Aslan v Queensland Police Service – Weapons Licensing [2024] QCATA 47

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Aslan v Queensland Police Service – Weapons Licensing [2024] QCATA 47 PARTIES: BAHATTIN ASLAN (applicant/appellant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: APL100-22 ORIGINATING APPLICATION NO/S: GAR410-20 MATTER TYPE: Appeals DELIVERED ON: 24 April 2024 HEARING DATE: 21 February 2024 HEARD AT: Brisbane DECISION OF: Senior Member Traves ORDERS: Leave to appeal is refused. CATCHWORDS: APPEAL – GENERAL ADMINISTRATIVE REVIEW – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF MIXED FACT AND LAW – where leave to appeal required – where no submissions addressing leave – whether leave should be given – whether error in law and fact in finding applicant was not a fit and proper person – whether error in law and fact in finding not in public interest for applicant to hold weapons licence – where decision-maker not available for cross examination at the hearing Acts Interpretation Act 1901 (Cth), s 25D Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21, s 142, s 157, s 158, s 159, s 160 Weapons Act 1990 (Qld), s 10B, s 30 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 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) -- 1 of 11 -- 2 REASONS FOR DECISION [1] Mr Aslan’s application for leave to appeal arises out of his application to the Tribunal to review a decision made by the Weapons Licensing branch of the Queensland Police Service, that his weapons licence should be revoked. On 29 March 2022 the Tribunal affirmed the decision of the respondent to revoke the applicant’s weapons licence on the grounds the learned Member was not satisfied Mr Aslan was a ‘fit and proper’ person to hold a licence considering the factors in s 10B of the Weapons Act 1990 (Qld), in particular, the public interest.1 Mr Aslan seeks to appeal that decision. [2] 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 Mr Aslan has not made any submissions addressing the issue of leave. [3] 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 Decision of the Member [4] The learned Member referred to the ‘clear’ object of the Act, namely, that ‘weapon possession and use are subordinate to the need to ensure public and individual safety’ and to the factors set out in s 10B in arriving at the decision to confirm the decision to revoke Mr Aslan’s licence. In arriving at that decision the learned Member found: (i) The applicant had a lengthy and serious criminal history including offences of violence against people, possession of a handgun and ammunition without a licence. (ii) The majority of the offences occurred between 1992 and 2009. (iii) The applicant entered a plea of guilty in 2020 to a public nuisance charge. The agreed facts relating to this incident relate to a ‘road rage’ event involving the applicant as aggressor. The video footage of the public nuisance offence showed a risk to public safety. (iv) The applicant relied on a health report by Ms Fox dated 1 May 2020 which states the applicant ‘does not engage in impulsive behaviour…manages emotion appropriately and is…low risk with regard to harm to self and others.’ (v) Ms Fox was not aware of the applicant’s criminal history, including the applicant’s plea of guilty in 2020 to the public nuisance offence and was not available for cross examination. Less weight was given to the report than would otherwise have been given to an expert witness in those circumstances. (vi) The applicant had participated in an anger management course; seen a psychologist on one occasion; had positive character references; and ten years 1 Aslan v Queensland Police Service [2022] QCAT 117. 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 11 -- 3 without an offence. The applicant’s reason for undergoing the course was said in cross examination to be that he had been directed to do it by his solicitor. Some of the references were ‘very complimentary’ particularly the reference by former Leading Senior Constable of Police in Victoria, Tyrone Cerminara, dated 7 November 2020 attesting to his character and handling of firearms. (vii) The psychological report, positive references and completion of the anger management course were insufficient to overcome the paramount objective of public safety. (viii) Brown v Queensland Police Service4 (a case where the applicant was held to be a ‘fit and proper’ person despite a lengthy criminal history) was distinguishable on the basis that here, the applicant had a recent public nuisance offence. (ix) The applicant’s submissions regarding the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) had been taken into account. (x) Authorising the applicant to possess a weapon would be contrary to the public interest and consequently, the decision to revoke the applicant’s licence was confirmed. Leave to appeal [5] I am not satisfied there is a reasonable argument that the learned Member made an error and that an appeal is necessary to correct a substantial injustice caused to the applicant. In arriving at that conclusion I have considered the grounds of appeal set out below. Grounds of Appeal [6] The grounds of appeal are as follows: Ground One The Member was drawn into error of law and fact in finding the applicant was not a fit and proper person to hold a weapons licence because: a. The applicant was denied natural justice because: (i) The Queensland Police Service (QPS) did not provide sufficient reasons prior to the hearing; (ii) The QPS provided new reasons at the hearing without providing the applicant an opportunity to respond prior to the hearing; and (iii) The QPS may have misled the Member about the applicant’s criminal history. Ground Two The Member erred in law and fact in finding the applicant was not a fit and proper person to hold a weapons licence because: a. The Member attached too much weight to the applicant’s criminal history; 4 [2021] QCAT 293. -- 3 of 11 -- 4 b. The Member attached too much weight to the applicant’s public nuisance offence in 2019; and c. The Member attached too little weight to the applicant’s good conduct, psychological report, and character references. Ground Three The Member erred in law and fact in finding it was not in the public interest for the applicant to hold a weapons licence because the Member erred in finding the applicant was not a fit and proper person. Ground Four The QPS decision maker was not available for questioning as ordered for the hearing. Consideration Ground One: Was there a denial of natural justice? [7] The first ground of appeal is that there was an error of law and fact in finding the applicant was not a fit and proper person because he was denied natural justice in the process of arriving at that finding. The denial of natural justice is said to have occurred because the QPS did not give sufficient reasons for their decision prior to the hearing; gave new reasons at the hearing in respect of which the applicant did not have an opportunity to respond; and may have misled the tribunal about the applicant’s criminal history. Adequacy of reasons given for decision under review [8] The applicant referred to s 25D of the Acts Interpretation Act 1901 (Cth) which provides that where an Act requires a person making a decision to give written reasons for the decision, ‘the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based’. [9] The applicant submitted that, accordingly, the Information Notice notifying the applicant that his licence had been revoked should have contained: (a) the decision (b) the findings on material facts (c) the evidence or other material on which those findings are based; and (d) the reasons for the decision. [10] The respondent submitted that the arguments raised about a failure to provide reasons or particulars of the decision under review were misconceived and failed to appreciate the role of the tribunal on review. Consideration [11] There is no free-standing common law duty to give reasons for making a statutory decision. The duty of the QPS-Weapons Licensing to give reasons for its decision to the applicant arises from s 30 of the Weapons Act and s 157 of the QCAT Act. The content of that statutory duty defines the statutory standard that a ‘written statement of reasons’ must meet to fulfil it. -- 4 of 11 -- 5 [12] Section 30(1)(b) of the Weapons Act 1990 (Qld) provides that a revocation notice must – … (b) state the specific reasons for the suspension or revocation of the licence. [13] Section 157 of the QCAT Act requires a decision maker for a reviewable decision to give a written notice which includes the decision and the reasons for it to each person who could apply to QCAT for review. If reasons are not initially provided, the putative applicant may request them5 and, if not forthcoming, the Tribunal may make an order requiring that the reasons be provided.6 [14] If reasons are provided but the tribunal considers they do not contain adequate particulars of the reasons for the decision, the tribunal may make an order under s 160 requiring the decision-maker to give the person, within a stated period, an additional statement containing further and better particulars about stated matters.7 [15] After an application to review has been made there is an obligation on the decision maker to provide the tribunal with a written statement of reasons and any documents in its possession that may be relevant to the review. Section 21(2) of the QCAT Act provides: (2) Without limiting subsection (1), the decision-maker must provide the following to the tribunal within a reasonable period of not more than 28 days after the decision-maker is given a copy of the application for the review under section 37 — (a) a written statement of the reasons for the decision; (b) any document or thing in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the decision. (3) If the tribunal considers there are additional documents or things in the decision-maker’s possession or control that may be relevant to the tribunal’s review of the reviewable decision, the tribunal may, by written notice, require the decision-maker to provide the documents or things. (4) If the tribunal considers the statement of reasons given under subsection (2)(a) is not adequate, the tribunal may, by written notice, require the decision- maker to give the tribunal an additional statement containing stated further particulars. (5) The decision-maker must comply with a notice given under subsection (3) or (4) within the period stated in the notice. [16] The respondent gave the Revocation Notice and accompanying Information Notice setting out the reasons for its decision to the applicant on 4 September 2020. [17] On 27 October 2020 the applicant filed an application to review that decision. On 12 January 2021 the Tribunal directed the QPS -Weapons Licensing to file and serve any documents and other material in its possession or under its control that may be relevant to the Tribunal’s review by 10 March 2021. On 7 April 2021 the ‘s 21 bundle’ (53 5 QCAT Act, s 158(2). 6 QCAT Act, s 159. 7 QCAT Act, s 160. -- 5 of 11 -- 6 pages) was filed and served. On 27 May 2021 the respondent filed additional documents (27 pages). [18] The Information Notice provided to the applicant on 4 September 2020 outlined the relevant statutory provisions and case law (ss 10B(1)(ca) and (d) and s 29(1)(d) of the Weapons Act) and concluded: I note you were convicted on 16 June 2009 in the Southport District Court for the charge of Stealing and threatening violence. I note you received a penalty of conviction recorded and a fine of $1500. I note that at the time of assessment of your new Application, you were issued with a Further Offences warning letter which states that any further offences (including traffic offences) will result in the review of your suitability to hold a weapons licence. I note you were convicted on 13/08/2020 in the Southport Magistrates Court for the charges of Commit public nuisance. I note you received a penalty of no conviction recorded and a $1500 fine. 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: 1/ your serious, extensive and continuous criminal history, 2/ the previously issued Warning letter and 3/ your apparent disregard for the laws of this State 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. [19] Neither s 30 of the Weapons Act or s 21 of the QCAT Act prescribe what standard is required to meet the obligation to give a written statement of reasons. The standard is therefore to be determined by a process of implication. Whether the reasons given for the decision under review are adequate should be viewed in the context of the Tribunal’s role on review. [20] The Tribunal’s role on review is to arrive at the correct and preferable decision, not to point to error in the reasoning of, here, the weapons licensing branch of the QPS.8 In Kehl v Board of Professional Engineers of Queensland9 it was held: The Tribunal’s role in exercising review jurisdiction is to reconsider the original decision and to make the correct and preferable decision. The review is conducted on the merits, by way of a fresh hearing. Unlike judicial review, the Tribunal’s function is to review the decision – not the process by which it was arrived at, nor the reasons given for making it. Accordingly, the Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made. There is no presumption the original decision is correct.10 [21] That said, in my view, the respondent did give adequate reasons - essentially that the nature and length of the applicant’s criminal record, in particular the offences of stealing and threatening violence of 16 June 2009 and the more recent public nuisance 8 QCAT Act, s 20. 9 [2010] QCATA 58. 10 Ibid at [9] per Deputy President Judge Kingham; Young v Queensland Police Service Weapons Licensing Branch [2010] QCAT 629 at [24]. -- 6 of 11 -- 7 offence (the road rage incident) of 13 August 2020, meant it was not in the public interest for him to continue to hold a firearms licence. I find that the reasons did adequately inform the applicant of the reasons why his weapons licence had been revoked. [22] Further, I do not accept the applicant’s submissions that the provision of the additional material which had not been relied upon by the respondent when making its decision, meant a further statement of reasons should have been provided. The reasons required are the reasons for making the decision at the time it was made. [23] There is no merit in this ground. New reasons for the decision under review provided at the hearing [24] The applicant submitted that the respondent’s opening address referred to ‘more detail’ than was provided in the Information Notice, namely by referring to: a) an allegation and explanation of “concerning aggressive behaviours contributing to a continuous (indistinct) history and a history of traffic offences;” b) an allegation of “fail[ing] to disclose any additional offences or previous domestic violence orders;” c) a detailed (and incorrect) analysis of the applicant’s criminal and traffic history; d) a claim that the applicant “refused” to co-operate with police. e) a claim that the applicant suffers from “irresponsible, uncontrolled or anti-social behaviour”. [25] The obligation to observe the rules of natural justice applies to the tribunal in conducting a proceeding.11 The applicant was entitled to be given an adequate opportunity to respond to matters or evidence raised by the respondent where those matters or evidence are relevant to the decision under review. This stems from the requirement to give procedural fairness. However, procedural fairness is not an abstract issue; attention needs to be focussed on the question whether conduct which is said to be procedurally unfair produced some practical injustice.12 I am not satisfied, in relation to the matters identified above, that the applicant was denied the opportunity to make submissions or, assuming that he was, that it was material to the Tribunal’s decision.13 [26] The opening address did not raise matters the applicant was not aware of. The applicant’s behaviours were categorised as “aggressive” and he had omitted to disclose additional offences and previous domestic violence orders. The fact of the domestic violence order was disclosed when the respondent provided the further additional material. The categorisation of the applicant’s behaviours as “continuing aggressive behaviours” in reliance on the applicant’s criminal record and history of traffic offences was also unsurprising. The criminal record and traffic offences were both disclosed in the s 21 material. The claim that the applicant refused to “co-operate with police” did not, in my view, cause any practical injustice given the circumstances 11 QCAT Act, s 28(3)(a). 12 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [38]; Coutts v Close [2014] FCA 19 at [120] per Griffiths J. 13 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 at [56]-[57]. -- 7 of 11 -- 8 of the underlying offence of ‘public nuisance’ itself was far more concerning. Finally, the description given by inference to the applicant’s conduct as “irresponsible, uncontrolled or anti-social behaviour” is the respondent’s view of the conduct which was disclosed prior to the hearing. I am not satisfied that any practical injustice was caused by a failure to provide such categorisation earlier. [27] There is no merit in this ground. Inaccuracies in submissions made about the applicant’s criminal history [28] The applicant submitted that the respondent in its opening address made the following inaccurate statements in relation to the applicant’s criminal history which meant he was denied a fair hearing: a) The respondent said the applicant was charged and found guilty in 1991 of discharging a missile to cause danger and intentionally cause injury; a conviction was recorded and he was placed on a good behaviour bond. The applicant submitted that the submission appears incorrect because a guilty plea was entered; there was no evidence recorded; and given a good behaviour bond, a recorded conviction was highly unlikely. b) The respondent said the applicant was sentenced to four months imprisonment, suspended for the charge of recklessly endangering life which involved him “deliberately” hitting a pedestrian on a crossing, then reversing and attempting to hit a second victim. The applicant submitted the submission appeared incorrect because there was no evidence provided to support the conclusion that the offence was deliberate and the facts as pleaded were not provided, only in the police report. c) The respondent said that the applicant was convicted and fined for the charge of possession of ammunition and an imitation handgun and with cultivating cannabis. The applicant submitted this appeared incorrect because no conviction was recorded for any of these matters and there was no charge of cultivating cannabis. [29] The respondent accepts that some submissions made with respect to the nature and particulars of the applicant’s offending were inaccurate. The fact a conviction was not recorded for the 1991 offence did not, in my view, cause a practical injustice. Further, the disclosed information in relation to the alleged cannabis cultivation makes clear, that although no charge was recorded, the police report states evidence was seized from the applicant’s factory which indicated the premises had previously been used for that purpose. In relation to the 1992 offence the respondent submitted: In 1992, the applicant was sentenced to four months imprisonment, suspended, for the charge of recklessly endangering life. This charge involved that, whilst driving a taxi, the applicant deliberately hit a pedestrian on a crossing, then reversed and attempted to hit a second victim on the footpath.14 [30] The Offender Charge Summary was included in the s 21 material provided by the respondent prior to the hearing. It refers to the charge as “reckless endanger life” and the reported offence as “Intentionally cause inj”. The remarks under ‘Incident Summary’ provide: 14 Transcript 1-3: p 136 of the Appeal Book. -- 8 of 11 -- 9 Silver top taxi MO267 struck vic in Farrady St whilst vic crossing with 3 others, driver reversed attempted to hit 2nd vic on footpath. [31] A conviction was recorded and the applicant was sentenced to four months imprisonment, wholly suspended for 6 months. [32] The applicant’s legal representative was invited to give an opening statement. He said that he did not particularly have an opening statement and that he “[didn’t] really take any issue with what the good sergeant has said”. [33] On balance I am not satisfied that the applicant was denied a fair hearing due to the identified inaccuracies. The Member had details of the applicant’s criminal record and the applicant had an opportunity in the hearing to correct any inaccuracies which did not occur. Moreover, I am not satisfied any practical injustice was caused by the inaccuracies in the submissions. Such inaccuracies were insignificant in the context of all the material facts.15 [34] There is no merit in this ground. Ground Two Weight given to different facts [35] The applicant submitted that the Member erred in finding he was not a fit and proper person to hold a weapons licence. He argued that the Member placed too much, or too little weight on the matters articulated above. [36] The applicant submitted too much weight was given by the Member to his criminal history and the nature of the individual offences and not enough weight placed on mitigating factors, in particular on the report by Ms Fox and his completion of an anger management course. [37] The applicant submitted the Member made an incorrect assessment of the material in categorising the applicant as having a “lengthy criminal history”. They say it was not lengthy because there were only six occurrences over a period of 41 years. Further, the applicant submitted the history was not “serious”. [38] Ultimately, however, the issue is whether the Member erred in finding that the applicant was not a fit and proper person. [39] The Member, while stating that the applicant had a “lengthy criminal history”, took into account that the majority of the offending occurred between 1992 and 2009. The Member then referred to the more recent public nuisance offence in 2020. The Member also refers to the report by Ms Fox but notes that Ms Fox was not provided with a copy of the applicant’s criminal history and was not available for cross examination at the hearing. The Member also referred to the anger management course and that it was undertaken at the direction of his solicitor. In effect, the Member found that the criminal history which she regarded as lengthy and serious including the recent public nuisance offence (and of which she had viewed dash cam footage) meant the applicant having a licence would be a risk to public safety. Further, that this risk was not sufficiently mitigated by Ms Fox’s report or by the completion of the anger management course. 15 Reasons at [25] to [26]: Appeal Book p 173. -- 9 of 11 -- 10 [40] The applicant’s lengthy criminal history included offences involving violence. It included offences of possessing firearms and ammunition without a licence. In 2020, the applicant was convicted on his own admission of a public nuisance charge involving ‘road rage’, where he was the aggressor. Such evidence as there was supporting the applicant not engaging in emotional behaviour and managing emotions appropriately was given without reference or knowledge of the above matters. [41] In my view the Member appropriately considered the issues relevant to whether the applicant was a fit and proper person. I am not satisfied that the Member’s conclusion that the applicant was not a fit and proper person was incorrect. [42] No error by the Member in this regard has been shown and there is no merit in this ground. Ground Three Was there an error in finding it was not in public interest for applicant to hold a weapons licence because he was not a fit and proper person [43] I have set out the Member’s findings and reasoning above. In my view it was open for the Member to conclude that the applicant was not a fit and proper person to hold a weapons licence. The Member’s findings were not against the weight of evidence or in error. Ground Four QPS decision maker not available for questioning [44] The Tribunal issued directions on 8 March 2022 that the respondent ensure the relevant named decision maker was available for cross-examination. [45] The respondent’s decision maker refused at the hearing to be cross examined, referring to a QCAT Practice Direction to that effect. The applicant submitted that they had wanted to cross examine the Sergeant to “address some of the material” to address the: a) Failure to provide adequate reasons; b) Failure to provide particulars; and c) New allegations and assertions without notice. [46] QCAT Practice Direction No 3 of 2013 provides: …the decision maker shall not give evidence or be cross examined about why it made a decision. [47] Whether or not a refusal to permit cross examination of a prospective witness will amount to a denial of natural justice will depend upon the circumstances. Here the hearing is a hearing afresh. It is not necessary to prove error in the decision in order to succeed in a review. Secondly, the decision maker is not a witness of fact. The applicant had due notice of the facts and a proper opportunity to address those matters. Thirdly, counsel at the time said that the applicant had no issue with what the decision maker had said, and, in those circumstances, there is no utility in cross examination. [48] There is no error of law or fact constituted by the Sergeant’s refusal to be cross examined or by her allegedly aggressive and adversarial conduct in the hearing. The applicant submits that he would have asked the Sergeant about the failure to give -- 10 of 11 -- 11 reasons and particulars and the new allegations which were made without notice, all of which were not relevant to the review and, accordingly, not likely to cause a substantial injustice to the applicant, such as to warrant giving leave to appeal. Conclusion [49] I conclude, for the reasons given above, there is no reasonable argument of error raised by any of the grounds of appeal. Accordingly, leave to appeal is refused. -- 11 of 11 --