has filed an affidavit by Acting Inspector Russel David Jones of the Weapons Licensing Branch which sets out, in particular detail, the provisions of the Act relied upon, and the history associated with his decision to revoke the license. Essentially the respondent, through its authorised officer, came to the conclusion on the facts known to him, that the applicant was not a fit and proper person to hold a weapons license.

10.The applicant was born on 28 March 1974.

11.With the introduction of weapons licensing, the applicant was issued with a weapons license on 18 March 2005.  Subsequently, two events occurred which brought Mr Pollock’s standing as a fit and proper person to the notice of the police. 

12.The first event was a change of address for a weapons storage facility which was submitted by the applicant on 9 July 2007.  That document[1] listed a change of storage from 6 York Street East Ipswich to 834 Oxley Road Corinda.  That form did not notify the respondent of any change of the applicant’s residential address.

[1] Exhibit RDJ2

13.Section 24 of the Act imposes an obligation on a licensee to notify the respondent, within 14 days of any change of address.

14.Acting Inspector Jones notes[2] that the Police officer issuing the field property receipt for Mr Pollock’s weapons recorded Mr Pollock’s address at 834 Oxley Road Corinda. Therefore Acting Inspector Jones came to the conclusion that Mr Pollock had not notified the respondent of a change of address as required by section 24 of the Act.

[2] paragraph 22

15.The second event which occurred was that on 13 March 2009, Mr Pollock was convicted of dangerous driving of a vehicle in breach of section 328 (1) of the Criminal Code. As a consequence of that conviction, the applicant was sentenced to 9 months imprisonment to be served by way of intensive correction order and further, he was disqualified from holding or obtaining a driver’s license for a period of 18 months.

16.Mr Pollock did not notify the police of a change of circumstances, in that he was convicted of an offence which resulted in a term of imprisonment.

17.By reason of these two events, Acting Inspector Jones then considered whether Mr Pollock was a fit and proper person to hold a weapons licence, and whether it was in the public interest that he continue to do so.

18.Section 10B of the Act provides:

“10B   Fit and proper person – licensee’s

(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 license, an authorised officer must consider, among other things–

(a)the mental physical fitness of the person: and

(b)whether a domestic violence order has been made against the person:

(c)whether the person has stated anything in or in connection with the application for a license, or an application for the newel of a license, the person knows is false or excluding material particularly: and

(ca)whether there is any criminal intelligence or other information to which the authorised officer has access and indicates:

(i)the person is at 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.”

Public Interest

19.In determining that the applicant is not a fit and proper person the respondent had regard to section 10B(1)(d), that is, the public interest.

20.The principles and logic of the Weapons Act is to ensure public and individual safety with strict controls on the possession of weapons and safe and secure storage of weapons. These objects are achieved by the licensing system implemented under the Act to prohibit certain firearms, and ensuring that any license holder has a genuine reason for possessing a firearm[3]. 

[3] Sections 3 and 4 of the Act

21.In considering this issue of control, the respondent submits that this includes advising police of any change of address or becoming the subject of court order or a change of circumstances, which includes a term of imprisonment. 

22.When considering public interest and the discretion involved in making a decision, here to revoke the licence, the discretion should be exercised in the way that promotes the principles and objects of the act. 

23.The respondent relied on a number of decisions which includes Director of Public Prosecutions v Smith[4]; Comalco Aluminium (LA) Ltd v O’Connor and others[5].  In particular, in Smith it was held that the public interest embraced matters, among others, of standards of human conduct and of the function of government and government’s accepted and acknowledged standards to be for the good order of society against the well being of its members.  The interest is therefore the interest of the public and is distinct from the interests of the individual or individuals.  This is undoubtedly correct and for the purposes of this decision it is adopted. 

[4] (1991) 1 V.R.51 at 63

[5] (1995) 13100657

24.Even so, some conduct on the part of the applicant must be identified to show that it would not be in the public’s interest for Mr Pollock to retain his weapons license.

25.The conduct, relied upon here by the respondent is that firstly, his failure to notify change of address, (if in fact there has been a change of address) and secondly, the dangerous driving conviction resulting in a term of imprisonment.

Dangerous Driving Conviction

26.In the notice of revocation the following reason is provided:

“The authorised officer is satisfied that you have contravened that condition of your license. You have failed to advise the Authorised Officer of the happening of an event mentioned in section 24 (2)(g) of the Weapons Act 1990 specifically under section 14 (a) of the Weapons Regulation 1996 within this prescribed period, failure to advise of an imprisonment order (dangerous operation of vehicle).”

27.Regulation 14 is in the following terms:

“Additional changes in circumstances that must be advised by licensee

For section 24(2)(g) of the act, the changes in circumstances are:

(a)   a court order is made, or an official act is done, in Queensland or elsewhere that adversely affects the licensee’s or the licensee’s representative’s ability to own, possess, use, carry or deal in weapons in Queensland or elsewhere: or

(b)   the licensee or the licensee’s representative –

(i)is refused, outside Queensland, an official authorisation to own, possess, use, carry or deal in weapons: or

(ii)become subject to an order under the Peace and Good Behaviour Act 1982, or a similar act of another state: or

(iii)is discharged from a psychiatric hospital, training centre, security patients hospital or other similar institution established under the Mental Health Act 1974, or similar institution in another state.”

28.Clearly Regulation 14(b) has no application to the circumstances of this application. But a consideration of the subsection does assist in determining the type of court order that would be necessary to bring to the attention of the respondent.

29.It is difficult to reconcile the grounds alleged in the Revocation Notice, that is failure to advise of an imprisonment order, with Regulation 14 (a). There is no reference in regulation 14 (a) of any obligation to advise of an imprisonment order. In fact, both regulations 14 (a) and 14 (b) specifically relate to any order relevant to or which adversely affects the ability to “own, possess, use, carry or deal in weapons”

30.This view, is to some extent, reinforced by the examples are given at the end of the Regulation 14. Each of those examples relate specifically to disqualification, suspension revocation or forfeiture of weapons.  Although examples are not exhaustive[6] they do give a guide as to what is contemplated by the Regulation. It does seem to me that although there’s an obligation under section 24 (2) (g) to advise of “another event prescribed under a regulation” this event, that is the imposition of a term of imprisonment, is unrelated to the applicants weapons licence, and is not one, which in my view, is contemplated by regulation 14 (a).

[6] (1990) 170CLR 321

31.I have therefore come to the conclusion that the applicant’s failure to advise of circumstance of his imprisonment (to be served by way of a intensive correction order) is not a ground upon which a Revocation Notice should issue pursuant to Regulation 14(a).

Change of Address

32.The applicant gave evidence in the Tribunal during the course of the hearing that his current residential address is both at 6 York St, East Ipswich and at 834 Oxley Rd. Oxley. He was seriously suggesting to the Tribunal that he lives in two places at the one time.

33.The applicant also has a mail address which is a post office box at Graceville East. I have noted that in all of the documents filed in the Tribunal by the applicant, there is not one reference to a residential address and I infer from his conduct generally that he has deliberately avoided nominating an address in his various applications.

34.The applicant was questioned by Senior Sergeant Jones, the decision maker, about his address. He could not recall how frequently he visited York St nor could he remember what possessions he had at York St.

35.He was asked about his electoral address. The applicant gave evidence that he had changed his electoral address so that it was private and undisclosed. When asked what that address was, he declined to answer. He was asked when he changed his electoral address to which he replied “January”. When asked whether the address that is now recorded with the Electoral Office was different from York St, his response was he could not remember.

36.The applicant was residing at Oxley Rd when the Revocation Notice was served, this much is clear. The respondent has produced an email from a police officer at Ipswich who visited the York St address and spoke to a Mr Ken Clift. The email records

“Ken stated that Damien Pollock no longer lives at that address and that    he uses it only as a postal address as he moves frequently. Ken claim    that Pollock has not lived at the address since early last year and the fire   arms have not been at his residence 6 York St for over a year.  Ken     believes that Pollock is now residing at Oxley Rd, Corinda[7].”

[7] Exhibit 5

37.The applicant conceded that Mr Clift does indeed reside at York St.

38.The applicant also produced a boat licence which has his address at York St.

39.Finally, when questioned about his current residential address the applicant prevaricated, was evasive and repeatedly sought recourse to memory failure when clearly the answers were of a type that it would be unlikely that he would forget. An example is the electoral address and his belongings.

40.I do not accept the applicant’s evidence that he currently resides at York St. because for the reasons stated I find that his evidence is simply not credible. This opinion as to the applicant’s creditability is reinforced by the evidence of the conversation the police officer had with Mr Clift. Although one is always careful when considering hearsay evidence, it is entirely consistent with the known facts and the applicant’s lack of credibility.

41.Quite obviously Mr Pollock is not prepared to make any concession that his current address is at Oxley Rd because he perceives that this will be fatal to his application. Admittedly, it may have some adverse impact but of much greater impact is his complete lack of candour and frankness with the Tribunal particularly when the evidence he gave was on oath.

42.This conduct does, in my view, raise serious doubts as to his good character and consequently his status as a fit and proper person to hold a weapons licence.

43.If this is not a sufficient reason, I also consider that the applicant’s conviction and sentence to imprisonment, albeit to be served under an intensive correctional order, does also exhibit a disregard of the values of society, particularly in the operation of a motor vehicle. Although this conviction is under appeal, I can only proceed on the facts that are currently before the Tribunal. I therefore accept the submissions of the respondent that this also renders the applicant not a fit and proper person when having regard to the public interest generally[8].

[8]   Frey v Woolcock, MC Warick 29.9.1009

Conclusion

44.I have come to the conclusion that the applicant so lacks integrity, honesty and frankness as to his current residential address that it would not be in the public interest for him to continue to hold a weapons licence. As the holding of a weapons licence is subordinate to the need to ensure public and individual safety, and this safety is improved with the implementation of strict controls on the possession of weapons to, prevent misuse, a holder of a weapons licence must comply strictly with the provisions of the Act. Furthermore any licensee must be open and frank with the licensing authorities as to this compliance so that the Act can be administered in accordance with its objects.

45.Therefore, and as a consequence of these findings, the Tribunal directs that the application be dismissed.

    Pioneer v QPS MC MAG 49359/03(a) 28.8.2003