Aitchison v Queensland Police Service – Weapons licencing [2026] QCATA 54

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Aitchison v Queensland Police Service – Weapons licencing [2026] QCATA 54 PARTIES: TODD ALLAN AITCHISON (applicant/appellant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO: APL037-24 ORIGINATING APPLICATION NO: GAR138-21 MATTER TYPE: Appeals DELIVERED ON: 6 March 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: Appeal (insofar as it was an appeal on a question of law) from the decision of the Tribunal of 5 January 2024 is allowed and the matter is remitted to the Tribunal for reconsideration in accordance with these reasons. Application for leave to appeal is otherwise dismissed. CATCHWORDS: APPEALS – WEAPONS LICENSING – where appellant made an application for a weapons licence – where licence revoked on basis it was not considered to be in the public interest for him to hold a licence – where decision confirmed on review – whether error made in having regard to the appellant’s criminal history which consisted of offences relating to the possession of unregistered weapons but where no conviction was recorded – whether error to consider the facts or circumstances of those offences – whether error in failing to consider or give enough weight to mitigating factors – whether too much weight placed on appellant’s traffic history Penalties and Sentences Act 1992 (Qld) s 4, s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146 -- 1 of 9 -- 2 Weapons Act 1990 (Qld) s 3, s 4, s 10B, s 29, s 142 Weapons Regulation 2016 (Qld) Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634 Commissioner of Police v XPR [2025] QCA 93 Ericson v Queensland Building Services Authority [2013] QCA 391 Ericson v Queensland Building and Construction Commission [2014] QCA 297 McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION [1] Mr Aitchison’s licence to possess firearms under the Weapons Act 1990 (Qld) (‘the Weapons Act’) was revoked on 28 January 2020. The Weapons Licensing Branch of the Queensland Police Service determined that Mr Aitchison was not a fit and proper person to hold the licence. Mr Aitchison applied to QCAT to review the decision. [2] On review, the Tribunal affirmed the decision of the respondent to revoke Mr Aitchison’s weapons licence on the grounds the learned Member was not satisfied he was a ‘fit and proper’ person to hold a licence considering the factors in s 10B of the Act, in particular, the public interest. Mr Aitchison1 seeks to appeal that decision. [3] Leave is not required for an appeal on a matter of law. An appeal on a question of fact or on mixed law and fact may only be made with the leave of the Appeal Tribunal.2 The appellant has not made any submissions addressing the issue of leave. [4] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.3 [5] In considering whether to grant leave, as is customary in the Appeal Tribunal, I will consider each of the grounds of appeal and whether any demonstrate appealable error. 1 For convenience I will refer to Mr Aitchison as the appellant. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(b). 3 Crime and Corruption Commission v Lee [2019] QCATA 38 at [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]. -- 2 of 9 -- 3 Grounds of Appeal [6] The grounds of appeal are as follows:4 Ground One The respondent erred in finding that when an authorised officer is applying pursuant 10B of the Weapons Act 1990 (Qld) (WA) to assess the suitability for a weapons licence application, regard cannot (sic) be had to convictions for offences for which no conviction has been recorded, or the facts or circumstances of those offences. Ground Two The decision-maker failed to consider the mitigating factors put forward on behalf of the Appellant. Ground Three Failed to give the mitigating factors due weight. Ground Four Placed too much emphasis of the Traffic History of the Applicant. Ground One: Offences with no conviction recorded [7] The first ground of appeal is that there was an error of law in considering the appellant’s convictions before the Beaudesert Magistrates Court on 30 September 2021 and the Rockhampton Magistrates Court on 9 September 2022, given the Court of Appeal decision in Commissioner of Police v XPR.5 [8] The respondent conceded that, pursuant to the XPR decision, by considering the appellant’s criminal history where convictions had not been recorded, the Tribunal erred at law in its consideration of s 10B of the Weapons Act. [9] Although the ground of appeal as drafted refers to the respondent’s error, given the appeal is an appeal of the Tribunal’s decision at first instance, what the respondent did is irrelevant. I have taken the appeal ground to be that the Tribunal erred in taking into account the appellant’s criminal history where convictions were not recorded. [10] Given the function of the Appeal Tribunal under s 146 of the QCAT Act (appeal on a question of law), the law that applied at the time the Tribunal made its decision is relevant. This is important to note as the relevant provisions were amended after the Tribunal decision but prior to the appeal. [11] As at the date of the hearing at first instance the Weapons Act relevantly provided as follows. [12] By s 3 of the Weapons Act: (1) The principles underlying the Act are as follows – 4 Applicant’s appeal submissions filed on 7 August 2025. 5 [2025] QCA 93. -- 3 of 9 -- 4 (a) weapon possession and use are subordinate to the need to ensure public and individual safety; (b) 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. (2) The object of this Act is to prevent the misuse of weapons. [13] By s 4 of the Weapons Act, its objects are achieved, relevantly, by: (a) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and (b) providing strict requirements that must be satisfied for— (i) licences authorising possession of firearms; and (ii) the acquisition and sale of firearms; and (c) ensuring that firearms are stored and carried in a safe and secure way. [14] Section 29 of the Weapons Act relevantly provides: (1) An authorised officer may, by a revocation notice given to a licensee, revoke the licensee’s licence if the authorised officer is satisfied of any of the following things— ... (d) the licensee is no longer a fit and proper person to hold a licence; Note— Section 10B states matters for consideration. [15] Section 10B of the Weapons Act relevantly provides: (1) In deciding or considering, for the …revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things— (a) the mental and physical fitness of the person; and (b) whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and (c) whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and -- 4 of 9 -- 5 (ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates— (i) the person is a risk to public safety; or (ii) that authorising the person to possess a weapon would be contrary to the public interest; and (d) the public interest. (2) However, for the …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— … (iii) an offence involving the use, carriage, discharge or possession of a weapon; … (5) In this section— relevant period means— … (b) for the …revocation of a licence—the 5 year period immediately before the date of … a revocation notice under section 29, …given for that …revocation. [16] The appellant had a string of traffic offences and, relevantly for the purposes of this ground, two weapons offences in respect of which no conviction had been recorded. [17] In relation to the two weapons offences, the Member reasoned as follows: (a) Section 50(1) provides that is an offence to possess an unregistered weapon. (b) Pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld) (‘PSA’) a conviction without recording the conviction is taken not to be a conviction for any purpose. (c) Neither the PSA nor the Weapons Act provide that a conviction without recording is taken to be a conviction for present purposes. (d) The offences could not therefore be considered under s 10B(2)(a)(ii). -- 5 of 9 -- 6 (e) Accordingly, the decision becomes an exercise of discretion, applying s 10B(1) factors. (f) In considering the public interest, the seriousness of the offences involving the possession of the unregistered weapons, namely a double barrel shotgun and three knives that could be used while the knife was held in one hand, was relevant to a consideration of whether Mr Aitchison poses “virtually no risk” to public safety. The circumstances did not convince her that Mr Aitchison was possessed of a requisite knowledge of the duties and responsibilities that befell him as a firearms licence holder. [18] After the learned Member’s decision, the Court of Appeal delivered its decision in Commissioner of Police v XPR.6 The Court held that the ‘clear terms’ of s 12(3) of the PSA and the legislative intent of that provision meant there was no conviction where one was not recorded and that it was impermissible to rely on it. Further, that even if only the facts and circumstances of the offending are relied upon, that this too would be contrary to the clear words and intent of s 12(3). This is because the unrecorded conviction is taken not to be a conviction for any purpose. As the Court of Appeal held: The effect of s 12(3)(a) of the PSA was that the conviction is taken not to be a finding of guilt, or the acceptance of a plea of guilty by a court. Whilst s 12(3) may create a statutory fiction, it was the intention of the legislature that an offender have a right to deny ever having been convicted of the offence [Second Reading Speech CLROA p 4111.].7 [19] The learned Member, by considering the circumstances of offences where convictions were not recorded, has erred in law in her consideration of s 10B of the Act. Leave is not required for an error of this nature. Grounds Two and Three: mitigating factors [20] The appellant claims the learned Member did not consider his mitigating factors (ground two) or did not give them sufficient weight (ground three). I will deal with these grounds together. [21] The appellant relies on the following by way of mitigation: (a) that it would be punishing him twice to revoke his weapons licence given he had already received a sentence for the criminal matters; (b) had the traffic offences been criminal matters the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) would have applied; (c) the appellant had invested in a firearms business and would suffer financial loss if his licence was revoked; (d) there were no allegations that the appellant had breached a condition of his weapons licence; 6 [2025] QCA 93. 7 Ibid at [27]. -- 6 of 9 -- 7 (e) the firearm the subject of one of the criminal charges was owned by his grandfather and had no nexus to criminal use. [22] Factors (a) and (e) relate to the criminal offences which, for the reasons above, are not relevant to the review. It follows that these factors cannot be relied upon in mitigation. [23] By factor (b) the appellant submits, in effect, that the traffic offences committed in 2004 and 2008 were historical only and should not have been given the weight they were given. The respondent disagrees with this statement and submits that the history of a criminal offender is relevant to determine the character of an offender: Veen v The Queen (No. 2) (1988) 164 CLR 465 [14] and [17]. Further, that any previous convictions of an offender may be considered by a court in determining their character, referring to s 11(1)(a) of the PSA. [24] The learned Member carefully summarised the appellant’s traffic history from 2000 to 2022. While the offences in 2004 and 2008 were mentioned, they were not the focus. The Member went through the appellant’s lengthy traffic history to illustrate not only that it was significant but that, despite receiving a ‘show cause’ letter from weapons licensing in 2015 due to that history, he continued to offend. In that context, there was no error in failing to regard the age of some of the offending as a mitigating factor. [25] Factor (c) was considered by the learned Member. The Member said in relation to it: Mr Aitchison made much of the impact upon of him (sic) the revocation of his licence in terms of its impact on his ability to work in the gun shop in which he is heavily invested. The QPS correctly note in reply that Mr Aitchison’s firearms licence is not an occupational one.8 [26] The Member was aware of the appellant’s argument and dealt with it appropriately. Being unable to work in the gun shop or his business associated with shooting is not a valid mitigating factor when his weapons licence was for recreational purposes (and not occupational purposes) in any event. [27] Factor (d) was taken into account by the Member. The Member at paragraph [29] of the Reasons extracts part of the appellant’s affidavit sworn 21 May 2021 in which he refers to the nature of his offending and states that there are no allegations or charges involving violence or threats to use the weapon on someone else. The Member concludes that he has shown a careless attitude towards weapons, including the unlawful possession and storage of same. In arriving at that conclusion, the Member had regard to the facts and circumstances surrounding the convictions on separate occasions for unlawful possession of a weapon (category A, B or M). [28] The appellant gives no further detail relating to this submission, merely stating that ‘there were no allegations that he had in anyway transgressed any of the conditions of his licence.’ It is not clear whether that submission was made to the Member. In any event, compliance with the conditions of the weapons licence is hardly a mitigating factor in circumstances where all licence holders are expected as a minimum to do so. 8 Reasons, [55]. -- 7 of 9 -- 8 [29] The Member at [55] to [57] of the Reasons clearly engaged in a balancing exercise between the mitigating circumstances and the risk to public safety in arriving at her conclusion. [30] The appellant has not demonstrated any error in the weight given to the appellant’s alleged mitigating factors. Leave in respect of grounds two and three is refused. Ground Four: traffic history [31] The appellant claims the Member erred by placing too much weight on his traffic history. Further, that while it is relevant, there is no nexus between public safety in the context of the Act and traffic offending. In any event, only the traffic offences from 17 February 2022 should be considered, it is submitted, because until then he was considered a ‘fit and proper person’. [32] The Member referred to the appellant’s significant traffic history and to authorities in the Tribunal which have drawn a connection between lengthy traffic histories showing a flagrant disregard for the law, and a risk to public safety in the context of weapons licensing.9 The member correctly referred in this respect to the principles set out in McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491 and Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634. [33] At [41] to [42], the Tribunal set out the evidence relied upon to determine that the appellant’s attitude and offending was demonstrative of a person that lacked insight into the risk his traffic offending posed, and that that could extend to his conduct as a holder of a firearms licence. [34] The Member found that the appellant had shown by his traffic history a reckless disregard for traffic laws, particularly those pertaining to speed limits and a lack of insight into the risk posed by his traffic offending behaviours. The Member concluded that his risk of reoffending was considerable and that it was ‘fair to imply that such non-complying conduct could extend to his conduct as a holder of a firearms licence’.10 [35] The Member has not erred in adopting this approach or in drawing the nexus she did between the appellant’s disregard for relevant traffic laws and regulations and a risk that the appellant will show the same disregard for laws relating to weapons use. Leave to appeal this ground is refused. Conclusion [36] The appeal is allowed on the basis of the error of law demonstrated by ground one. Leave to appeal in respect of the other grounds is refused. [37] In deciding an appeal on a question of a question of law only, the Appeal Tribunal’s powers are those set out in s 146 of the QCAT Act. Under that section, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its 9 Reasons at [36] relying on McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491; Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 634 at [10]. 10 Reasons, [42]. -- 8 of 9 -- 9 own decision or set aside the decision and return the matter to the tribunal (either as originally constituted or differently constituted) for reconsideration.11 The Court of Appeal has made clear that the Appeal Tribunal, in proceeding under s 146, must not engage in a rehearing of the matter, whether on the evidence below or fresh evidence.12 [38] Resolution of the legal question in this matter, that is, that the circumstances of offences where convictions are not recorded cannot be considered in applying s 10B of the Weapons Act, could not determine the outcome of this matter. Accordingly, the appropriate course is for the proceeding to be sent back to the Tribunal Member for reconsideration.13 [39] The appeal is allowed and the matter remitted to the Tribunal Member for reconsideration in accordance with these reasons. 11 QCAT Act, s 146. 12 Ericson v Queensland Building Services Authority [2013] QCA 391, [13], [25]; Ericson v Queensland Building and Construction Commission [2014] QCA 297, [13]–[16]. 13 Ericson v Queensland Building and Construction Commission [2014] QCA 297, [3], [10], [13] and [16]. -- 9 of 9 --