Axford v Queensland Police Service – Weapons Licensing [2024] QCAT 593

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Axford v Queensland Police Service – Weapons Licensing [2024] QCAT 593 PARTIES: ISAAC DAVID AXFORD (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR419-22 MATTER TYPE: General administrative review matters DELIVERED ON: 19 December 2024 HEARING DATE: 2 December 2024 HEARD AT: Brisbane DECISION OF: Acting Member Jensen ORDERS: Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision made by the respondent on 7 September 2022 to revoke the applicant’s firearms licence is confirmed. CATCHWORDS FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to revoke firearms licence under Weapons Act 1990 (Qld) – where applicant convicted of unlawful stalking after summary hearing – where a restraining order made under the Criminal Code Act 1899 (Qld) – where no conviction recorded for the stalking conviction – where applicant had no other criminal or traffic history – whether the applicant is a fit and proper person to hold a firearms licence Criminal Code Act 1899 (Qld), sch 1, s 359E, s 359F Human Rights Act 2019 (Qld), s 3, s 4, s 13, s 24 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 21(1), s 24, s 28(3) Weapons Act 1990 (Qld), s 3, s 10B, s 29(1)(d), s 142 Avenell v Queensland Police Service Weapons Licensing Branch [2010] QCAT 496 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 -- 1 of 16 -- 2 APPEARANCES & REPRESENTATION: Applicant: Respondent: Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] 1 VR 51 Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378 Phillips v Woolcock [2002] QDC 35 Richmond & QPS [2016] QCAT 243 Stower v Smart [2007] QDC 4 Trezise v Queensland Police Service – Weapons Licensing [2022] QCAT Willingham v Queensland Police Service – Weapons Licensing [2024] QCAT 361 Mr Neuendorf Acting Sergeant Bauer REASONS FOR DECISION The issues [1] The respondent gave the applicant a revocation notice dated 7 September 2022 stating that: 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. (the “decision”) [2] The authorised officer made the decision under the Weapons Act 1990 (Qld), (the ‘Weapons Act’). [3] The applicant subsequently filed an application in this tribunal to review the decision, and seeking an order that the revocation of the weapons licence be vacated and the licence reinstated. [4] The respondent opposes the application. The basis for reviewing the decision [5] By virtue of s 142(1)(a) and s 142(2) of the Weapons Act, the applicant may apply to the tribunal for a review of the decision. Review jurisdiction is conferred on the tribunal under s 9(1) and s 9(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’). [6] The purpose of a review of a reviewable decision is to produce the correct and preferable decision.1 The tribunal must hear and decide the review by way of a fresh 1 QCAT Act s 20(1). -- 2 of 16 -- 3 hearing on the merits.2 The respondent is required to use its best endeavours to help the tribunal so that it can make its decision on the review.3 [7] Pursuant to s 24(1) of the QCAT Act, in a proceeding for a review of a reviewable decision, the tribunal may: (a) Confirm or amend the decision; or (b) Set aside the decision and substitute its own decision; or (c) Set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate. [8] Pursuant to s 28(3) of the QCAT Act, in conducting a proceeding, the tribunal is given wide discretion to consider all pertinent material; it is not bound by the rules of evidence and may inform itself in any way it considers appropriate. The Weapons Act provisions [9] The principles and object of the Weapons Act are set out in s 3 which provides: (1) The principles underlying this Act are as follows— (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. [10] Section 29(1)(d) of the Weapons Act allows an authorised officer to give a notice revoking the licensees licence if the officer is satisfied that the licensee is no longer a fit and proper person to hold a licence. [11] The concept of fit and proper is described in s 10B of the Weapons Act which relevantly provides: (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 2 QCAT Act s 20(2). 3 QCAT Act s 21(1). -- 3 of 16 -- 4 (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 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 …….. (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; The respondent’s case [12] The respondent submits that the applicant is not a fit and proper person to hold a firearms licence and refers to s 10B(1)(ca) and s 10B(1)(d) of the Weapons Act. The applicant relies on the unlawful stalking conviction (no conviction recorded) and the existence of the restraining order effective for five years until 29 August 2027, both finalised in the Charters Towers Magistrates Court on 30 August 2022. [13] The applicant was convicted under s 359E of Schedule 1 of the Criminal Code Act 1899 (Qld) (the ‘Code’) that between 16 January 2022 and 8 March 2022, in Charters Towers in the State of Queensland the [applicant] unlawfully stalked [the complainant].4 [14] The restraining order made under s 359F of the Code provides that the applicant is prohibited from: (a) directly or indirectly, personally or otherwise, having or attempting to have any contact with the complainant; (b) entering, or loitering near, a place at (sic) the complainant is working; 4 Transcript of proceedings, Magistrates Court Charters Towers dated 30 August 2022 per Magistrate Smid at page 5 lines 15 to 20. The complainant is Ms Stead. -- 4 of 16 -- 5 (c) approaching within 100 metres of the residential address of the complainant. [15] The case authority referred to by the respondent is Trezise v Queensland Police Service – Weapons Licensing [2022] QCAT. The respondent also relies on all the material in the police brief including the QP9 and statements of witnesses. [16] The respondent submits that it is not in the public interest for the applicant to hold a firearms licence in circumstances where the applicant has been found guilty of stalking and is the subject of a restraining order. [17] The respondent further submits that a conviction, even though not recorded, remains relevant as part of the background in relation to whether it is in the public interest for a person to hold a firearms licence. The applicant’s case [18] The applicant wrote the following at Part C of his application for review in this tribunal: The decision to revoke my weapons licence was based on a conviction of stalking made by Magistrate Smid on 30 August 2022 in the Charters Towers Magistrates Court. The conviction was after a trial. I was unrepresented during the trial. I received a $400 fine with no conviction recorded. The decision maker did not take into account the factual basis and/or the scale of seriousness of the offence of which I was convicted and placed too much weight on the charge alone as a basis to find that I am no longer a fit and proper person to hold a weapons licence. ………. Apart from this conviction, there are no other reasons for the revocation of my weapons licence as I have otherwise been deemed a fit and proper person and a responsible weapons licence holder. [19] The applicant provided a statement of evidence dated 29 April 2024: (a) The statement refers to Part C of the “Information Notice and Statement of Reasons” provided by the respondent which provides: I noted you were charged in March 2022 with unlawful stalking. You received no conviction recorded and were fined $400. I also note that as a result of this charge you are subject to a restraining order that is in place until 29 August 2027. When determining if a person is a fit and proper person to retain a licence, in the public interest, an Authorised Officer must have regard to all information available. Taking into consideration the seriousness of the charge, I have determined that it is not in the public interest for you to continue to hold a firearms licence. As such your licence is now revoked. (b) The applicant states that his genuine reason for possession of a firearms licence is for recreational shooting on rural lands. (c) The applicant submits the guilty finding to the stalking charge (after a summary hearing) was due to “the frequency and the nature of the messages even though -- 5 of 16 -- 6 there was never a threat of violence against [the complainant] by the respondent.” (d) The applicant’s statement of evidence contained extracts from the magistrate’s sentencing remarks and submissions from the applicant as follows: (i) Decision - lines 25 to 35 on page 2. The applicant submits that in essence, it was found that he harboured a wish to be with the complainant and found it hard to let go. The Magistrate then advised: now, this is not a case where this is a case of unrequited love, whereas a measure of revenge, the defendant then set out deliberately to harm her, or even threaten violence, let alone carry out violence against her. That is not that case at all. But he could not give up, and he swamped her with messages, which goes to the heart of the prosecution case" (line 2, page 4) (ii) Decision - lines 13 to 19 on page 5 the applicant submits he was convicted due to the frequency and nature of the messages: even though there was never a threat of violence against her. (iii) Decision - line 30 on page 5: I think that the defendants conduct here today was exemplary and, almost bordering on professional, and I think that counts, as far as I am concerned, to a great degree in - well, to some degree, anyway, in what follows. (iv) It was then noted that the applicant had no criminal history. The magistrate then made the intention clear that the applicant was not going to receive a conviction for this offence. (v) The applicant submits that even after being found guilty at a trial, the prosecutor on that occasion did not make any submissions regarding the recording of a conviction. The applicant further submits that this is a true indication of how the Queensland Police Service (‘QPS’) saw the matter. This is particularly so when taking into account general and specific deterrence and because a person cannot get a discount after a trial which was noted at line 1 on page 4. (vi) Decision - lines 6 to 10 on page 7: But I think your conduct at the trial is such that I am persuaded that you honestly believed that you had done nothing wrong, and you genuinely believed that this had not caused detriment to Patricia. So, this is not some sort of nonsense trial where you are just having us all on, and just trying your luck I think you were genuine about that, and I- and". (vii) The applicant then submits that it was accepted that the interactions had stopped between himself and the complainant. (e) The applicant states that he is 53 years of age and currently works in the mines as a shift foreman. On his 14 days off, he works as a caretaker on a local property. He states that he is wanting to retire from the mines and transition to -- 6 of 16 -- 7 full time work on a property and for this he needs a firearms licence. He provides a character reference from CW Allingham which is set out below. (f) The applicant also states that he: (i) is heavily involved in the sporting community; (ii) has a good relationship with local police and has taken several officers shooting so they can observe what he does; (iii) has no prior violence history; (iv) has no prior drug history; (v) has no prior psychiatric illness; (vi) accepts the importance of weapons safety and does not believe he is a risk to the public or himself should his licence be reinstated; (vii) spent 20 years earning an income as a kangaroo, pig and deer harvester. During this period has never received any infringements or even warnings for weapons-related matters and has no weapons charges; (viii) grew up on cattle stations, having always been around a station for the last 46 years of his life. (ix) is remorseful for the stalking event; that it was a mere aberration, and he has moved on and that given the nature of the offence, the revocation of his licence is an unnecessary additional punishment. The applicant submits that the case of Avenell v Queensland Police Service Weapons Licensing Branch [2010] QCAT 496 (‘Avenell’) is relevant in support of this submission. The applicant submits that the applicant in that case had previously been convicted of unsafe storage of a weapon due to a rifle being found under his bed. In overturning the QPS decision to revoke his licence, the tribunal stated: The fact that he has failed to comply with the requirements of properly securing his weapons and ammunition as required by the Weapons Act is of concern but for that he has been punished. (x) The applicant submits that the applicant in Avenell also had mental health concerns, which is not the case in this matter. [20] In evidence at the hearing, the applicant stated: (a) that he regretted his conduct during the relevant period and the breakdown of the relationship; that he would act differently if he had such an experience again; that he denies ever making any threats of physical violence towards the complainant; it was “very out of character” and is genuinely remorseful for what occurred. (b) In relation to the incident on 7 March 2022 involving a telephone call with Matthew Smith, the applicant admits being a little bit angry, but not abusive, and admits that he said: “I am coming to see [him]”. The applicant denies threatening to shoot or kill Mr Smith or seeing Mr Smith that night. The applicant also denies having a gun with him at the time. Since this incident, the applicant and Mr Smith have been civil to each other. -- 7 of 16 -- 8 (c) that in his role with the mines, he undergoes drug and alcohol testing daily and he has never failed a test over 27 years of employment. (d) The applicant submits that, when all the evidence is weighed, he is a fit and proper person and relies on the case of Willingham v Queensland Police Service – Weapons Licensing [2024] QCAT 361 (‘Willingham’). (e) The applicant submits that in relation to s 10B(1)(a) of the Weapons Act, the evidence is that he has no mental or physical health issues, other than the applicant’s desire to retire from mine work due to not being able to physically perform the role. It is submitted that this evidence supports the applicant being a fit and proper person to hold a licence. [21] As to paragraph 10B(1)(b) of the Weapons Act, it is submitted that this provision does not apply because no domestic violence orders have been made, no police protection notice issued, or release conditions imposed against the applicant. [22] As to paragraph 10B(1)(c) of the Weapons Act, no weight should be placed on the fact that the applicant mistakenly thought that the firearms licence and explosives licence were linked. [23] As to paragraph 10B(1)(ca) of the Weapons Act, it is submitted I can consider all other information including: (a) the transcript of the Magistrates Court; (b) the police brief including the QP9; (c) the case of Willingham, which provides a summary of the fit and proper person test and the public interest test. In summary, both of these tests come down to the question of whether there is any real risk of the person misusing their weapons and are they a risk to themselves or the public should they be the holder of a firearms licence. It is submitted that it is relevant the applicant wants to retire to work on properties and use his weapon to euthanise stock and minimise feral pests. [24] The applicant made reasonable concessions in his evidence at the hearing such as admitting he was angry with Mr Smith; he accepted he sent too many text messages to the complainant which is evidence of his remorse. [25] It is submitted the heart of this case is that the offence is a mere aberration and that I should accept the applicant’s evidence when he says that he regrets the way he behaved and that if ever he were to find himself again in a similar situation, he would act entirely differently. The offence is out of character because the applicant has never previously been before the court for any offence whatsoever. [26] It is also submitted that: (a) even after having been found guilty after a summary hearing, the police did not push for a conviction to be recorded; and the fine was $400 which is at the lower end of punishment. The restraining order does not automatically follow the stalking conviction by default. It is left to the discretion of the magistrate to make a restraining order. (b) when balancing all the features in the case it would be open for the tribunal to find that one stalking conviction which resulted in the restraining order is out of -- 8 of 16 -- 9 character and not likely to be repeated and that everything else supports that the applicant is a fit and proper person to hold a licence when balancing the safety of himself and the public being the purpose of the Weapons Act. (c) one incident does not of itself render a person not fit and proper to hold a firearms licence.5 Consideration [27] The following are the relevant extracts from the case of Willingham: Fit and proper person [26] The term ‘fit and proper person’ is not defined in the Weapons Act. It is a legal standard used to determine if an individual is suitable to hold certain positions of responsibility or authority, particularly in regulated industries or professions, and commonly applied in various contexts, such as in licensing, employment, and professional standards. [27] The assessment of whether a person is a fit and proper person to hold a firearms licence is different from, but related to, an assessment of whether a person is of good character. Mason CJ, in Australian Broadcasting Tribunal v Bond6, a decision of the High Court of Australia, explained the question whether a person is a fit and proper person is one of value judgement. He then continued: In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. [28] The term, Toohey and Gaudron JJ held in the same decision, standing alone carries no precise meaning: It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.7 (Emphasis added) [29] Applying the principles distilled from the decision in Australian Broadcasting Tribunal v Bond, in deciding whether the applicant is a fit and proper person to hold a firearms licence, the question to be addressed is whether public and the applicant’s safety is at risk by the applicant possessing and using weapons. 5 Richmond & QPS [2016] QCAT 243. 6 (1990) 170 CLR 321, at [63]. 7 Ibid, at [36]. -- 9 of 16 -- 10 Public interest [30] The term ‘public interest’, like the term ‘fit and proper person’, is not defined in the Weapons Act. The specific meaning and application of ‘public interest’ can vary depending on the context and the legislation or legal principles involved. Generally, it serves as a guiding principle to ensure that actions, decisions, and laws are designed to benefit society as a whole and address broader community needs. [31] In Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors8, Wilcox CJ and Keeley J, explained: The purpose of the reference to ‘public interest’ is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission’s consideration. The effect of the reference is to amplify the ‘scope and purpose’ of the legislation.9 [32] The Full Court of the Supreme Court of Victoria (Kaye, Fullagar and Ormiston JJ), in Director of Public Prosecutions v Smith10, earlier held: ... The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals ... [33] The term public interest is an inherently broad concept giving a decision-maker the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.11 It allows for issues going beyond the character of a person to be considered, including concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system.12 Exercise of discretion [34] The way a court should exercise its discretion to revoke a firearms licence was considered by the District Court of Queensland in Phillips v. Woolcock13. There, the appellant pleaded guilty to two charges, one of possession of dangerous drugs and one of possession of utensils used in connection with the use of dangerous drugs. Convictions were recorded and a fine was imposed with a default period of imprisonment. His firearms licence was then revoked. [35] McGill DCJ (as he then was), at [29], observed: There was, in my opinion, nothing in the circumstances before the Magistrate which was capable of supporting a conclusion that the appellant was not a fit or proper person to hold a weapons licence. The magistrate’s conclusion to the contrary indicates that he must have applied the wrong test. The object of the Act is to prevent the misuse of 8 [1995] IRCA 540; (1995) 131 ALR 657. 9 Ibid, at 681. 10 [1991] 1 VR 63. 11 See Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25]. 12 See Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16, at [33]. 13 [2002] QDC 35. -- 10 of 16 -- 11 weapons: s.3(2). The discretion given in s.29 must be exercised with reference to that objective, no other considerations being specified by the legislation. All the Magistrate was concerned with was the mental fitness of the licensee, and he ought to have been considering whether there was some aspect of his mental state which gave rise to some real risk of misuse of weapons by him. A propensity to display violence towards others might well lead to such a conclusion, but merely getting angry occasionally (not accompanied by violent behaviour to others) in my opinion is too remote and does not give rise to a logical concern about the fitness of the licensee because of a propensity to misuse weapons. [36] Subsequently, in Stower v Smart14, a case in which the appellant’s firearms licence was suspended after he was charged with serious assault and committed for trial, Skoien SJDC said the following about the court’s exercise of discretion: [22] The fact of the charge of serious assault was the sole ground to which Her Honour referred in her reasons as the triggering event to cause her to apply s 28. But as I said in para [12], a decision based solely on that would not be an exercise of discretion. To begin with, the question to be considered should be the nature of the assault. Here, while Brown was aged 69, Stower was himself 57, well into middle age. Then the nature of the assault must be considered. An assault, after all, can be constituted by something as trivial as blowing in someone’s face or, when within arm’s length, making as if to strike a person. Here the alleged assault was not as trivial as those, but it still fell at the low end of the range. The effect of the assault is relevant. No injury was suffered. The reason for the assault, if known, would be a relevant consideration. Here one can glean from the evidence of Inspector Smart that it arose out of some sort of power struggle within the Historical Society. Such things can become heated and apparently did so here, but did not allegedly provoke Stower to punch, kick, or use any sort of weapon or offensive instrument. What occurred, allegedly, was some pushing and shoving. There is no suggestion that Stower uttered threats of violence, in particular any threat to harm Brown or anyone else and most relevantly any threat to use a firearm. What appears from all of that is that it was the sort of event (if the allegations are true) in which ordinary, generally law abiding people, can find themselves behaving quite out of character, often to their immediate regret and lasting embarrassment. In this case Stower offered an immediate apology to Brown “the reason being that I’ve known the man for so long and also to be able to move on from the incident”. Stower was not cross-examined. [23] Then the proper exercise of a discretion would require the learned Magistrate to evaluate the evidence of the character of Stower. It was quite unchallenged that he has had a blameless past, had held and holds responsible positions, is not a violent man, has had an exemplary past so far as his use of firearms is concerned, that he offered an immediate apology to Brown, that there is no suggestion of bad blood between them such as might lead him to wish to harm Brown. [24] From considerations such as those the proper exercise of discretion would then lead to the questions: “In those circumstances is there any real prospect of Stower misusing his weapons so that his licence should be 14 [2007] QDC 4. -- 11 of 16 -- 12 suspended? Is his right to possess firearms a real risk to public and individual safety?” While it may be right to say, as Her Honour did, that the public interest had priority, public interest is best served by a proper application of the provisions of the Act.15 [28] As to the evidence in this proceeding, the respondent relies on the nature of the unlawful stalking which I find material in relation to the issue of whether the applicant is a fit and proper person to hold a firearms licence: (a) According to the QP9, which I accept as reliable and credible evidence, on 31 January 2022, the complainant attended the Charters Towers Police station and reported receiving harassing text messages from the applicant. The complainant’s expressed wish was to have the police speak with the applicant and for his behaviour to stop without the need for any formal complaint, if possible; (b) On 1 February 2022, the police contacted the applicant, and he attended the police station at Charters Towers where he was informed about the nature of the complaint and was told that the complainant wished him to cease contact with her. He was further advised by police that if he continued to contact the complainant, that she would make a formal complaint and that he could face criminal charges. The QP9 states that the applicant acknowledged understanding this advice and that he had “blocked and deleted” her contact information and that he was unable to make contact with her anymore; (c) The complainant gave a statement to police informing them of an incident where a nylon bag containing a letter was left in the complainant’s front yard on 6 February 2022. The complainant states that the bag contained an envelope and letter and that she recognised the handwriting was that of the applicant; (d) On 17 February 2022, the complainant states that when she returned home, she found flowers and a card left on her veranda on 17 February 2022. The complainant states that she recognised the handwriting on the card as that of the applicant; (e) The incident on 7 March 2022 at 49 Steel Road, Southern Cross where at the hearing the applicant admitted attending the property and where it is found by the magistrate that the applicant telephoned Mr Smith within 10 minutes of the complainant arriving at Mr Smith’s home and there was: this conversation that was so threatening that to Matt that he scarpered – he switched off the lights and they all hid. The question arises, did the defendant know that [the complainant] was there. The timing is peculiar. She was there, a taxi arrives, there is a car that makes a U turn, it is – and then later in the evening the [applicant] actually turns up and bangs and yells and screams.” I conclude that the conduct by the defendant ringing up Matt at that time threatening him - he must have known that she was there, and was directed – well at Matt, but it was for the benefit of her cars ultimately, too. If I am wrong in that so be it. But I rely on that as an incident that is 15 See also Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378, per Senior Member O’Callaghan at [24]-[27]. -- 12 of 16 -- 13 very telling as someone who just cannot make – cannot let things go. And there was otherwise no argument between the applicant and Matt.16 (f) There is also the undisputed evidence of approximately 91 text messages sent by the applicant to the respondent over the period 16 January 2022 to 8 March 2022; 17 (g) The complainant said in her statement to police that she was “fearful of [the applicant] and what he might do”.18 (h) There is evidence in statements provided to the police by witnesses regarding the 7 March 2022 incident where it is alleged the applicant said words to the effect of: I’m going to kill you. You are a dog. I am on my way.19 I’m going to shoot you.20 I do not give the evidence of these witnesses much weight because they were not present at the hearing; they were not cross examined and the evidence was therefore not tested. Furthermore, the applicant, during his evidence, gave contradictory evidence by denying saying what was alleged by those witnesses but admitted saying on the telephone the words: “I am coming to see him”. [29] By contrast, there is evidence from the applicant as to his background, good standing in the local community and good character generally. I accept the applicant’s evidence that he: (a) is 53 years of age and is heavily involved in the sporting community; (b) has a good relationship with local police and has taken several officers shooting so they can observe what he does; (c) has no prior violence history; (d) no prior drug history; (e) no prior psychiatric illness; (f) accepts the importance of weapons safety and does not believe he is a risk to the public or himself should his licence be reinstated; (g) spent 20 years earning an income as a kangaroo, pig and deer harvester. During this period has never received any infringements or even warnings for weapons related matters and has no weapons charges; (h) grew up on cattle stations, having always been around a station for the last 46 years of his life. 16 Transcript of proceedings, Magistrates Court Charters Towers dated 30 August 2022 per Magistrate Smid at page 4 lines 17 to 31. 17 The applicant contends that the complainant also sent him messages (exceeding 48 as claimed in the QP9) but accepted at the hearing that he sent more text messages to the complainant than he received from her. 18 Statement dated 8 March 2022 at paragraph 25. 19 Statement of Stuart James Wheeler dated 9 March 2022. 20 Statement of Matthew Charles Smith. -- 13 of 16 -- 14 I find this evidence relevant under s 10B(1)(a) of the Weapons Act and I place some weight on it. [30] I also place weight on the magistrate’s findings of the absence of a threat of physical violence against the complainant by the applicant. However, I do not accept the applicant’s submission that the conviction was solely due to the nature and frequency of messages because the magistrate also referred to the incidents on 17 February 2022 and 7 March 2022 in his decision. [31] I acknowledge the magistrate’s finding of the applicant’s exemplary conduct during the trial; however, that finding was made in the sentencing remarks. It was not a finding about the applicant’s behaviour in relation to the unlawful stalking charge. I therefore do not place much weight on it. [32] There is the reference from CW Allingham which provides: To whom it may concern I have known Isaac “Ikey” Axford for 50 years, as he has been a neighbour to our properties for that time. Ikey has been coming shooting feral animals and harvesting kangaroo’s and dear and pigs, and dingos, for 36yrs. Ikey also provides a service to our properties in reducing the feral animal’s number. Ikey also provides a service, by caretaking our properties, when we go away for business or holidays trips. These services, involve checking on cattle and maybe destroying injury animals or bogged cattle, or sick animals. Ikey also helps out on the property, with grading firebreak, fence lines, watering points. Ikey also provides, a service, in maintaining, security on our property by monitoring unwanted visitors to your property’s, which has been coming a problem over the years. Your Sincerely, C.W Allingham – Director Name of properties Ikey provides a service on Fletcher Vale Acres – 80,000 [33] The reference by CW Allingham sets out the applicant’s work on the property. It says nothing of the unlawful stalking offence and the restraining order. The reference supports the applicant’s evidence that he wishes to transition away from working in the mines and into caretaker work on rural properties and is therefore relevant, but I do not place much weight on it. [34] The applicant gave evidence that he acted out of character, is remorseful, would act differently if the circumstances occurred again and that his behaviour was an aberration. I have been asked by the applicant to accept this evidence. I accept that the applicant gave his evidence in an honest manner. However, I place little weight on -- 14 of 16 -- 15 this evidence because I am not satisfied that the applicant’s behaviour is not likely to be repeated because the applicant continued his unlawful behaviour notwithstanding what occurred on 1 February 2022 at the Charters Towers police station where, according to the QP9, the applicant acknowledged receiving advice that continued contact with the complainant could result in criminal charges and that he told the police that he had “blocked and deleted her contact information and that he was unable to make contact with [the complainant] anymore.” [35] I place some weight on the fact that even after having been found guilty after a summary hearing, the police did not push for a conviction to be recorded, and the fine was $400 which is at the lower end of punishment. [36] Even though there is evidence and there are findings favourable to the applicant, I do not find these strong enough to outweigh the following upon which I place most weight: (a) The nature of the stalking described above. This is a serious offence that involved extensive unwanted text messaging and included the incident on 7 March 2022 during the relevant period from 16 January 2022 to 8 March 2022. I therefore do not accept the claim in Part C of application that “The decision maker did not take into account the factual basis and/or the scale of seriousness of the offence of which I was convicted and placed too much weight on the charge alone as a basis to find that I am no longer a fit and proper person to hold a weapons licence.” (b) The magistrate considered it desirable to make a five-year restraining order against the applicant (which carries a maximum penalty for contravention of 120 penalty units or three years imprisonment under s 359F(10) of the Criminal Code)21 after hearing the evidence given at the summary hearing for the unlawful stalking. (c) The recency of the unlawful stalking conviction and the fact that the restraining order is in place until 29 August 2027. (d) The applicant’s continued behaviour towards the complainant, notwithstanding the advice from the police on 1 February 2022 that if it continued, he could face criminal charges, which is what eventuated. [37] When considering this application afresh and having regard to the principles and object of the Weapons Act as contained in s 3, and balancing all the features of the case, I find the applicant’s past actions and behaviour are not consistent with societal standards and therefore I am not satisfied that the applicant is a fit and proper person to hold a firearms licence. I consider the correct and preferable decision is that the respondent’s decision to revoke the applicant’s firearms licence is confirmed. Human Rights Act [38] Notwithstanding that no argument was directed at the impact of the Human Rights Act 2019 (Qld) (the ‘HRA’), I consider that the HRA applies in this matter and potentially impacts the applicant’s human rights, including under s 24 which provides that all 21 Trezise v Queensland Police Service – Weapons Licensing [2022] QCAT. -- 15 of 16 -- 16 persons have the right to own property alone or in association with others and that a person must not be arbitrarily deprived of the person’s property. [39] However, having regard to the principles and object of the Weapons Act, the fact that the object is to be achieved for firearms by providing strict requirements that must be satisfied for licences authorising possession of firearms, I find that the applicant’s human rights have not been limited to an extent and in a manner that is not reasonable and justifiable.22 In so finding, I have had regard to the following matters: (a) The significance of the purpose of the limitations imposed by the Weapons Act such as: (i) The principle contained in s 3(1)(a) that weapon possession and use are subordinate to the need to ensure public and individual safety; (ii) The principle contained in s 3(1)(b) that 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; (iii) The object of the Weapons Act to prevent misuse of weapons; (b) The existence, terms and duration of the restraining order and the nature of the evidence alleged against the applicant. Order Pursuant to s 24(1)(a) of the QCAT Act, the decision made by the respondent on 7 September 2022 to revoke the applicant’s firearms licence is confirmed. 22 See sections 3, 4(d) of the Weapons Act and s 13 of the HRA. -- 16 of 16 --