Urquhart v Queensland Police Service Weapons Licensing Branch
[2011] QCAT 23
•20 January 2011
| CITATION: | Urquhart v Queensland Police Service Weapons Licensing Branch [2011] QCAT 23 |
| PARTIES: | Scott Gordon Urquhart |
| v | |
| Queensland Police Service Weapons Licensing Branch |
| APPLICATION NUMBER: | GAR125-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 7 September 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Sean Barry, Member |
| DELIVERED ON: | 20 January 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The application is refused. |
| CATCHWORDS : | Weapons licensing; principles and objects of the Weapons Act 1990 considered; meaning of ‘offence of violence’ in reference to the Weapons Act 1990 licensing provisions; when the ‘making’ of a domestic violence protection order disqualifies someone from holding a weapons licence under the provisions of the Weapons Act 1990; whether a literal interpretation should be applied to the interpretation of section 10B(2)(b) of the Weapons Act 1990; whether the Applicant is a ‘fit and proper person’ to hold a weapons licence. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT : | Mr Scott Gordon Urquhart represented by Mr Klevansky of Counsel, instructed by Sanderson and Parks Solicitors |
| RESPONDENT: | Queensland Police Service (Weapons Licensing Branch) represented by Senior Sergeant Bradford |
REASONS FOR DECISION
Introduction
This is an application to review a decision of the Queensland Police Service Weapons Licensing Branch, revoking the weapons licence held by the Applicant, by deciding the was no longer a fit and proper person to hold the licence.
In the revocation order of 11 March 2010, the Authorised Officer from the Weapons Licensing Branch provided the following reasons for the revocation, namely:
‘The Authorised Officer is satisfied that you are no longer a fit and proper person to hold your licence due to you being named as a respondent spouse in a Domestic Violence Order.
The Authorised Officer is satisfied that you are no longer a fit and proper person to hold your licence due to it not being in the public interest’.
As in the majority of these cases, the Respondent has filed material, which argues its original application should be upheld.
Factual background
This application stems from the Respondent having his weapons licence revoked in March 2010. There will be other issues discussed in this decision, but the primary issue of concern for the Respondent, which led to revocation of the weapons licence, is the making of a domestic violence protection order against the Applicant on 11 November 2008 in the Biloela Magistrates Court, when he was not present in court. There had been a number of mentions of the matter when the Applicant’s solicitor had attended the Court. It is clear from the evidence, the aggrieved person did not wish the application to proceed. Therefore, on 18 November 2008 an application was brought by the Applicant to revoke the domestic violence protection order and the Magistrate revoked the order.
The Applicant got on with his life and in July 2009 he sought to have his weapons licence renewed and discovered the difficulties that he may face as a result of the domestic violence protection order being made against him.
The Applicant brought an application for extension of time to appeal to the District Court, regarding the decision making the protection order[1]. His Honour Britton SC DCJ held there is no express power to grant an extension of time to appeal and that in any case, ‘the order was revoked and there is, therefore, no order in respect of which an appeal can be made. I note His Honour described the Applicant’s plight as ‘an unfortunate situation … and one for which one ‘would think that there must be some remedy.’ So, even if the power to extend time existed, His Honour could not review the making of an order, that did not exist any longer.
[1] Scott Gordon Urquhart v Krista Marie Smillie (Unrep, Rockhampton District Court no D.101/2009, Britton SC DCJ, 11 December 2009).
The primary questions in this decision are whether generally the Applicant is a fit and proper person to hold a weapons licence and what affect the making of the domestic violence and its revocation, have on the Applicant’s ability to hold a licence? To assist in understanding this matter, the following is a chronology of events, relevant in this matter:
| Date | Event |
| 30 April 2001 | Applicant first issued with a firearms licence |
| 28 November 2005 | Domestic violence protection order names Applicant as a respondent, strangely expiring 1 December 2005 (Police application) |
| 24 March 2006 | Licence was renewed after application by the Applicant (Applicant did not reveal a protection order had been made against him) |
| 1 September 2007 | Applicant named as Respondent in temporary domestic violence order |
| 2 January 2008 | Driving incident involving the Applicant and his partner which led to criminal charges and the application for a domestic violence protection order |
| 2 January 2008 | Police application for domestic violence protection order filed in the Taroom Magistrates Court, based on the driving incident (which led to the order of 11 November 2008) |
| 21 August 2008 | Applicant convicted of offence of dangerous operation of a vehicle (convicted and fined $1,750.00, disqualified from driving for 15 months) |
| 11 November 2008 | Domestic violence order made, naming Applicant as Respondent |
| 17 November 2008 | Domestic violence order revoked |
| 15 December 2008 | Further domestic violence protection order application filed by same aggrieved in Gladstone Magistrates Court (temporary order made 12 January 2009, final outcome not clear) |
| 28 December 2008 | Weapons licence number 10043086 seized by Police (due to the now revoked protection order, revoked on 17 November 2008 – delay in Police system for some reason) |
| 11 December 2009 | Attempted appeal heard in District Court concerning the domestic violence order decision from November 2008 |
| 10 March 2010 | Licence number 12449754 revoked by the Respondent |
| 14 April 2010 | Applicant provided statutory declaration indicating he does not possess weapons and his weapons are now held by his father |
The Hearing
Applicant’s case
I am told the Applicant works for a coal mining company and he earns income from controlling feral animals for that company. In written submissions filed in this matter and in oral argument, Counsel for the Applicant divided arguments into two parts.
First, that following the revocation of the protection order, the approach should be taken which treats the matter as though the order has never existed in the first place. This argument was based on the view that ‘revoke’ in terms of the Domestic and Family Violence Protection Act 1989 (the DVA)[2] should mean as the Macquarie dictionary says, ‘to take back, or withdraw; annul, cancel, or reverse’.
[2] Power to revoke an order is contained in section 36 of the DVA, ‘revoke’ is not defined in the act.
That would mean the Applicant would not be caught by the mandatory weapons licence disqualifying provisions of section 10B(2)(b) of the Weapons Act 1990 (the Act), regarding domestic violence orders, which is what the Respondent argues in the current case.
Further, the Applicant argues to do otherwise, would result in an ‘absurd and unreasonable result’[3], due to the fact that an appeal on the issue of the protection order heard by the District Court was his only way of protecting his interests, when in fact the order should never have been made in the first place, because the Applicant was not present and the aggrieved did not wish an order to exist.
[3] Reference was made to section 14B of the Acts Interpretation Act 1954.
The second limb of the Applicant’s case, is that where in section 63(1) of the DVA it speaks of a Magistrate having the power to ‘revoke’ an order (which is what happened in the current case), ‘revoke’ should be read analogous to section 34AA of the Act where is speaks of the situation when a District Court Judge ‘discharges’ a protection order on appeal, it is ‘taken not to have been made’.
In other words when the Magistrate revoked the protection order in this case, it has the same meaning as a discharge in section 34AA of the Act and so in effect, the protection order never existed and so the Applicant would not be automatically excluded from holding a weapons licence.
The Applicant’s Counsel argued that overall the Applicant was a fit and proper person to hold a licence, taking into account his criminal history, an offence of dangerous operation of a vehicle (which will be discussed), personal circumstances, his need for a licence and the domestic violence allegations in this case.
Respondent’s case
The Respondent's case is the Applicant is not a fit and proper person to hold a weapons licence (and it is not in the public interest he holds one) for the following reasons:
§ when the Applicant applied for the renewal of his licence in 2006, he failed to disclose to the Weapons Licensing Branch that he had been the subject of a domestic violence order in 2005. The renewal form asks whether an applicant has been the subject of the domestic violence order in the last five years. The Respondent argues as a result, the Applicant made a false and misleading statement in a material particular. The Respondent relies on section 157(2), which in substance says a licence obtained by a false statement and misrepresentation is void;
§ as noted in the chronology above, the Applicant pleaded guilty to an offence of dangerous operation of a vehicle. The Respondent argues this is a conviction for a ‘serious violent offence’ as referred to in section 161A of the Penalties and Sentences Act 1992 and that would exclude him from holding a weapons licence. I am of the view this is an incorrect interpretation of that section as the offence in this case was not declared a serious violent offence and the Applicant did not receive a term of imprisonment[4]. This is immaterial in this case for reasons which will be revealed, but the Respondent could point to this offence as something which might raise concerns due to the operation of section 10(B)(1)(c) and / or (d) of the Act;
[4] See section 161A of the Penalties and Sentences Act 1992.
§ reliance is made upon a traffic incident that led to the charge of dangerous operation of a vehicle. In short compass, the Applicant's de facto partner (she was also the aggrieved person in the domestic violence orders) was driving a motor vehicle with their infant child in the rear seat and the Applicant sitting in the front passenger’s seat. An argument ensued and the Applicant grabbed the steering wheel and pulled on the hand brake of the vehicle, which caused the vehicle to leave the road and have a collision with the gutter.
§ the Respondent argues that relying on the definition of assault in section 245 of the Criminal Code Act 1899, that this is an offence of ‘violence’ and would therefore activate the exclusion provisions of section 10B(2)(a)(ii) of the Act.
§ I do not accept that this is an offence of violence per se in this case, as it will always depend on the circumstances[5]. For example, if someone used a vehicle to deliberately drive at someone standing near the road, might be an act of violence. The circumstances of the case will always be the issue. There is a difference between an act of violence and a breach of the technical definition of assault in our Criminal Code. For reasons which will be discussed, whatever the definition one holds to will not affect the outcome in this proceeding.
[5] For a similar finding on a dangerous operation related offence, see the comments of Magistrate Taylor in Barry James Power v Queensland Police Service (Unrep., Magistrates Court of Queensland, Noosa, 28 August 2003).
§ in addition, domestic violence protection order (which was a Police application) was not pursued (perhaps due to the lack of cooperation from the Applicant’s partner) and if the Police believed an act violence had occurred which complied with the definitions in the DVA, they should have pursued the application in the interests of the Applicant’s partner and the public interest.
§ I heard evidence during the hearing about this incident, which leads me to believe the Applicant continues to minimise his part in the offence and lacks insights about the danger, which existed. I do accept, however, that he was not intending to cause injury to his child or his de facto partner, but was involved in what I might call an act of stupidity.[6] This does not mean the offence is not something that cannot be considered as part of the overall assessment of whether the Applicant is a fit and proper person.
§ finally and most powerfully, the Respondent relies on the making of the domestic violence protection order on 11 November 2008, arguing the ‘making’ of the order automatically excludes the Applicant from holding a weapons licence[7].
[6] I also do not mean that intention has to be an element before ‘violence’ can occur, recklessness and wilful blindness can also sometimes suffice.
[7] Section 10B(2)(b) of the Act.
Legal principles
I recently discussed the general principles, which apply in a case such as this and again I will approach this matter on the basis that this is a fresh hearing and I am required to reconsider the original decision and make the ‘correct and preferable decision’ in the circumstances. In that decision I also considered the general provisions of the Act I need to take into account and also the correct test in deciding whether someone is a ‘fit and proper person’. Again I adopt those views in this matter, without repeating them. [8]
[8] See Young v Queensland Police Service Weapons Licensing Branch [2010] QCAT 629, para 21 to 34;
Discussion
After viewing all the material filed by the parties and hearing the matter for some three hours, it seems to me the Respondent does have evidence to support its decision. For example, it points to the Applicant failing to notify he had become the subject of a domestic violence protection order, on or about 28 November 2005. In real terms it seems he should have been in the same position then, as he is now, if he had declared the issue.
It seems strange the Applicant has become the subject of so much attention with regard to applications for domestic violence protection orders over the years, some were applications by the Police? I note the aggrieved has failed to support these applications in some cases, but the dynamics of these matters can be complicated. On balance I am concerned that the Applicant seems to be so unlucky with these applications being made against him, on so many occasions, although it must also be said they have mostly not resulted in final protection orders being made.
There is also the dangerous driving incident, which did occur in a domestic context and could have resulted in anyone in the vehicle being seriously injured, or worse. I do note the Applicant’s ex-partner and child did receive some minor injuries. Other road users were also placed at risk by this stupid act and what all these incidents do raise is whether the Applicant is prone to acting on impulse, something of concern when weapons are concerned. The points discussed here raise whether the Applicant is a risk to public safety and it is not in the public interest for him to hold a weapons licence. However, the domestic violence order on November 2008 provides the Applicant with other distinct problems.
In my view, the Applicant became someone who was not a fit and proper person to hold a weapons licence, when the domestic violence protection order was ‘made’ on 11 November 2008, due to the provisions of section 10B(2)(b) of the Act which states:
‘(2) However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period—
…
(b) a domestic violence order, other than a temporary protection order, has been made against the person.
…
(5) In this section—
relevant period means—
(a) for the issue or renewal of a licence—the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or
(b) for the suspension or revocation of a licence—the 5 year period immediately before the date of the suspension notice under section 28, or a revocation notice under
section 29, is given for that suspension or revocation.’
This means that when the order was ‘made’ the Applicant no longer had the right to hold a weapons licence. I have taken into account the impassioned arguments put forward by the Applicant’s Counsel, which are referred to above, and in substance argue I should not read the DVA and the Act literally, but look behind the inconsistency and the evil which Parliament was trying to remedy.
On one hand this might have some weight, but I must also take into account the fact the Act and the DVA have worked in tandem in this way for some years and the Legislature has done nothing to change the situation.
In Peacock v Crowley[9] an issue arose in regard to an inconsistency between the two acts relevant here, and one of the questions asked was whether that appellant’s weapons licence was revoked by the making of a domestic violence protection order.
[9] (Unrep, District Court Appeal 1573/98, McGill DCJ, 20 May 1998).
In that case, the appellant had claimed to a Magistrate he would suffer financial hardship if an order was made and he lost his weapons licence, which he needed in his employment as a kangaroo shooter. Nonetheless, the Magistrate made the protection order. It was not entirely clear whether the Magistrate had forgotten to make orders allowing the appellant to retain his licence.
His Honour was of the opinion that in fact the Magistrate had intended to preserve the weapons licence, but because it had not been included on the orders, the Act and the DVA had their effects, revoking the licence and ‘that occurred through no fault of the appellant, and in circumstances where he was reasonably misled into thinking that the licence had been preserved, and no doubt continued to act as if he had such a licence thereafter’.[10]
[10] Peacock v Crowley, page 11.
No appeal was lodged and by the time the matter came before His Honour the time period for an appeal had expired. This appeal was concerning the refusal of the Magistrate who later heard an appeal about the issue of the weapons licence being revoked. The effect of the order was to revoke all weapons licences and so when the appellant applied to renew the licence, there was nothing to renew and so the Magistrate made the right decision to dismiss the application.[11]
[11] Peacock v Crowley, page 10.
Relevantly here, His Honour goes on to say:
‘It is also not difficult to imagine circumstances where a domestic violence order would be made in the absence of the respondent spouse, notwithstanding that the respondent spouse had a good defence to it. Indeed it is not clear that a domestic violence order which was made but subsequently set aside on appeal would not bring s.10(6)(b) into operation, because the Weapons Act licence is revoked as soon as the original order is made, and an order (so long as it is made within jurisdiction) is valid until it is set aside on appeal.’[12] (my emphasis)
[12] Peacock v Crowley, page 12.
His Honour then later says that, ‘once the licence has expired, if a domestic violence order is made a weapons licence can not be issued to the respondent spouse for five years because during that period that person is not a fit and proper person to hold a licence … ’.[13]
[13] Peacock v Crowley, page 14.
His Honour expressed his concern about the then state of the legislation and that it may result in injustice. I note later amendments were made to the Act, which could assist to some extent in a repeat of the circumstances in Peacock v Crowley[14].
[14] See at pages 4 and 5 where a discussion about amendments to deal with the criticism in Peacock v Crowley are discussed.
Although the circumstances in Peacock v Crowley are different to the present case, what is clear is that once an order is made, the right to hold a licence evaporates, because the person is deemed not be a fit and proper person to hold a weapons licence. That is a principle raised in Peacock v Crowley and has remained the same for the last twelve years. The words of His Honour from that case are also clear and direct and binding.
I can only conclude the Legislature wished this to remain this way and that if a licence-holder is made subject to a protection order, with which they do not agree, they have a right of appeal to the District Court. What the Applicant must take into consideration is the fact that a successful appeal to the District Court could have resulted in a situation as if ‘the domestic violence order is taken not to have been made’.[15]
[15] Section 34AA of the Act.
This is clear annunciation by the Parliament of a direct power to remove the effects of a protection order, something not stated elsewhere, in either Act. Despite the arguments outlined earlier by the Applicant, the words in the Act must be read literally, due to the findings in Peacock v Crowley and the fact a direct power exists in section 34AA of the Act to remove the effect of a protection order on a successful appeal, that is the avenue which should have unfortunately been pursued by the Applicant.
It is not whether the protection order should have been made, or has been revoked at some stage, it is the issue of the order being ‘made’ in the first place, which activates the exclusion mentioned in section 10B(2)(b).
The Applicant did not to appeal the decision, he fell out of time to do so and so he is left with this outcome, no matter how unfortunate it may be for him. However, as I noted earlier, the other issues outlined by the Respondent in this application raise concerns over whether he is a fit and proper person, in any case.
Conclusion
After carefully considering this matter, I have taken the following points into account, which act in favour of the Applicant (not exhaustive):
§ need for weapons;
§ legitimate use of the weapons;
§ no offences which automatically exclude him;
§ specifically no offences involving weapons’ related facts;
§ the period of time he has held weapons-related licences;
§ other personal circumstances.
I have also taken into account the following matters, which do not act in his favour (to varying degrees and not exhaustive):
§ his earlier failure to report that he was named as a respondent in a domestic violence protection order (which would have excluded him at that stage);
§ the dangerous operation charge for which he pleaded guilty, the nature of the facts and his apparent lack of impulse control;
§ the repeated allegations of domestic violence (although sometimes not pursued and relied on to a lesser extent here);
§ that he has been technically excluded from holding a licence by the ‘making’ of a domestic violence order against him.
I have carefully considered the provisions of the Act and in particular those contained in section 10B. I accept the arguments that Mr Urquhart is not a fit and proper person to hold a weapons licence, due in large part to the making of a domestic violence protection order against him (as I have explained), but even without that situation, the other factors against him point to him not being a fit and proper person to hold a weapons licence and that he is a risk to public safety and it would contrary to public interest for him to hold such a licence. Therefore I refuse this application and make no orders as to costs, for obvious reasons.
2