Trad v Queensland Police Service, Weapons Licensing Branch (No 2)
[2014] QCAT 578
•12 November 2014
| CITATION: | Trad v Queensland Police Service, Weapons Licensing Branch (No 2) [2014] QCAT 578 |
| PARTIES: | Michael Trad (Applicant) |
| v | |
| Queensland Police Service, Weapons licensing Branch (Respondent) |
| APPLICATION NUMBER: | GAR389-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 24 September 2014 |
| HEARD AT: | Cairns |
| DECISION OF: | Member Quinlivan |
| DELIVERED ON: | 12 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The application for review of the decision of the Weapons Licensing Branch dated 22 October 2013 to revoke the minor's licence of Michael Trad is dismissed. |
| CATCHWORDS: | Review - “fit and proper person” - associates |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Michael Trad |
| RESPONDENT: | Senior Sergeant AT Cavanagh, Queensland Police Service, Weapons Licensing Branch |
REASONS FOR DECISION
The object of the Weapons Act 1990 (Qld) (the Act) is to prevent the misuse of weapons. The principles underlying this Act are that weapon possession and use are subordinate to the need to ensure public and individual safety. 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.[1]
[1]Weapons Act 1990 (Qld) s 3.
On 19 November 2010 Michael Trad (the applicant) made an application to the Queensland Police Service, Weapons Licensing Branch (the respondent) to obtain a minor's weapons licence. On 22 October 2013 he was issued with a licence.
The licence authorized the applicant to possess and use registered weapons as detailed on his licence at an approved shooting range. He had to be a financial member of an approved club and regularly attend that club and participate in the sport of target shooting. Any weapon that he possessed had to be securely stored unless otherwise authorized, justified or excused by law.
On 22 October 2013 the applicant was issued with a revocation notice regarding his licence for the following reason:
“The authorized officer is satisfied that you are no longer a fit and proper person to hold a firearms licence due to your continued association with persons who are disqualified from holding or obtaining a licence under the Weapons Act 1990.”
On 1 November 2013, the applicant sought a review of the decision in the Tribunal. He stated that the decision is wrong because he has never been in trouble with the police, he has never broken any rules and he has never been involved with any criminal activity.
The applicant says that just because he is a young person still living at home with his family, he does not think that this is reason enough for the police to treat him this way. He says he has always taken his responsibilities as a weapons licence holder very seriously. He says the loss of his licence would not only mean the end of his sport, but would also be a great social lost to him, cutting him off and separating him from his friends.
He requests that the revocation notice be stopped and his naming as not a “fit and proper” person be reversed. He says the undoing of these two things would restore his good name and reputation.
What is the role of the Tribunal?
This application is made pursuant to section 20 of the QCAT Act 2009. The Tribunal must hear and decide the review by way of fresh hearing on its merits. In exercising its review jurisdiction the Tribunal must determine the application in accordance with the QCAT Act and the enabling Act under which the decision was made.
The purpose of the review is to produce the “correct and preferable”[2] decision. The Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision, or set aside the decision and return the matter for reconsideration to the decision-maker with or without directions.
[2]QCAT Act s 20(1).
Section 29(d) of the Weapons Act provides that an authorized officer may revoke a licence if the authorized officer is satisfied that the licensee is no longer a “fit and proper” person to hold a licence. Section 10B(1) sets out the matters which an authorized officer must have regard to in deciding whether a person continues a “fit and proper” person to hold a licence.
What Mr Trad has to say?
In his opening statement the applicant stated that he is 17yo and was born and raised in Cairns. He is in his final year of secondary schooling. He expects to commence an apprenticeship in refrigeration in January 2015.
He contended that the purpose of the hearing was to prove that the decision to revoke his minor’s shooting licence was wrong. He claimed that respondent believes he is doing this for the safety of the public. He submitted that the respondent believes that his father is a bad person and that he will get access to the applicant’s guns if they continue to live at the same address, which is their family home.
Further he asserts that the reason why the respondent opposes his father helping or representing him in these proceedings is because when he wins his father will get access to his guns.
The applicant submits that the flaw in the respondent's argument is that he currently only has a minor's licence or as he characterises it a “learner's permit”. He says that it cannot be used to buy or purchase a gun. He states that only a person over 18 with a full adult licence can buy, possess or store a gun.
The applicant strongly contends that there is no logical reason to take away his licence because it is worthless to everyone except him. He asserts that there is no conflict of interest with his father or anyone else because there is nothing he could gain by him keeping his licence.
Prior to the commencement of this hearing Mr Tim Trad (the applicant’s father) advised the Tribunal on the 21 August 2014 that he would be seated with and representing his son throughout the hearing. In response the respondent submitted that even though the applicant does not need the Tribunal’s leave to be represented, the person nominated must be an appropriate person.
This issue was determined on an interlocutory basis by Senior Member O’Callaghan who determined that Tim Trad was not an appropriate person to represent Michael Trad for the purposes of section 43(4)(b) of the QCAT Act 2009. The Senior Member noted that there was nothing to prevent Tim Trad from attending the hearing as a support person, if the applicant decided to represent himself.
Subsequently on 17 September 2014 the applicant advised the Tribunal that Tim Trad was to be removed from the list of witnesses, “so he can support me and remove the difficult situation that (the Senior Member) has identified”. Further Tim Trad’s statement was no longer part of the applicant’s case.
The applicant's case consisted of a number of supporting statements from various family members, namely Mrs Kim Trad his mother, Emily Trad his sister, Peter Trad his brother and his uncle Gavin Peterson who is a former police officer. Only Kim Trad and Gavin Peterson were available at the hearing to give oral evidence. Consequently I accept that little or no weight can be given to the other statements.
In his written statement, Mr Peterson offered his own residential address as a storage address for any future firearm application by the applicant. He acknowledged that a primary concern for the Tribunal would be the potential for Tim Trad to have access to firearms should the applicant continue to reside at his parent’s address and be granted a licence.
In his oral evidence Mr Peterson said that he had been a police officer for 30 years. He referred to Tim Trad having obsessive traits. He acknowledged that Peter Trad has a drug problem but said that he was reasonably confident that Peter was currently drug free. He felt that he had been instrumental in arranging for Peter to get out of the loop.
Subsequent to the hearing on 9 October 2014 Mr Peterson wrote to the Tribunal seeking to clarify a number of matters that were raised during his oral evidence. The respondent was given an opportunity to respond to the matters raised and argued strenuously that the information provided by Mr Peterson should be treated very carefully and given little weight. He submitted that it is irrelevant to the issue facing the Tribunal of whether it is in the public interest for the applicant to hold a firearms licence due to his close association with persons who could not be relied on to do the right thing.
I accept that the material provided by Mr Peterson after the hearing should attract little weight. I am satisfied that the primary issue to be determined is whether it is in the public interest for the applicant to hold a minor’s weapons licence due to his close association with persons who could not be relied on to do the right thing. I do not find that the material received from Mr Peterson assists in that determination.
In cross-examination the applicant was asked by the respondent about his father’s statement. The applicant admitted that he had read the statement before submitting it, but accepted it as it was. In that statement Tim Trad acknowledges that the applicant does not share his passion.
The applicant expressed concern, based on his father's comments, that if he was “branded” as not a “fit and proper” person then he would never be able to get a blue card, never get a job that involves working with children, never become a schoolteacher, never join the public service or any other job where his reputation is called into consideration. The applicant acknowledged that he had not attempted to validate his father's claims.
The evidence from the Weapons Licensing Branch
On behalf of the respondent, Senior Sergeant Cavanagh submitted that it is important for the Tribunal to address the concept of whether the applicant is a “fit and proper person” and the public interest. He pointed out that the Weapons Act does not list the factors that must be taken into account when deciding whether it is in the public interest to revoke a licence.
In particular, he drew the Tribunal's attention to the matter of Dabek v. The Chief Constable of Devon and Cornwall, Justice of the Peace Reports 1990 Vol 155 at 55 where it was stated:
“"… although there was an element of fairness in the argument that the question of the revocation of a shotgun certificate should be addressed entirely on the holders own character the implementation of that argument would be quite impracticable because the fact that an innocent person is in possession of a shotgun is not much of a safeguard if somebody who cannot be relied upon is in a position to have access to it.”
The respondent emphasized that the decision of the Court generally held that normally the applicant’s circumstances should be the only consideration, however if the applicant is associated with a disqualified person then the issuing authority has to also take into account that association. In this case the applicant's father, mother and elder brother have all come to the attention of the weapons Licensing Branch for the wrong reasons.
The respondent submitted that the matter before the Tribunal was simply - should the applicant hold a licence given his very close association and dependence on disqualified or unlicensed persons who have a history of weapons offences? Further the issue for the Tribunal is to determine whether it is in the public interest for the applicant to continue to hold a licence due to those associations and it follows – the associates of those persons.
The respondent provided evidence of Tim Trad’s significant criminal history. He has twice been disqualified for life from holding or obtaining a weapons licence. Tim Trad appealed his first disqualification for life and was subsequently disqualified for a period of 10 years.
The applicant's mother Kim Trad has three weapons offences from around 1999 and has not held a weapons licence since that time. The respondent submits that these matters were breaches of principles that were explicitly stated as being required to ensure the object of the Act is achieved.
The respondent also referred to the criminal history and licence status of the applicant's brother Peter Trad who was disqualified from holding or obtaining a weapons licence for five years from 10 December 2012. While Peter Trad provided a statement in support of the applicant he was not available to give evidence. There is nothing in his statement to suggest any remorse on his part.
On 31 July 2014 the applicant required three persons to attend for cross-examination at the hearing. In particular, Sgt Clayton Bradford gave evidence that he had not been involved in the decision regarding whether the applicant obtained a minor’s weapons licence but he was involved in decisions in relation to Tim Trad and Peter Trad.
Sergeant Clayton Bradford gave confidential evidence that there was criminal intelligence that would indicate that authorizing the applicant to possess a weapon’s licence would be contrary to the “public interest”. He gave further evidence that previously he had formed the view that Tim Trad was not a “fit and proper” person under the provisions of the Weapons Act and that he was a consistent recidivist offender.
Decision
Section 10B of the Weapons Act provides that in deciding whether a person is a “fit and proper person” to hold a license I must consider a number of matters including whether there is any criminal intelligence or other information that indicates that authorizing the applicant to possess a weapon will be contrary to the public interest. Further I must also consider the public interest.
The applicant says that he has never been in any trouble with the police, he has never broken any laws and he has never been involved in any criminal activity. He says that the police believe he is not a “fit and proper” person because he lives at home with his family and as a consequence he is an associate of “multiple criminals” who live there.
I have had the opportunity to observe the applicant in person during the course of this hearing. He has conducted himself appropriately and has done his best to present his case. I have also observed that he is greatly influenced by his father and throughout the hearing he took his cues and direction from his father. There is no doubt that his father holds considerable sway over the applicant.
I am conscious that the applicant will soon turn 18yo and become an adult. He is clearly quite involved in his sport as a shooter. Prior to these proceedings he had a minor's shooting licence for about three years for use at a shooting range under supervision. He is looking forward to a bright future and is concerned that having been identified as not a “fit and proper” person to hold a Weapons licence will count against him.
On the other hand the applicant's family has an extraordinary history of total disregard for the principles and object of the Weapons Act. In particular the applicant's father has been described as obsessive in his desire to possess and use a wide range of weapons.
In my view it is significant that Tim Trad decided to be a support person for the applicant rather than give evidence on his behalf. Further the applicant's brother Peter Trad did not attend the proceedings. Therefore I accept the respondent’s submission that the material received by the Tribunal from Peter Trad and Tim Trad “are self-serving statements which clearly display a lack of contrition or acceptance that what they have done which has resulted in their weapons licence disqualifications is their fault”.
I am satisfied that the principles and objects of the Weapons Act provide that the possession and use of weapons is subordinate to the need to ensure public safety. Inevitably this will involve strict requirements to be maintained for the approval of licences and the possession of firearms.
I am satisfied that the applicant’s family are in position of influence over him at this point in his life. I accept that there is a risk that if the applicant were to be granted a minor’s weapons licence then once again his father will be in a position to interfere with his use and possession of any weapons.
In my view Michael Trad is a young man with considerable potential who needs to establish his own path in life. I accept but he does not have a criminal history and does not appear to have been involved in any criminal activity.
However he is currently constrained by his association with people, albeit members of his own family, whose history of involvement with weapons has been totally unacceptable and inappropriate. This is a very serious concern and in my view constitutes a risk to public safety and as a result it is in the public interest that he should not hold a minor’s weapon’s licence
I order that the application for review of the decision of the Weapons Licensing Branch dated 22 October 2013 to revoke the minor's licence of Michael Trad is dismissed.
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