Williams v Queensland Police Service, Weapons Licensing Branch

[2014] QCAT 363

CITATION: Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363  

PARTIES:	John Henry Williams (Applicant)
v
Queensland Police Service, Weapons Licensing Branch (Respondent)

APPLICATION NUMBER: GAR360-13

MATTER TYPE: General administrative review matters

HEARING DATE: 13 June 2014

HEARD AT: Brisbane

DECISION OF: Dr Cullen, Member

DELIVERED ON: 28 July 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The revocation notice issued to the Applicant on 30 September 2013 is set aside.

2.    The Tribunal finds that the Applicant is a fit and proper person to hold a Firearms licence.

CATCHWORDS:

WEAPONSLICENSING – consideration of term “offence relating to misuse of drugs” – traffic offence does not fall within classification of definition – consideration of whether Applicant is a ‘fit and proper person’ – decision that Applicant’s license should not have been revoked

Drugs Misuse Act 1986 (Qld), long title
Weapons Act 1990 (Qld), s 10B

Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 364

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Julie Gilfoyle, Howden Saggers Lawyers

RESPONDENT: Acting Senior Sargeant Bradford, Queensland Police Service, Weapons Licensing Branch

REASONS FOR DECISION

1. There can be no doubt that the Queensland Police Service (‘QPS’) performs a vital, difficult, and sometimes dangerous job in maintaining our community safety. One aspect of this job relates to the service that QPS performs in revoking weapons licences where licence holders pose a risk to public safety and order.

2. The applicant, Mr John Henry Williams, held a weapons licence until it was revoked by the QPS following a determination that Mr Williams was no longer a ‘fit and proper’ person in relation to the Weapons Act 1990 (Qld) (‘Weapons Act’). Mr Williams seeks review by the Tribunal of the revocation decision dated 30 September 2013.

3. QPS alleges that Mr William’s weapons licence should not be renewed as they claim he has been convicted of an offence relating to the misuse of drugs. As such, QPS says that the provisions contained in s 10B(2)(a)(i) of the Weapons Act mandate the revocation of his weapons licence. That section provides as follows:

   (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—

   (a)the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—

   (i)an offence relating to the misuse of drugs

4. Whilst the Tribunal agrees with QPS, and Mr Williams, that s 10B(2)(a)(i) is a mandatory provision that requires revocation in the event of an offence relating to the misuse of drugs, there is a dispute about whether Mr Williams’ conduct is, in fact, an offence that relates to the misuse of drugs. This is because the offence that led to the revocation of Mr Williams’ licence arose out of a traffic incident, and not out of any drug-related charges.

Mr Williams was charged with traffic offences

1. On 14 November 2012, Mr Williams was issued with several charges under the Transport Operations (Road Use Management) Act 1995 (Qld) (‘Transport Operations Act’). These charges resulted in the following penalties:

   1.Driving without due care and attention or drive without reasonable consideration for other persons using road or place, 83 Transport Operations (Road Use Management) Act 1995 (Qld).

   ·This charge was struck out by Magistrate Kilmartin on 20 September 2013.[1]

   2.Offence of driving while relevant drug is present in blood or saliva, s 79(2AA)(A) Transport Operations (Road Use Management) Act 1995 (Qld).

   3.Wearing of seatbelts by drivers, s 264(1) & (2) Transport Operations (Road Use Management) Act 1995 (Qld).

   [1]Verdict and Judgment Record Annexure to the Affidavit of John Henry Williams sworn 13 May 2014.

2. Mr Williams pleaded guilty to charges 2 and 3, and received a penalty consisting of a $500.00 fine, together with disqualification from holding a driver’s licence for a period of one month.[2]

   [2]Ibid.

3. An offence under the Transport Operations Act cannot be ‘an offence relating to the misuse of drugs’ as defined by the Weapons Act.

4. In relation to charge 2, the blood analysis performed on the morning of the traffic incident revealed an amount of 0.001 mg/kg of tetrahydrocannabinol (cannabis) in Mr Williams’ blood. At the hearing, significant attention given to the manner by which the cannabis entered Mr Williams’ bloodstream – Mr Williams’ maintaining a “President Clinton” defence that it was passive smoke ingestion whilst he was a party-attendee; and the QPS casting doubt upon his story. The Tribunal does not need, nor should it, resolve this particular dispute of fact. The point is that Mr Williams’ was not charged pursuant to the Drugs Misuse Act 1986 (Qld).

5. The long-title to the Drugs Misuse Act is instructive as to what is meant by the term ‘an offence relating to the misuse of drugs’. The long-title reads as follows:

   An Act to consolidate and amend the law relating to the misuse of drugs and to make further provision for the prevention of the misuse of drugs and for other purposes.

6. This suggests that, as used in the Weapons Act, the term ‘an offence relating to the misuse of drugs’ can only mean an offence that falls within the Drugs Misuse Act, particularly given the intent of the Drugs Misuse Act to ‘consolidate the law’ in this respect. There is no other definition of ‘an offence relating to the misuse of drugs’ contained within the Weapons Act. The simple, obvious conclusion is that an offence under the Transport Operations Act cannot be transformed, as QPS submits, into a drugs misuse offence. The offence that Mr Williams has pleaded guilty to might be described as ‘an office relating to the driving of a motor vehicle’. The Tribunal finds that the mandatory revocation provisions contained in s 10B(2)(a)(i) of the Weapons Act do not apply in Mr Williams’ circumstances.

Is Mr Williams a “fit and proper” person to hold a Weapons licence?

1. The Tribunal must further consider s 10B(1)(d) of the Weapons Act and decide whether Mr Williams is a ‘fit and proper’ person as a matter of public interest. The QPS submits that, based upon his criminal and traffic history, that he is not. QPS cites a number of previous decisions in relation to the fit and proper test, however, none of them are instructive as the factual circumstances therein are not sufficiently similar.

2. The most persuasive authority cited by QPS in support of its argument in Bannan v Queensland Police Service Weapons Licensing Branch,[3] wherein the Tribunal said:

   Where the Applicant’s ongoing traffic record and criminal history are indicative of a continuity of irresponsible and antisocial conduct it is fair to imply that such conduct could extend to his conduct as a holder of a firearms licence.[4]

   [3][2010] QCAT 364.

   [4]Ibid at [10].

3. In the Tribunal’s view, Mr Williams’ ‘Queensland Person History’ falls short of a indicating a continuous pattern of irresponsible and/or antisocial conduct. He is 48 years old, and whilst he has had three entries for driving under the influence of alcohol, the most recent was in 2005, for a blood alcohol concentration level of .060%, and he was convicted and fined $200.00. I do not propose to revisit his entire history in this decision, save to say that it has been considered in its totality. It would be fair to characterise it as unremarkable, dating back to his youth, and primarily relating to traffic matters.

4. I will discuss the charge dated 5 March 2013, as it is highly relevant in my view. Mr Williams was walking through a school grounds, intoxicated, on his way home from the Norman Hotel. He was stopped, and questioned by police in relation to a utility knife that he carries on his person. Mr Williams pleaded guilty to this charge, and was fined $50.00.

5. I accept Mr Williams’ explanation that he keeps this knife with him for work purposes. Rather than contesting the charge on the basis that he had a reasonable excuse for having the knife on him, he pleaded guilty and was fined $50.00. Although the cross-examination of Mr Williams’ indicated that he did not need the knife for work purposes on his route home from the Norman Hotel, it also strikes me as sensible for Mr Williams to have accepted the charge, and avoided the significant legal fees he would have incurred in order to contest the matter. Further, I note that there was no violence of any sort associated with this charge.

Mr Williams is a fit and proper person

1. Mr Williams has not been charged with any breaches of the weapons licences he has held.

2. He is a community minded, employed father-of-two, who is married with a stay-at-home wife. One of his children has cerebral palsy, which would presumably require provision of extra time and support from both Mr and Mrs Williams.

3. Mr Williams has been a foster parent, with his wife, for many children. This has required him to hold a Queensland Blue Card, including in the recent past. I have considerable difficulty accepting a line of argument that one could be deemed safe to work with children, but not fit and proper to hold a weapons license.

Decision

1. There is nothing in Mr Williams’ ‘Queensland Person History’ that is suggestive of any violence, or any pattern of overall lack of regard for the law. For these reasons, the Tribunal considers that Mr Williams’ Queensland Weapons Licence should be reinstated.