Powell v Queensland Police Service

[2010] QCAT 561

CITATION: Powell v Queensland Police Service [2010] QCAT 561

PARTIES:	Mr Timothy Ian Charles Powell
V
Queensland Police Service

APPLICATION NUMBER:   GAR239-10

MATTER TYPE: General administrative review matters

HEARING DATE:     10 September 2009

HEARD AT:  Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 9 November 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The application is dismissed.

CATCHWORDS :  Review of decision to refuse to issue a Permit to Acquire; consideration of Weapons Act sections 10B and 42; effect of stay of revocation of weapons licence; whether applicant a fit and proper person.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:
RESPONDENT:	Queensland Police Service represented Senior Sergeant Cavanagh

REASONS FOR DECISION

1. On 8 July 2010 Mr Powell lodged with the respondent an Application for a Permit to Acquire a firearm. Through its decision maker, Senior Sergeant Cavanagh, the respondent made a decision to refuse to issue to the applicant the Permit to Acquire. The principal ground for the refusal was that the applicant’s firearms licenses[1] had been revoked on 13 April 2007. 

   [1] Firearms license 1193882-07

1. The basis of the revocation was that the applicant was convicted in the Magistrates Court on 23 December 2004 of importing a prohibited import (breach bolt) contrary to section 233(1)(b) Customs Act 1901. He was fined $1,500.00.

1. The applicant appealed that decision to the District Court and the conviction was overturned.

1. The Chief Executive Officer of Customs, as the prosecuting Department appealed the District Court decision to the Court of Appeal and on 30 March 2007, the Court of Appeal allowed the appeal set aside the orders made by the District Court on 28 June 2006, and ordered that the appeal to the District Court be dismissed.  Thereby, reinstating the conviction. 

1. The respondent then made the decision, in reliance on section 10B of the Weapons Act (“the Act”) that the applicant was not a fit and proper person to hold a firearms licence because he had been convicted of an offence involving the use, carriage, discharge or possession of a weapon.

1. Then, as a consequence of that revocation, the applicant applied to the Magistrates Court to review the decision of the respondent of 13 April 2007.

1. In the application to review the decision of 13 April 2007 the applicant applied for a stay of the decision pursuant to section 146 of the Weapons Act[2] which provided:-

(1)The Court has power to grant a decision appealed against for the purpose of securing the effectiveness of the appeal;

[2] Section 146 has been repealed with the introduction of QCAT

(2)A stay –

(a)May be granted on conditions that the Court considers appropriate; and

(b)Has the effect for the period specified by the Court; and

(c)May be revoked or amended by the Court

1. On 20 February 2008, pursuant to the then section 146 of the Act the Magistrates Court ordered that the revocation of 13 April 2007 be stayed pending the outcome of the application to review the decision to revoke Mr Powell’s firearms licences.

1. The transcript of the reasons for granting the stay by the learned Magistrate are clear. The applicant applied for the stay on the grounds that even though he had been convicted of an offence, the conviction did not involve the use, carriage, discharge or possession of a weapon on basis that the importing of the breech bolt did not constitute possession for the purposes of section 10B(2) of the Act. The applicant submitted he needed possession of his weapons for the purposes of securing the effectiveness of the review. It was on that basis that the learned Magistrate granted the stay of the revocation.

10. Three important facts emerge from this history. Firstly, as at the date of applying for the permit to acquire the applicant had been convicted of importing a prohibited import, the Court of Appeal found that the bridge bolt was a firearm part and would fall within the definition of firearm in schedule 2 of the Act which in turn, is a weapon for the purposes of section 10B(2). The second important fact is that by reason of the conviction the respondent was, prima facie, entitled to revoke the applicant’s license because that conviction deemed him not to be a fit and proper person pursuant to section 10B(2). Thirdly, the stay granted to the applicant by the learned Magistrate does not set aside the revocation and does not alter the effect of section 10B(2). The effect of the stay is to permit the applicant to continue to possess his weapons pending the outcome of the review application.

11. The respondent in considering the application for the permit to acquire was entitled, and bound, to take into account all of the circumstances relevant to the applicant. In particular section 42 of the Act permits the authorised officer to “consider anything at the officer’s disposal”.

12. In a similar vain, the Tribunal’s obligation is to produce the correct and preferable decision after conducting a hearing of the review by way of a fresh hearing on the merits[3]. 

[3] Section 20 QCAT Act; Kehl v Board of Professional Engineers Queensland (2010) QCATA 058

13. Therefore when considering the matter afresh, obviously a relevant fact to be taken into account is the basis upon which the applicant’s firearms licenses have been revoked.  He has been convicted of an offence which relate to the possession of a weapon as defined.  As a consequence of that conviction he is deemed not to be a fit and proper person and irrespective that a stay has been granted that status has not changed. 

14. As has been said many times, weapon possession and use are subordinate to the need to ensure public and individual safety.[4] Those objects are achieved by implementing a licensing and registration scheme that provides strict requirements that must be satisfied for the possession of weapons[5]. Section 10 of the Act states that a license may be issued to an individual only if the person is a fit and proper person to hold the license. When applying section 42(2) the authorised officer is quite entitled to consider whether or not the applicant for the permit to acquire, whether that applicant already holds a license or not, is a fit and proper person to acquire a further weapon.

[4] Weapons Act section 3(1)(a)

[5] Weapons Act section 4

15. The applicant seems, in lengthy submissions put to the Tribunal, to proceed on the assumption that by reason of the issuing of the weapons licenses to him, he is deemed to be a fit and proper person. That is obviously correct at the time when the licences issued, but because the firearms license was revoked and then stayed, he continues to be of the view that he remains a fit and proper person. Therefore, he submits, there is no reason either for public policy reasons or any failure on his part to meet any of the strict requirements of the Act that a permit to acquire should not to issue to him. That logic, in my view, overlooks the effect of the conviction and its consequences having regard to section 10B of the Act. The stay does not, as I have said, somehow reconstitute the applicant to be a fit and proper person as though the conviction never existed.

16. This Tribunal undertakes the same task as the original decision maker and must consider all relevant circumstances. The conviction cannot be ignored even though the consequences of the conviction, that is the obligation to dispose of his weapons, has been stayed. Therefore, the Tribunal has come to the conclusion that by reason of the conviction of an offence involving the possession of a weapon, the applicant is not a fit and proper person for the purposes of an application for a permit to acquire another firearm. Mr Powell contends that the circumstances of his importing the breech bolt did not constitute possession, but that is a matter that will be decided in his review of the revocation decision and not something I need to decide in this application.

17. In the circumstances the application should be dismissed.

Concealable firearms license 30031588-00
Collectors license (weapons) 42002385