Queensland Police Service v Magarry
[2013] QCATA 147
•13 June 2013
| CITATION: | Queensland Police Service v Magarry [2013] QCATA 147 |
| PARTIES: | Queensland Police Service (Applicant) |
| V | |
| Alan Jeffrey Magarry (Respondents) |
| APPLICATION NUMBER: | APL314-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon K Cullinane AM QC, Judicial Member |
| DELIVERED ON: | 13 June 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is refused. 2. The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – ADMINISTRATIVE REVIEW – FIREARMS LICENCE – where renewal of firearms licence refused – where collector’s licence revoked – where Tribunal ordered firearms licence be renewed and collector’s licence be reinstated – where applicant seek leave to appeal that decision – whether the Tribunal erred in its decision – whether leave to appeal should be granted Weapons Act 1990 (Qld), s 3, s 10B Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
This is an application for leave to appeal against a determination of the Tribunal on review pursuant to Part 6 of the Weapons Act 1990.
Leave is required pursuant to s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal was concerned with two decisions of an authorised officer pursuant to the Weapons Act 1990 of 29 July 2011 pursuant to which:
a)The renewal of the firearms licence held by the Respondent was refused;
b)A collector’s licence held by the Respondent was revoked.
The Tribunal set aside both of these orders and ordered that the firearms licence should be renewed and the collector’s licence be reinstated.
The facts of the case are largely not in dispute.
They are set out in paragraphs 1 to 12 (inclusive) of the Tribunal’s decision.
The Respondent was a police officer from 1983 to 2010. He had had a meritorious career as a police officer having reached the rank of inspector. He had engaged in voluntary work with indigenous children and had received awards and commendations. The Tribunal found that he had had a long association with firearms and explosives. He had conducted weapons training courses. He had conducted a business which involved the creation of plaques involving the moulding of weapons which were largely acquired by members of the armed services and the police.
As a police officer he had been exposed to many traumatic events some of which are described in the reasons of the Tribunal.
In September 2009 four parcels were intercepted by customs at Brisbane airport. These were addressed to one “Roy Worcester” at the Respondent’s home address. Although labelled “marine parts” they were found to contain parts and accessories of a military assault rifle.
The Respondent was questioned by a senior police investigator in an interview which was recorded. At that time no proceedings were taken against him.
At about this time he suffered a breakdown and retired in June 2010. He was treated by a psychiatrist Dr Greaves whose evidence was of significant importance in the findings of the Tribunal.
In July 2010 he was charged with two offences under the customs legislation. In the interview with the investigator the Respondent said that whilst he could have obtained the necessary approval for these items this would take some time and he needed the items quickly to complete plaques he had agreed to provide.
He pleaded guilty in the Magistrate’s Court. No penalty was imposed and no conviction was recorded. On appeal a District Court Judge allowed the appeal. He was ordered to enter into a recognizance. No conviction was recorded. The Tribunal had some regard to what occurred in these proceedings and this is challenged by the Applicant.
A search warrant was issued at the Respondent’s house and several items were seized. The Respondent was not present at that time. On this search a silencer and an unregistered Browning machine gun were found. He was also found to have some 5 electronic detonators without holding a necessary licence. In his interview the Respondent described these as igniters or to use the investigator’s words they were “sparking devices not detonators”. The Respondent could not recall how he had come by these.
He breached the Weapons Act 1990 by storing weapons without removing the bolts. The guns were held in a locked safe something which the investigator thought largely made the breach a technical one.
The Respondent was also found in possession of a Steyer semi automatic rifle. He had permission to render this weapon inoperable which made it possible to remove inoperable parts and replace them with operable parts. He had done this and used the rifle on pig shooting expeditions. He had not recorded the removal in the register. He was in fact on a shooting expedition at the time of the search. He gave a false account to the investigator of how the Steyer came to be missing and when asked to produce it at the Cairns police station threw the various components away in a paddock and a river. His explanation was that he had panicked.
The Tribunal made some findings which affect the significance of these matters. The Tribunal found that the silencer was purchased as a muzzler and was put away for use in putting together of plaques. The Browning was a war relic with no functioning parts. The Tribunal accepted that his possession of the silencer and the browning were because of his passion for collecting firearms.
Dr Greaves gave evidence which was uncontradicted. She had given evidence before the District Court which heard an appeal by way of rehearing against the Magistrates Court decision.
The doctor gave detailed evidence before the District Court which made significant findings in the Respondent’s favour based on this evidence.
Dr Greaves made a statement which was tendered before the Tribunal. She also gave oral evidence and was cross-examined.
Her evidence was that the Respondent suffered from a post traumatic stress disorder. This was diagnosed at the time he suffered the breakdown already referred to. This led him to make decisions and engage in activity based on “a drive to alleviate his distress which he experienced as a priority overriding good judgment.” The cause of his condition was the accumulation of stressful incidents in his work as a police officer. She thought that his engagement in firearms related activities took the form of a distraction or diversion from his emotional distress which he had trouble restraining because it was one of his few means of managing his internal distress.
In cross-examination at the Tribunal Dr Greaves said that in her view the Respondent’s capacity to exercise judgment was impaired although he did not lack a grasp of external reality.
She thought that whilst he still had the conditions he now had insight. He would not constitute any greater risk to the community than the average person. The holding of a licence would assist in his rehabilitation.
The Tribunal accepted the Respondent’s explanation for the importation of the items. The Tribunal found that whilst the Respondent’s behaviour (particularly in disposing of the parts of the Steyer) fell below what the public would expect of a licence holder the Tribunal accepted that this was out of character. Reference was made to his past excellent record and the character references tendered. The Tribunal accepted that the Respondent “could be regarded (as engaging in) unintentional disregard for the legislative requirements for holding a licence”.
The principles and object of the Weapons Act 1990 are set out in s 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.
The Act provides for a licensing regime. Section 10B provided for the considerations on any application for the grant renewal etc of a licence. In deciding whether a person is or is any longer fit to hold a licence consideration must be given to the mental and physical fitness of the person, whether there is a risk to public safety and the public interest. Consideration of the concept of “fit and proper person” is found in cases such as Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
The Tribunal approached the matter on the basis of the principles set out in Stower v Smart (2007) QDC 4.
I, with respect agree that these principles represent the approach which gives proper expression to the principles of the Weapon Act 1990.
These are as follows:
(a)It is of extreme importance to bear in mind the object of the Act which is stated in s 3(2) to be “to prevent the misuse of weapons”.
(b)The proper exercise of discretion would require the Magistrate to evaluate the evidence of the character of Stower.
(c)The proper exercise of discretion would then lead to the questions “in these circumstances is there any real prospect of Stower misusing his weapons so that his licence should be suspended? Is his right to possess firearms a real risk to public and individual safety?”
Here the Tribunal has carried out an exercise which involves weighing the considerations militating in favour of and against the Respondent but bearing in mind that all other considerations are subordinate to the need to ensure public and individual safety.
The Applicant contends that the Tribunal’s exercise has miscarried and advances a number of grounds for this contention.
The first matter raised in the outline is that the Tribunal erred in placing the reliance it did on the findings of the District Court (and to a lesser extent the Magistrates Court) in relation to the customs matter. These matters were, it is said, in other proceedings of a differing kind and were not directed to the issues the Tribunal was concerned with. Whilst the latter point might be accepted it cannot be said that the issues and the supporting evidence before the courts were irrelevant to this matter. In particular the psychiatric evidence was directed to issues closely related if not precisely equivalent. The findings that the actions were out of character and the findings relating to the effect of his psychiatric condition fall into this category. The fact that similar evidence was before the Tribunal does not affect this. The Tribunal on review was entitled to have regard to the evidence and findings in the customs proceedings and to the evidence before it in arriving at its conclusions.
It was contended that the Tribunal in finding that the Respondent’s intent in importing weapon parts was to use them in his business of creating plaques erred. Reliance was placed upon the Respondent’s conduct in relation to the Steyer semi-automatic weapon where the Tribunal made a finding adverse to the Respondent.
This ground involves an issue of fact based on credibility. The Respondent did not have direct evidence from the Respondent but had the record of interview. The Tribunal was not bound to reject the explanation in relation to this matter.
The Applicant takes issue with the finding at paragraph 27 of the reasons where the Tribunal referred to the Respondent engaging “in what could be regarded as unintentional disregard for the legislative requirements for holding a licence”. As I understand matters this term is the Tribunal’s shorthand term for the effect of the psychiatric evidence that the Respondent’s condition impaired his judgment and caused him to act impulsively. I do not think this is an unacceptable way of doing so.
The final matter advanced in the outline is the finding based on Dr Greaves’ evidence that the holding of a licence would help in the rehabilitation of the Respondent. It was contended that to have regard to a consideration of this kind would be contrary to the Act and in particular the terms of s 3.
Such a consideration would, if permissible, be, like all others, subordinate to the need to ensure public and individual safety.
I do not accept that such a consideration is totally irrelevant although it must be of relatively little weight.
There are some other grounds in the application which sets out the grounds of appeal which would be advanced if leave was given. These were not advanced in the outline. They are general in terms and I do not think any would justify the grant of leave.
The Tribunal emphasised the particular nature of the circumstances of this case. The matter must be regarded as close to the border line but in my view no error has been shown in the approach of the Tribunal or in the manner in which the relevant considerations were balanced and weighed.
The findings were open.
The matter turns on its own circumstances and I would refuse leave to appeal.
The application is refused.
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