Roesch v Queensland Police Service Weapons Licensing Branch
[2013] QCAT 717
•2 December 2013
| CITATION: | Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717 |
| PARTIES: | Vitali Roesch (Applicant) |
| v | |
| Queensland Police Service Weapons Licensing Branch (Respondent) |
| APPLICATION NUMBER: | GAR113-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 23 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howard |
| DELIVERED ON: | 2 December 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision to revoke Mr Roesch’s Firearms Licence Number 10042238 and to reject his application for a Concealable Firearms Licence Number 30035352 is confirmed. |
| CATCHWORDS: | GENERAL ADMINISTRATIVE REVIEW- WEAPONS LICENSING – where domestic violence order made but subsequently set aside on reopening application – where no appeal- whether domestic violence order ‘made’ – significance of traffic and criminal history Queensland Civil and Administrative Tribunal Act 2009 s 20 Munday v Gill (1930) 44 CLR 38 Commissioner of Police Service v Magistrate Spencer [2013] QSC 202 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr M Gibson, solicitor, Matthew Gibson Legal Pty Ltd |
| RESPONDENT: | Acting Senior Sergeant C Bradford, Queensland Police Service |
REASONS FOR DECISION
Mr Roesch has applied for the review of a decision made by the Queensland Police Service Weapons Licensing Branch (QPS) and dated 22 February 2013. The decision revoked Mr Roesch’s Firearms Licence Number 10042238 and rejected his application for a Concealable Firearms Licence Number 30035352.
Background
Mr Roesch had held weapons licences in Queensland from about 2001. In a final domestic violence order naming Mr Roesch as the respondent was made without admissions on 1 March 2011, the weapons licence held by Mr Roesch was revoked for the duration of the order.[1]
[1]Exhibit 2, VR4.
However, subsequently Mr Roesch made an application in the Magistrates Court to revoke the domestic violence order, while consenting to the making of a temporary order.[2] This was done in an attempt to address the effect of the operation of the Weapons Act 1990 (the Act) (which is discussed below), pending the hearing of the domestic violence application.[3]
[2]Exhibit 2, VR5.
[3]Exhibit 2, [12].
At the hearing of the revocation application on 22 March 2011, s 147A of the Justices Act 1886 was relied upon as the basis for making the application. The final order which had been made on 1 March was apparently set aside[4] (although an order to that effect was not issued, or if it was, it was not provided to the Tribunal). A temporary protection order was made on that date and the proceeding listed for final hearing some 6 months later.[5] The application for a protection order was later dismissed.[6]
[4]Exhibit 2, VR 9, especially at I-6.
[5]Exhibit 2, VR 8.
[6]Exhibit 10.
Although no evidence was presented of any relevant application and decision made in this regard, it is uncontroversial that Mr Roesch’s weapons licence was subsequently renewed on 15 September 2011.[7]
[7]Exhibit 3, [21] and the oral submissions of the parties at hearing.
In November 2012, Mr Roesch made an application for a concealable weapons licence. Subsequently, the decision now reviewed was issued.
The parties’ submissions
The QPS decision relies on two grounds to argue that the decision made was the correct and preferable decision. Firstly, because a final protection order was made by a Magistrates Court on 1 March 2011, by virtue of s 10B(2)(b) of the Weapons Act 1990, that Mr Roesch is deemed not to be a fit and proper person to hold a weapons licence because he has been subject to a domestic violence order in the preceding 5 years. Secondly, that in any event, Mr Roesch’s criminal and traffic histories are such that, he is not a fit and proper person to hold a weapons licence under the discretionary provisions of s 10B.
In respect of the protection order, Mr Roesch submits that the final protection order was set aside by a Magistrates Court under the equivalent of the slip rule, because the learned Magistrate who dealt with the matter failed to comply with s 24 of the Domestic and Family Violence Protection Act 1989, as a consequence of which, he submits the Court had no jurisdiction to make the order. He argues the order was void ab initio and therefore s 10B(2) deeming provisions were not activated. Further, he submits that his traffic and criminal histories do not suggest he is not a fit and proper person to hold a weapons licence.
Further he argues that because his weapons licence was renewed in September 2011, only matters arising after that time can be taken into account in determining this application. The QPS argues that all relevant matters must be taken into account as a decision is made on each occasion whether the person is or remains fit and proper to hold a licence.
The review process
The purpose of the Tribunal’s review is to produce the correct and preferable decision,[8] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision-maker (that is, in this case, the QPS) and makes the decision afresh.[9] The Tribunal’s decision is then taken to be a decision of the decision-maker.[10]
[8]Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) s 20.
[9]QCAT Act s 20.
[10]QCAT Act s 24(2).
Neither the Act nor the Queensland Civil and Administrative Tribunal Act 2009 limits the matters which may be considered on this application to those matters occurring since the last renewal/ issue of a weapons licence in the manner that Mr Roesch contends. I am entitled to consider all relevant matters in determining the review.
Weapons Act provisions
The object of the Act is to prevent misuse of weapons.[11] Weapons use is subordinate to public safety.[12]
[11]Weapons Act 1990, s 3(2).
[12]Ibid s 3(1).
A weapons licence may be issued only to a person who is a fit and proper person to hold a licence.[13] A licence may also be suspended or revoked if the licensee is no longer a fit and proper person to hold a licence.[14]
[13]Ibid s 10(2)(e).
[14]Ibid s 29(1)(d).
Section 10B of the Weapons Act 1990 sets out matters to be considered in deciding, for the issue or suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence. These include mental and physical fitness; whether a domestic violence order has been made against the person; whether any criminal intelligence or other information indicates that the person is a risk to public safety or that the person possessing a weapon would be contrary to the public interest.[15]
[15]Ibid s 10B(1).
Specifically, a person is deemed not fit and proper to hold a licence if, during the previous 5 year period,[16] a domestic violence order (other than a temporary order) has been made against the person.[17]
[16]Ibid s 10B(5).
[17]Ibid s 10B(2).
Under the Weapons Act 1990, a domestic violence order is taken not to have been made[18] in certain circumstances. If an appeal is made to the Court of Appeal or the District Court and the court discharges the protection order,[19] a domestic violence order is taken not to have been made.
[18]Ibid s 34AA(2).
[19]Ibid s 34AA(1)(a) and (2).
It is also relevant to note that a domestic violence order takes effect on the day it is made.[20]
[20]Domestic and Family Violence Protection Act 1989 s 34.
The effect of setting aside the domestic violence protection order
Mr Roesch’s argument is that the setting aside of the final order made on 1 March 2011 amounted to a vacation of the final domestic violence order effective the day it was made. That is, he says the setting aside order, made the order of 1 March 2011 void ab initio. Therefore, he argues that an appeal under s 34AA was not required to have the order discharged.
The only order of the learned Magistrate of 22 March 2011 is a temporary protection order made on that date specified that it is to continue in force until 2 November 2011 unless sooner varied or revoked. It is clear from the transcript that the learned Magistrate intended to set aside the final order that had been made under section 147A and reopen the proceedings. He specifically did not (noting that he did not have power to do so), declare the order made on 1 March was a nullity.[21]
[21]Exhibit 2, VR 9, especially I-6.
Section 147A provides for proceedings to be reopened and orders rectified in specified circumstances. Specifically, it includes power to set aside a conviction or vacate or vary an order. It contains no provision which affects the validity of an order previously made until it is set aside, and does not entitle a Magistrate to declare the original order invalid or void. The Domestic Violence and Family Protection Act 1989, does not contain a provision that non-compliance with s 24 will render the order made invalid.[22] Non-compliance with statutory requirements (despite the desirability of complying with them) does not automatically render an order a nullity.[23]
[22]For an example of such a provision in other legislation see Guardianship and Administration Act 2000 s 118(6). See also Urquhart v QPS [2011] QCAT 23 in which the Tribunal considered that revocation of a domestic violence order did not affect the making of the order.
[23]Munday v Gill (1930) 44 CLR 38; Todhunter v Zacka, ex parte Zacka [1965] Qd R 515; Commissioner of Police Service v Magistrate Spencer [2013] QSC 202 (6 August 2013) (per Henry J), especially at [48-57].
It is not for me to determine whether non-compliance rendered the domestic violence order a nullity. I am not entitled to do so, on this application for review of the revocation and refusal of a weapons licence. That would have been a question for a court, if an appeal had been made in respect of the final domestic violence order. Had there been an appeal, if the order was found to be a nullity and discharged, s 34AA of the Act would have applied to render the domestic violence order not made. There was not an appeal.
Is Mr Roesch deemed not to be a fit and proper person under s 10B(2)?
I must consider whether, on the evidence before me, a final domestic violence order was made.
As a matter of fact, I am satisfied that a final domestic violence order was made on 1 March 2011. I am further satisfied that as a matter of fact, the order was set aside on 22 March 2011, when the proceeding was reopened. There was not an order made which declared the order of 1 March 2011 a nullity or otherwise void ab initio. It was not, as a matter of law, a nullity.
Section 34AA of the Act does not apply. Therefore, for the purposes of s 10B(2)(b), a domestic violence order other than a temporary order was made against Mr Roesch within the 5 year period before the revocation and refusal decisions. Accordingly, by virtue of s 10B(2), Mr Roesch is deemed not to be a fit and proper person to hold a weapons licence.
Therefore, I am satisfied that the decision of the QPS to revoke Mr Roesch’s licence and reject his application for a concealable weapons licence is the correct and preferable decision. I make orders confirming the decision.
Observations
In case I am wrong, I make the observation that I would be satisfied in any event that Mr Roesch is not a fit and proper person to hold a weapons licence (and that therefore the decision made is the correct and preferable decision) for the reasons discussed below.
Mr Roesch has been charged on 2 occasions with assault occasioning bodily harm.[24]
[24] Exhibit 4, CCB011.
The first charge was determined on 4 January 2008, when Mr Roesch entered a plea of guilty. No conviction was recorded. He was fined $750 and ordered to pay compensation of $1,500. Mr Roesch told the Tribunal that this charge related to an occasion when 2 men attacked him in his own home and he responded.
The second charge was determined on 27 January 2012, when again Mr Roesch entered a plea of guilty. Again no conviction was recorded. Mr Roesch was fined $1,500. This charge arose when Mr Roesch followed his then ex-girlfriend to her home. He admitted that he kicked the door in. Mr Roesch admitted pushing his former girlfriend (with whom he was at the time attempting to reconcile) and her friend. He was charged with assaulting her female friend who was present at the premises. He says she attacked him, and that he pushed her away. He told the Tribunal that the pathology report showed it was a defensive wound, which he says was caused by his watch scratching her face.
It seems from Mr Roesch’s explanation in evidence that the incident was prompted by the fact that his ex-girlfriend had been seen by him earlier in the day to hug and kiss another man. He says he went to her home because he wanted to know where he stood with her.
Mr Roesch’s traffic history[25] includes 59 demerit points since 2001, 14 for speeding and 3 charges of unlicensed driving, and one charge for supplying a false and misleading statement. The latter related to supplying his German licence although he had lost his Queensland licence. Mr Roesch said that he thought he could use his German licence if he was here for less than 30 days. He says that at the time he was only in Queensland for one week visiting friends and was living most of the time in Germany.
[25]Exhibit 4, CCB009.
Mr Roesch minimised his culpability for the speeding offences. He says essentially that other people often drove his cars and one had been sold when the particular offence was committed. He says he was overseas at the time of some of the infringements. He says he always just pays the fine as he does not want to be in conflict with anyone.
Previous breaches of the law, and any proclivity for offending have been considered important in determining whether a person is a fit and proper person to hold a licence. As the Tribunal has observed, ‘irresponsible, uncontrolled or antisocial behaviour constituting a risk to public safety’ [26] is relevant, including traffic offences which may of themselves indicate a flagrant disregard for the law.[27]
[26]Bannan v QPS Weapons Licensing Branch [2010] QCAT 634, [9].
[27]Bannan v QPS Weapons Licensing Branch [2010] QCAT 634; McVie v QPS [2010] QCAT 431.
In my view, it is significant that Mr Roesch minimises his role in respect of his traffic and criminal history events. On his version, the responsibility for the events seem to lie with someone else. He says on each occasion that he was merely responding to violence against him in respect of the assault charges. In relation to the traffic history, vague assertions are made about other persons driving the vehicles. He did not specifically admit having been responsible for any of the many speeding offences, despite losing his licence for demerit points on several occasions. Losing his licence then did not stop him from driving it seems as there have been 3 unlicensed driving offences. Further, on one occasion he attempted to mislead Police, by supplying his German licence in circumstances when he knew he had lost his Queensland licence.
In my view, Mr Roesch has shown a disregard for the Queensland laws. Although none of the history relates to weapons, it is reasonable to infer, and I would draw the inference that that his ongoing accumulation of traffic and other offences demonstrates irresponsible and antisocial conduct indicating that he is a risk to public safety. In my view, authorising him to possess a weapon is contrary to the public interest.
Therefore, I would conclude that the decision of the QPS should be confirmed.
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