TEC v Queensland Police Service - [2020] QCAT 294

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

TEC v Queensland Police Service [2020] QCAT 294

PARTIES:

TEC
(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR434-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

28 July 2020

HEARING DATE:

15 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

1. The decision of the Queensland Police Service – Weapons Licensing to reject the application for the issue or renewal of a firearm licence dated 4 October 2019 is confirmed.

2. These reasons are to be published only in a de-identified format.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – whether correct and preferable decision – whether ‘fit and proper’ person to hold firearm licence - where evidence of good fame and character - where past behaviour attributable to drug-induced psychosis – where future possibility of mental unwellness in situation of relationship breakdown or other unstable work or life circumstance – where applicant did not present same risk as he did when previous incidents of domestic violence occurred – where level of risk must be determined by more than how applicant behaves when their situation is stable, but how they respond to situations of conflict or stress – where past behaviour involved threats of self-harm and violence and actual violence – where weight of evidence is that applicant had at times not responded well when confronting situations of family conflict or relationship breakdown – where significant risk to personal safety if similar behaviour occurred in future – where applicant incorrectly certified application form – where evidence of lack of insight – where real risk to public and individual safety outweighs protective factors

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66
Weapons Act 1990 (Qld), s 3, s 10B, s 24, s 29

Australian Broadcasting Tribunal v Bond & Ors (1990) 94 ALR 11
CAT v Queensland Police Service [2017] QCATA 43

Harley v Department of Justice and Attorney-General [2012] QCAT 620
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Liseo v Queensland Police Service [2006] QDC 496
Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378
Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56
Re TAA [2006] QCST 11
Stower v Smart [2007] QDC 004
Ward v NSW Commissioner of Police [2000] NSWADT 28
Zanders v Queensland Police Service – Weapons Licensing Branch [2020] QCAT 8

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Sergeant D Ayscough appeared for the Queensland Police Service

REASONS FOR DECISION
What is this Application about?

On 30 January 2019, TEC applied to the Queensland Police Service – Weapons Licensing Unit (QPS) for a firearms licence for hunting and recreational shooting. On 4 October 2019, the QPS rejected his application due to concerns mainly relating to domestic violence and mental health.[1]
[1]Decision dated 4 October 2019.
TEC has applied to the Tribunal to review the decision.
What is the purpose of this review?
The purpose of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] QCAT 294
Decision Date: 28 July 2020

CaseChat Overview and Summary

The case of TEC v Queensland Police Service involved the applicant, TEC, challenging the decision of the Queensland Police Service, Weapons Licensing Branch to reject his application for a firearm licence. The central issue before the court was whether the decision to deny TEC a firearm licence was the correct and preferable one, considering his suitability as a 'fit and proper' person to hold such a licence. This determination required the court to weigh TEC's past conduct, particularly instances of domestic violence linked to drug-induced psychosis, against his current behaviour and character references.

The legal issues the court had to address included whether TEC's past behaviour, involving threats of self-harm, violence, and actual violence, indicated a real risk of misuse of firearms, and if his right to possess firearms posed a significant risk to public and individual safety. The court had to consider the object of the Weapons Act 1990 (Qld) and whether TEC's past behaviour, despite improvement, demonstrated a capacity to respond appropriately to situations of conflict or stress. Additionally, the court needed to determine if the risk TEC posed outweighed the protective factors, such as his good character and efforts to improve himself.

The court concluded that despite TEC's improved behaviour and good character references, his past conduct and potential for future instability, particularly in stressful situations, indicated a significant risk to personal safety. The court emphasised that the level of risk must be assessed based on how TEC might respond to conflict or stress, rather than just his behaviour when stable. The weight of evidence suggested that TEC had not always responded well to family conflict or relationship breakdown, posing a significant risk if such behaviour recurred. The court also noted that TEC had not fully understood the implications of his past actions and lacked insight. Consequently, the court upheld the decision to deny TEC a firearm licence, finding that the real risk to public and individual safety outweighed the protective factors presented. The decision was confirmed, and the reasons for the decision were to be published in a de-identified format due to the sensitive nature of the allegations.

Orders

Orders of the court

1. The decision of the Queensland Police Service – Weapons Licensing to reject the application for the issue or renewal of a firearm licence dated 4 October 2019 is confirmed.

2. These reasons are to be published only in a de-identified format.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The term ‘fit and proper’ is not defined in the Weapons Act 1990 (Qld) (‘Weapons Act’) but it does prescribe matters to consider.[7] This means that the Tribunal must not consider the offending behaviour in isolation but must specifically consider:[8](a)The object of the Weapons Act to prevent the misuse of weapons;[9](b)The applicant’s character;(c)Whether the applicant has a real prospect of misusing weapons; and(d)Whether the applicant’s right to possess firearms is a real risk to public and individual safety.[7]Weapons Act 1990 (Qld), s 10B.[8]Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378, [27] applying Stower v Smart [2007] QDC 004.[9]Weapons Act 1990 (Qld), s 3(2).What is the evidence supporting TEC’s application for a licence? TEC has a young family who he loves and works hard to support. He has grown up around, and is comfortable with, handling firearms and seeks a licence “as a sport and target shooter for pest control on a volunteer basis for family and friends on their properties”.[10] It is also important to TEC to have a licence since the passing of his brother, who wanted TEC to have his guns upon obtaining his licence.[10]Statement of BWJ dated [omitted]. TEC is well regarded by his family and friends, many of whom provided references attesting to his good fame and character.[11] In particular, the Tribunal notes the following from the references:[11]Reference of PHS dated [deleted]; Reference of SA [omitted]; Reference of RD dated [omitted]; Reference of JN [omitted].(a)Although TEC had issues when he was younger, he has grown from the experience into an honest, trustworthy and conscientious adult; (b)TEC is a dedicated father and family man;(c)TEC has supported friends in need and is willing to help others;(d)TEC can keep a “cool head in a stressful situation”; (e)TEC seldom drinks, is drug-free and takes no medication to maintain his mental state;(f)Since the offending behaviour, TEC has made every effort to improve himself;(g)TEC would often take his late brother shooting and due to his brother’s medical condition, TEC was given a high amount of responsibility in handling his weapons including securing them in the safe and with transit; and(h)TEC is safety-conscious around guns, helping to ensure that his late brother’s guns were legally removed and transferred into his sister’s name pending the outcome of his licence application. The Tribunal is satisfied that TEC is a young man held in high regard by his family and friends. More recently, he has shown resilience in his character and a willingness to keep going, despite life’s setbacks. Dr HD prepared a report[12] that relevantly provided:(a)TEC has not had any suicidal attempts or homicidal attempts;(b)TEC is not on any anti-depressants, anti-psychotics or anti-anxiety agents; and(c)He could see no reason why TEC could not hold a firearms licence.[12]Report dated [omitted]. As at the date of his report, Dr HD had only been TEC’s treating General Practitioner for the past six months. Dr HD’s access to TEC’s medical records was limited to the previous four years. Importantly, this did not extend to the relevant incidents in 2008, 2012 and 2013. Moreover, the report does not provide any analysis or assessment of TEC’s mental health issues. These factors reduce the weight of the report.

Decision

Reasons for decision

Unfortunately for TEC, this means that on this occasion his improved behaviour in recent times and otherwise good character are not sufficient to displace the Act’s paramount concerns. Because of this, it is not in the public interest for him to hold a firearm licence. What is the ‘correct and preferable’ decision? The ‘correct and preferable’ decision is that the decision of the Queensland Police Service, Weapons Licensing to reject the application for the issue or renewal of a firearm licence dated 4 October 2019 is confirmed. Because these proceedings involve sensitive allegations of domestic violence, these reasons are published in a de-identified format.[32][32]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	TEC v Queensland Police Service [2020] QCAT 294
PARTIES:	TEC (applicant)
v
QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent)
APPLICATION NO/S:	GAR434-19
MATTER TYPE:	General administrative review matters
DELIVERED ON:	28 July 2020
HEARING DATE:	15 July 2020
HEARD AT:	Brisbane
DECISION OF:	Member Hughes
ORDERS:	1. The decision of the Queensland Police Service – Weapons Licensing to reject the application for the issue or renewal of a firearm licence dated 4 October 2019 is confirmed. 2. These reasons are to be published only in a de-identified format.
CATCHWORDS:	FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – whether correct and preferable decision – whether ‘fit and proper’ person to hold firearm licence - where evidence of good fame and character - where past behaviour attributable to drug-induced psychosis – where future possibility of mental unwellness in situation of relationship breakdown or other unstable work or life circumstance – where applicant did not present same risk as he did when previous incidents of domestic violence occurred – where level of risk must be determined by more than how applicant behaves when their situation is stable, but how they respond to situations of conflict or stress – where past behaviour involved threats of self-harm and violence and actual violence – where weight of evidence is that applicant had at times not responded well when confronting situations of family conflict or relationship breakdown – where significant risk to personal safety if similar behaviour occurred in future – where applicant incorrectly certified application form – where evidence of lack of insight – where real risk to public and individual safety outweighs protective factors Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 66 Weapons Act 1990 (Qld), s 3, s 10B, s 24, s 29 Australian Broadcasting Tribunal v Bond & Ors (1990) 94 ALR 11 CAT v Queensland Police Service [2017] QCATA 43 Harley v Department of Justice and Attorney-General [2012] QCAT 620 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Liseo v Queensland Police Service [2006] QDC 496 Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378 Peri v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 56 Re TAA [2006] QCST 11 Stower v Smart [2007] QDC 004 Ward v NSW Commissioner of Police [2000] NSWADT 28 Zanders v Queensland Police Service – Weapons Licensing Branch [2020] QCAT 8
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Sergeant D Ayscough appeared for the Queensland Police Service