Commissioner of Police v XPR [2025] QCA 93

SUPREME COURT OF QUEENSLAND CITATION: Commissioner of Police v XPR [2025] QCA 93 PARTIES: COMMISSIONER OF POLICE (appellant) v XPR (respondent) FILE NO/S: Appeal No 439 of 2025 QCAT No 493 of 2022 DIVISION: Court of Appeal PROCEEDING: Appeal Queensland Civil and Administrative Tribunal Act ORIGINATING COURT: Queensland Civil and Administrative Tribunal – [2025] QCAT 1 (Mellifont J and Member Olding) DELIVERED ON: 3 June 2025 DELIVERED AT: Brisbane HEARING DATE: 19 May 2025 JUDGES: Mullins P, Boddice JA and Callaghan J ORDER: The appeal is dismissed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – GENERALLY – where the respondent made an application for a weapons licence – where an authorised officer within Weapons Licensing at Queensland Police Service issued a notice of rejection of the application on the basis that it was not considered to be in the public interest – where the authorised officer had regard to the respondent’s criminal history and determined that the respondent was not a fit and proper person to be issued a weapons licence – where the respondent filed an application to review that decision in the Queensland Civil and Administrative Tribunal (QCAT) – where QCAT ordered that the decision be set aside and be substituted with a decision granting the respondent’s application for a weapons licence – where the applicant appeals the QCAT decision – whether QCAT erred in finding that when an authorised officer is applying s 10B of the Weapons Act 1990, regard cannot be had to convictions for offences for which no conviction has been recorded, or the facts or circumstances of those offences Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld), s 4, s 5 -- 1 of 11 -- 2 Penalties and Sentences Act 1992 (Qld), s 12(3) Weapons Act 1990 (Qld), s 10B COUNSEL: M D Nicolson for the appellant The respondent appeared on his own behalf SOLICITORS: QPS Legal Unit for the appellant The respondent appeared on his own behalf [1] MULLINS P: I agree with Boddice JA. [2] BODDICE JA: On 21 September 2021, the respondent made an application in the approved form for a weapons licence. [3] On 5 October 2022, an authorised officer within Weapons Licensing at Queensland Police Service (QPS) issued a notice of rejection of the application. The reason for rejection was that it was “not considered to be in the public interest that [the respondent] hold a licence authorising the possession of weapons”. [4] The accompanying information notice recorded that the respondent had, on 16 December 2021, attended court to answer charges under the Drugs Misuse Act in respect of which he had been found guilty, convicted and fined with the conviction not recorded. In considering whether to grant the respondent a firearms licence, the authorised officer had determined that, having regard to the circumstances “including your criminal history in relation to your previous offending I could not be satisfied that you are a fit and proper person to be issued with a licence”. [5] On 16 November 2022, the respondent filed an application to review that decision in the Queensland Civil and Administrative Tribunal (QCAT). [6] On 6 January 2025, QCAT ordered that the decision be set aside and be substituted with a decision granting the respondent’s application for a weapons licence. [7] The applicant appeals that decision. The sole ground of appeal is that QCAT erred in finding that when an authorised officer is applying s 10B of the Weapons Act 1990 (Qld) (WA) to assess the suitability for a weapons licence application, regard cannot be had to convictions for offences for which no conviction has been recorded, or the facts or circumstances of those offences. Relevant legislative provisions [8] The WA establishes an integrated licensing and registration scheme for all firearms. Under that scheme, each person who wishes to possess a firearm under a licence must demonstrate a genuine reason for possessing the firearm. A licence may be issued, renewed, endorsed, or altered only by an authorised officer. [9] Section 10(2) of the WA provides that a licence may be issued to an individual, only if the person satisfies specified requirements. Relevantly, one of those requirements is that the person is a fit and proper person to hold a licence. [10] Section 10B sets out the matters that an authorised officer must consider “among other things” in deciding or considering whether the person is a fit and proper person to hold a licence. Section 10B provides:– -- 2 of 11 -- 3 “Fit and proper person—licensees 10B Fit and proper person—licensees (1) In deciding or considering, for the issue, renewal, suspension or 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 (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 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; (ii) an offence involving the use or threatened use of violence; (iii) an offence involving the use, carriage, discharge or possession of a weapon; or (b) a domestic violence order, other than a temporary protection order, has been made against the person. (3) Also, for the issue, renewal, suspension or revocation of a licence, a licensed dealer is not a fit and proper person to hold a licence unless each associate of the person is a fit and proper person to be an associate of a licensed dealer. (4) A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary -- 3 of 11 -- 4 protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon. (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.” [11] Section 14 of the WA provides: “Inquiries into application 14 Inquiries into application (1) Before the application is decided, an officer in charge of police or authorised officer with whom an application for a licence is lodged may— (a) make an inquiry or investigation about the applicant or the application; and (b) require the applicant to give the officer further information the officer reasonably needs to be satisfied about the applicant’s identity or physical or mental health including— (i) in relation to the applicant’s physical health—a report from a doctor about the applicant’s physical health; and (ii) in relation to the applicant’s mental health— a report from a doctor or psychologist about the applicant’s mental health; and (c) inspect the secure storage facilities for the weapon or category of weapon possession of which is to be authorised by the licence; and (d) supply, for this section, information or a document relevant to the applicant’s identity to an officer or member of a State or Commonwealth police service; and (e) require the applicant to display an adequate knowledge of the safety practices for the use, storage and maintenance of the weapon or category of weapons the possession of which is to be authorised under the licence; and -- 4 of 11 -- 5 (f) make a report about the applicant or the application; and (g) make the recommendation about the application the officer thinks appropriate. (2) If an authorised officer suspects, on reasonable grounds, that the applicant’s stated identity is false, the authorised officer may require the applicant to provide an identifying particular to verify the applicant’s identity. (3) The applicant is taken to have withdrawn the application if, within a stated reasonable time, the applicant— (a) refuses to provide the information reasonably required under subsection (1)(b); or (b) refuses to allow the inspection under subsection (1)(c); or (c) fails to comply with a requirement under subsection (2). (4) If information about the applicant’s mental health given under subsection (1)(b) is provided in a doctor’s or psychologist’s report, an authorised officer may— (a) make information in the officer’s possession available to the doctor or psychologist; and (b) ask the doctor or psychologist to provide a further report. (5) The authorised officer may make the information available only if the officer considers, on reasonable grounds— (a) the doctor or psychologist was not aware of the information; and (b) the information may influence the doctor’s or psychologist’s opinion about the applicant’s mental health. (6) The authorised officer must also advise the applicant of the information being supplied to the doctor or psychologist. (7) The authorised officer may make the information available under subsection (4) despite the provisions of any other Act. (8) Unless the authorised officer considers that it is currently required for the investigation of an offence, the authorised officer must, after deciding the application— -- 5 of 11 -- 6 (a) return to the applicant any identifying particular obtained in the course of inquiries into the application; and (b) destroy any record or copy of the identifying particular. (9) Information required to be supplied under this section may be used only to decide the application or to investigate or prosecute an offence and must not be disclosed for any other purpose. (10) In this section— applicant includes, for a body, an individual nominated by the body for endorsement on the licence as the body’s representative in the conduct of its business or affairs.” [12] The Penalties and Sentences Act 1992 (Qld) (PSA) provides for the recording or non- recording of a conviction. Relevantly, a discretion may arise to record or not record a conviction under certain sentencing options, such as fines, probation orders and community service orders. No discretion arises in the case of imprisonment. [13] Section 12 of the PSA sets out the consequences of the non-recording of the conviction. Relevantly, it provides:– “(3) Except as otherwise expressly provided by this or another Act— (a) a conviction without recording the conviction is taken not to be a conviction for any purpose; and (b) the conviction must not be entered in any records except— (i) in the records of the court before which the offender was convicted; and (ii) in the offender’s criminal history but only for the purposes of subsection (4)(b). (3A) Despite subsection (3)(b), the conviction may be entered in a record kept by a department, a prosecuting authority or the offender’s legal representative if it is necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative. (4) A conviction without the recording of a conviction— (a) does not stop a court from making any other order that it may make under this or another Act because of the conviction; and (b) has the same result as if a conviction had been recorded for the purposes of— (i) appeals against sentence; and (ii) proceedings for variation or contravention of sentence; and -- 6 of 11 -- 7 (iii) proceedings against the offender for a subsequent offence; and (iv) subsequent proceedings against the offender for the same offence. (5) If the offender is convicted of a subsequent offence, the court sentencing the offender may disregard a conviction that was ordered not to be recorded but which, under subsection (3)(b)(ii), is entered in the offender’s criminal history.” [14] The Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (CLROA) provides periods after which certain convictions need not be disclosed by a person. Sections 4 and 5 provide limitation on the non-disclosure of convictions or charges. [15] Section 4 provides: “Construction of Act (1) This Act shall be construed so as not to prejudice any provision of law or rule of legal practice that requires, or is to be construed to require, disclosure of the criminal history of any person. (2) This Act shall be construed so as not to relieve any person from a responsibility that rests on the person to disclose his or her criminal history in connection with seeking admission to or offering himself or herself for selection for any profession, occupation or calling prescribed by regulation. (3) This Act shall not be construed to prohibit or hinder the provision by any person of particulars of the criminal history of any person to a Crown prosecutor, a police prosecutor or other person prosecuting upon a charge of an offence with a view to those particulars being disclosed to the court in the event of the defendant being convicted.” [16] Section 5 provides: “Matter excluded from criminal history (1) It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person. (2) A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person’s criminal history or of the criminal history of another person or a charge made against the person or another person. (3) Subsection (2) does not apply where the requirement or request to disclose a conviction or charge therein referred to is made— (a) for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or -- 7 of 11 -- 8 (b) in criminal or civil proceedings before a court if the fact of the conviction or charge is relevant to an issue in the proceedings or the court has granted permission for the requisition or request to be made.” QCAT decision [17] QCAT recorded that the information notice stated: “Checks conducted by this office in relation to your criminal history have revealed the following: I note that on the 16th December, 2021, you attended the Cairns Magistrates Court to answer to Drugs Misuse Act charges, namely Producing Dangerous Drugs and Possession Dangerous Drugs. I note that you were found guilty, convicted and fined with the conviction not recorded. I considered R v Beissel [1996] QCA 488; (1996) 89 A Crim R 210 Principle applied: A person who has been convicted of a criminal offence has a criminal conviction, whether or not it is formally recorded, and that being so, the court should not in my opinion lend its aid to attempts to conceal that fact. It is no part of this court’s function to minimize the seriousness of these offences with a view to influencing a government instrumentality to disregard or overlook the offences. I also considered the concept of fit and proper person and the public interest. Under Section 10B(2) of the Act, it is an automatic disqualification for five years if an applicant has been convicted of a Drugs Misuse Act offence with the conviction recorded. Section 10B(1) of the Act states: In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a license, an authorised officer must consider, among other things — (d) the public interest. You are advised that the conviction of offences, whether recorded or not, relating to charges for traffic or criminal is a consideration in deciding whether you are a fit and proper person to hold a weapons licence. Having regard to the circumstances including your criminal history in relation to your previous offending I could not be satisfied that you are a fit and proper person to be issued with a licence. I considered that it was not in the public interest or in accordance with the principles and object of the Act to issue a licence.” [18] QCAT recorded that at the hearing the applicant confirmed that the sole reason for the respondent not being a fit and proper person to hold a licence, was because of the -- 8 of 11 -- 9 2021 drug offences referred to in that notice. Further, the applicant did not rely on s 10B(2) of the WA. [19] QCAT found that by reason of s 12(3) of the PSA, the facts and circumstances of an offence in respect of which a court exercises jurisdiction not to record a conviction, could not be taken into account, in applying s 10B of the WA. The legislative regime of the PSA is intended to protect an individual from the stigma attached to a conviction where a sentencing judge or magistrate decided no conviction should be recorded, apart from specific exemptions such as court records, later criminal proceedings and the legitimate performance of the functions of specified authorities. If Parliament intended that there be further exceptions, it could have created those exceptions either in the PSA, or in the WA, but had not done so. [20] QCAT further found that the reference in s 10B of WA, to the authorised officer being able to take into account “other things”, was not sufficient to operate as a further exception to the operation of s 12(3) of the PSA. It did not do so expressly or by necessary implication. To hold otherwise would be to impermissibly traverse the prohibition which flows from s 12(3) of the PSA. [21] QCAT held that when applying s 10B of the WA, regard could not be had to convictions for offences for which no conviction had been recorded, or to the facts and circumstances of those offences. [22] QCAT considered that the provisions of the CLROA supported that conclusion. Section 5(2) specifically provides that a person should not be required or asked to disclose, and if so required or asked, shall not be obliged to disclose for any purposes, a conviction that is not recorded. That provision was a further protection for the rehabilitative intent of s 12(3) of the PSA. Whilst it was subject to express prohibitions under s 9A of the CLROA, licensing under the WA was not one of them. Further, to allow an authorised officer to take into account a not recorded conviction, would be inconsistent with the prohibition in s 9(1) of the CLROA in respect of spent convictions. Consideration [23] The applicant submits that QCAT erred in its interpretation of s 10B of the WA. The approved form for the WA seeks from an applicant various pieces of information, including information as to whether or not they have been charged with an offence. That information was properly sought by the authorised officer, who is authorised to conduct an inquiry pursuant to s 14(1)(a) of the WA. As such, the facts and circumstances relating to a charge could be considered by an authorised officer in determining whether it would be contrary to the public interest for an applicant to possess a weapons licence, pursuant to s 10B(1)(d) of the WA. [24] That submission cannot be accepted for two reasons. [25] First, the information notice provided by the authorised officer to the applicant, records that it was the conviction of the offences which was the consideration relied upon by the authorised officer, in deciding that the applicant was not a fit and proper person to hold a weapons licence. Reliance upon the conviction was impermissible. The clear terms of s 12(3) of the PSA and the legislative intent of that provision meant there was no conviction. -- 9 of 11 -- 10 [26] Second, even if the authorised officer had sought to rely on the facts and circumstances of the respondent having produced dangerous drugs and possessed dangerous drugs, absent the fact of conviction, the authorised officer would have acted contrary to the clear words and intent of s 12(3) of the PSA. [27] As QCAT observed, the respondent’s conviction is taken not to be a conviction for any purpose. 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.1 [28] In QCAT, the applicant did not seek to rely on s 5(3) of the CLROA. However, at the hearing of the appeal the applicant contended that the authorised officer was entitled to receive information about the applicant’s conviction, even though it was not part of his criminal history, as the requirement or request to disclose it had been made for the purposes of an inquiry being conducted by the authorised officer, pursuant to the authority conferred by s 14 of the WA. [29] Section 5(3) of the CLROA was inserted into the Act by amendments introduced under the Commissions of Inquiry Act and Other Acts Amendment Act 1988. The explanatory notes provide that the amendment to s 5 was for the purposes of removing the protection afforded by s 5, in respect of orders or requests to disclose made for the purposes of a statutory inquiry and in relation to civil or criminal proceedings where the conviction or charge is relevant. [30] A consideration of the terms of s 5(3), supports a conclusion that its operation is limited to circumstances where a requirement or request to disclose the conviction or charge is relevant to and for the purposes of the inquiry being conducted, pursuant to the authority conferred by or under an Act. The inquiry as to the conviction and its circumstances is not relevant to a determination of the public interest by an authorised officer who is considering whether an applicant for a weapons licence is a fit and proper person to hold the licence. [31] The expression “make an inquiry or investigation” in s 14(1)(a) of the WA provides for the authorised officer to ask a question or seek further information about the applicant or the application which is ancillary to the purpose of deciding the application. In other words, the focus of the provision is on deciding the application and not on the inquiry or the investigation. Section 14 specifies information which may be sought, namely, information the officer reasonably needs to be satisfied about the applicant’s identity or physical or mental health, as well as inspecting relevant storage facilities and as to adequate knowledge as to safe practices. Nothing in the terms of s 14 supports a conclusion that a requirement that an applicant disclose a conviction, which is not a conviction for any purposes, pursuant to s 12(3) of the PSA, is for the purpose of an inquiry to consider the application. [32] In those circumstances, s 5(3) has no application and under s 5(2) an applicant for a weapons licence shall not be required or asked to disclose, and if so required or asked, shall not be obliged to disclose for any purpose, a conviction that is not part of the person’s criminal history, or a charge made against the person. [33] That conclusion is consistent with the legislative intent of the WA, which is that it is only specified convictions which are relevant to the determination of whether an 1 Second Reading Speech CLROA p 4111. -- 10 of 11 -- 11 applicant is a fit and proper person to hold a weapons licence. In the event that the applicant has one of those specified convictions, there is a mandatory determination that the applicant is not a fit and proper person, for a specified period. Conclusion [34] There was no error in QCAT’s finding that when an authorised officer is applying s 10B of the WA to assess the suitability for a weapons licence application, regard cannot be had to convictions for offences for which no conviction has been recorded, or to the facts or circumstances of those offences. Orders [35] I would order: 1. The appeal be dismissed. [36] CALLAGHAN J: I agree with Boddice JA. [37] If his Honour’s conclusion about the legislative intent of the Weapons Act 1990 (Qld) does not represent Parliament’s view then its remedy is straightforward. There was no error made by QCAT and the appeal should be dismissed. -- 11 of 11 --