Cross v Queensland Police Service [2023] QCAT 336

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cross v Queensland Police Service [2023] QCAT 336 PARTIES: DAVID EDWARD CROSS (applicant) v QUEENSLAND POLICE SERVICE—WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR 471-21 MATTER TYPE: General administrative review matters DELIVERED ON: 30 August 2023 HEARING DATE: 24 May 2023 HEARD AT: Brisbane DECISION OF: Member Bertelsen ORDERS: 1. The Queensland Police Service revocation notice of 1 July 2021 is set aside. 2. The Applicant Mr Cross’s firearms licence is reinstated to be renewed as necessary. CATCHWORDS: FIREARMS AND LICENSING – revocation notice – fit and proper person – contravention of licence condition – public interests Penalties and Sentences Act 1992 (Qld), s 12(3) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s3, s20, s21, s24 Weapons Act 1990 (Qld), s3, s10, s10B, s29 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at paragraph 36 Keen v Queensland Police Service – Weapons Licensing [2019] QCAT 235 ELS v Queensland Police Service – Weapons Licensing (No2) [2022] QCAT 335 Clarke v Queensland Police Service - Weapons Licensing [2022] QCAT 415 [20]-[22] APPEARANCES & REPRESENTATION: Applicant: T Ryan QC Respondent: Acting Sergeant C Moore, Queensland Police Service -- 1 of 6 -- 2 REASONS FOR DECISION [1] By review application filed 30 July 2021 at Southport the Applicant David Edward Cross seeks review of the Queensland Police Service (QPS) decision of 1 July 2021 to revoke his firearms licence otherwise due to expire on about 29 October 2024. He seeks reinstatement of this firearms licence. Mr Cross’s weapons licence was revoked for the reason the QPS was satisfied that he had contravened a licence condition, that he was no longer a fit and proper person to hold a licence and that it was not in the public interest. [2] For the purposes of this application the Tribunal stands in the stead of the original decision maker and having regard to the material before it then makes a decision it considers to be the correct and preferable decision. There is no onus of proof nor is there any presumption that the QPS decision was correct. The Tribunal’s decision may confirm, vary or entirely replace the QPS decision. The standard of proof to be applied is the civil standard, that is, the balance of probabilities. [3] Pursuant to section 20 Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) the Tribunal must hear and decide the review by way of fresh hearing on the merits in order to produce the correct and preferable decision. The QPS as decision maker for the reviewable decision must use its best endeavours to help the Tribunal so that it can make its decision on review. When considering who is a fit and proper person regard must be had to the public interest so that it can make its decision on review, (section 10B(1)(d) Weapons Act 1990 (Qld). [4] Mr Cross at the date of hearing was a fifty-six-year-old man operating alone a small five-hundred-acre cattle breeding property at Widgee twenty kilometres west of Gympie. He has no history of domestic violence, of any offence relating to the misuse of drugs, of any actual operating misuse of firearms, no history of dishonesty of any kind, one drink driving offence over thirty years ago and no criminal history bar an unrelated minor offence in 2008 (no conviction recorded). He grew up in the bush with a familiarity of firearms from a young age. [5] Here the licence revocation is premised on three offences occurring on the morning of 29 May 2020 when police officers attended the station house at Curravera Station, a 66,000-acre property some 18 kilometres from Windorah, namely failure to keep weapons in secure storage, failure to keep firearms unloaded other than when being used to shoot and failure to store small arms ammunition and power device cartridges in a secure area. Mr Cross was charged and appeared in the Longreach Magistrates Court on the 20 October 2020. He made full admissions in relation to the charges. Mr Cross was convicted (no conviction recorded) and fined eight hundred dollars. History [6] Mr Cross grew up on Carranya Station fifty kilometres west of Windorah in far southwest Queensland. He worked in various roles including station hand and head stockman. In 1988 his family purchased a sheep property near Aramac. He managed this property until it was sold due to drought. In 1991 he obtained a helicopter mustering licence. The same year he obtained a firearms licence. From 2002 to 2019 he managed a number of pastoral properties across Queensland. In 2019 he became station manager of Curravera station Windorah and then owner perforce of a family restructure at the time. The station house had been abandoned for a long time and there had been a mice plague. The station house was not vermin proof with carpets -- 2 of 6 -- 3 having been eaten. He was the sole station occupant. The station itself was running some four to five hundred head of cattle. Mr Cross derived income on an hourly basis mustering flying a two-seater Robinson helicopter for a commercial enterprise utilising Curravera station as base of operations. [7] Mr Cross sold Curravera station in June 2022 but stayed on until February/March 2023. He then bought the small five-hundred-acre property at Widgee west of Gympie where he runs eighty to one hundred head of breeding stock with two bulls. Obtaining licence originally [8] Mr Cross used firearms all his life and well before the introduction of the Weapons Act 1990. At the time about 1990 he went to the Police Station at Charleville and got his licence. He recalled that at the time (station) workers attended at Charleville to undertake a firearms safety course. Mr Cross seemed to recall doing a safety course at Charleville a long time ago. He continually held a firearms licence continuously from 1991 to date of QPS revocation on 1 July 2021. QPS attendance at Curravera 29 May 2020 [9] On 29 May 2020 at approximately 9.30 am QPS officers attended the station house at Curravera. Coincidentally, neither Mr Cross nor anybody else was present. Officers observed an unknown number of firearms leaning up against an internal wall of the station house, that one such firearm was required to be cleared of its magazine and chamber round and that a large quantity of ammunition matching the firearms was located unsecured in the station house. Mr Cross said earlier that same day he had taken firearms out of storage in order to clean out the gun safe due to a mice plague and ensure there was no damage to his firearms. That done, he prepared to go to work taking two firearms with him to conduct a helicopter inspection of the property. He said at that point he received a call from the fencing contractor conducting fencing work on the property to come out and inspect fencing. The fencing contractor wanted to be paid. That had to be attended to before he went to work. [10] Mr Cross went out to inspect fencing by vehicle or helicopter (it was not entirely clear which). That, Mr Cross said, distracted him and he left the station house without any of the firearms located by officers later that morning. Normally he would take firearms with him in the helicopter for feral animal and pest control and putting down injured animals. He said he would not normally leave firearms not correctly stored. In his rush he did on that day. That was unusual for him. Upon becoming aware of QPS attendance he spoke to officers and drove to the police station at Windorah. Being without a licence [11] The weapons charges in the Longreach Magistrates Court on 20 October 2020 were the first since 1991. Mr Cross said he had always used firearms as part of his pastoral work and land management. He had held positions where he had been responsible for controlling feral animals and pests and had been involved with pest management under the Australian Pest Management Strategy and Pest Management Planning with the Department of Agriculture and Fisheries. [12] After licence revocation on 1 July 2021 Mr Cross continued as station manager/owner on Curravera through to February/March 2023 and then as sole owner of the Widgee property. That, Mr Cross said, resulted in financial loss losing some thirty cows at a cost estimate of up to sixty thousand dollars. Being without a licence on Curravera in -- 3 of 6 -- 4 particular became difficult. Feral pigs were not so much a worry, but dingoes were. A shire contractor could be hired for four hundred dollars per day to kill dingoes but that was expensive and for Mr Cross effectively unaffordable. At Widgee there was no cluster or vermin fencing. The property was near a National Park, a breeding ground for feral animals. Moving stock around had some limited effect but did not solve the feral animal and pest problem. If anything, feral animals were proving to be a bigger problem at Widgee than at Curravera. Summary [13] Mr Cross grew up in the bush and has lived in the bush near and far in various occupations, some very responsible, all his life. He held a weapons licence for over thirty years without incident or being brought to the notice of the QPS in relation to that licence. At the very outset in 1991 he probably received on his own evidence some instruction, advice or training consequent on the introduction of the Weapons Act 1990. What exactly that was, Mr Cross could not remember. It was so long ago. Nor was there any evidence proffered by the QPS as to what that might have been or the adequacy of it. [14] Mr Cross’ three licence transgressions based on unusual, rushed circumstances and impliedly with not enough thought being put into rushing off and leaving weapons, a loaded weapon and ammunition unsecured, are not so much the issue in that all three were admitted and pleaded to in court with a fine imposed. It is the latter categorisation of Mr Cross as a result that he then is not a fit and proper person to hold a weapons licence and a threat to the public interest perforce of those transgressions. [15] Section 29(1) of the Weapons Act 1990 (Qld) confers a discretion on an authorised officer (QPS) to revoke a weapons licence. The QPS determined some eight months after his Longreach Magistrates Court appearance that his licence be revoked. The QPS attendance at Curravera on 29 May 2020 has already been traversed in some detail. The legislative framework is clear. By section 3 of the Weapons Act 1990, weapons possession and use are subordinate to the need to ensure public and individual safety. By section 10(2)(e) of the Weapons Act 1990, a licence may be issued to an individual only if a person1 is a fit and proper person to hold a licence. By section 10B(2)(a)(iii), a person is not a fit and proper person if convicted of an offence involving the use, carriage, discharge or possession of a weapon within five years immediately before notice of revocation of the weapons licence is given under section 29 of the Weapons Act 1990. However, there is an exception, and it is applicable here. In Mr Cross’ case there was no conviction recorded. Where that is so, section 12(3) of the Penalties and Sentences Act 1992 (Qld) applies namely “a conviction without recording the conviction is taken not to be a conviction for any purpose”. That being so, no offence such as that for which Mr Cross received a fine is deemed to have occurred. That approach was confirmed by the Tribunal in Keen v Queensland Police Service2 and ELS v Queensland Police Service (No 2).3 Alternatively, it could be construed the offences do not engage section 10B(2)(a) or (b). Therefore, there is no argument in terms of those two subsections to say Mr Cross is not a fit and proper person to hold a weapons licence. 1 Australian Broadcasting Tribunal v Bond (1990)170 CLR321 at paragraph 36. 2 (2019) QCAT 235. 3 (2022) QCAT 335. -- 4 of 6 -- 5 [16] Pursuant to section 10(B)(1) of the Weapons Act 1990 in deciding whether a person is a fit and proper person to hold a weapons licence an authorised officer and here the Tribunal must have regard to a number of factors: A. The mental and physical fitness of the person. There was no evidence that might cast doubt on Mr Cross’s physical or mental state. B. Whether a Domestic Violence Order was ever made, or Police Protection Notice issued. There was no evidence that such was ever the case. C. Whether Mr Cross has ever made any false or misleading statement in relation to an application for or renewal of a weapons licence. There was no evidence that such was ever the case. D. Whether there is any criminal intelligence or other information accessed indicating Mr Cross is a risk to public safety or that authorising him to possess a weapon would be contrary to the public interest. There was no criminal intelligence or other relevant information justifying licence revocation. E. Public Interest. By section 3 of the Weapons Act 1990 weapons possession and use are subordinate to the need to ensure public and individual safety. In determining penalty in the Longreach Magistrates Court on 20 October 2020 his or her Honour was required to consider the public interest at that time. Rather than any revocation being put in place a monetary penalty with no conviction recorded was imposed. The principles relating to whether a person is a fit and proper person to hold a weapons licence (and therefore whether it is in the public interest) was discussed at some length in Clarke v Queensland Police Service –Weapons Licensing.4 It was there stated that the public interest was a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation. It was further stated that when considering the public safety in the context of weapons licensing, individual and public safety are important factors to be taken into account. Here there is only a once in thirty-year offence/s which did not initially at least warrant licence revocation. That is in stark contrast to Clarke v Queensland Police Service –Weapons Licensing,5 where there were a number of prior transgressions leading to a conclusion of, amongst other things, a lack of insight into offending. Here it can readily be implied that remorse in some way shape or form was expressed in the Longreach Magistrates Court otherwise the Magistrate would not treat the charges in the manner he or she did. [17] There was no evidence of history of domestic violence, of any offence relating to the misuse of drugs, of any actual operating misuse of firearms, no history of dishonesty 4 [2022] QCAT 415 [20]-[22] 5 Ibid. -- 5 of 6 -- 6 of any kind, one drink driving offence over thirty years ago and no criminal history bar an unrelated minor offence in 2008 (no conviction recorded). There was absolutely no evidence of any course of conduct over time suggesting disregard for his licence conditions. Quite the contrary a once in thirty odd year transgression alone and miles from nowhere in respect of which immediate admissions were made. That is not making excuses or misleading the Tribunal. That is being open and honest. Careless yes, but there was nothing deliberate in his actions. Mr Cross is remorseful for his conduct and now acutely aware of his obligations in relation to weapons. He said exactly that in his QCAT application. [18] As for penalty Mr Cross has already paid a high price. A single transgression incident, an aberration, has cost him stock loss of thousands of dollars over the past three odd years. Clearly it is in his interest to abide by licence conditions in a more intense fashion. Nor does a once in thirty-year transgression lead to the conclusion of a licensee lacking proper appreciation of his responsibilities or to a conclusion that he has not discharged them. Quite the contrary there was no evidence of noncompliance on the part of Mr Cross in his thirty odd years as a weapons licence holder. [19] Finally, Mr Cross as his own witness came across as an old school bushie. He was not the most articulate man but open, straight forward and honest. He did not make excuses for himself admitting careless conduct to which he immediately pleaded. His demeanour and conduct were that of a man telling the truth. He was an entirely credible witness. [20] The positive factors supporting Mr Cross’ application outweigh any perceived need for licence revocation. On balance he can still be regarded as a fit and proper person to hold a weapons licence. The public interest (safety) is not compromised. In conclusion the Tribunal cannot see that this once in thirty-year singular incident warrants licence revocation. The Human Rights Act 2019 (HRA) [21] The Tribunal does not intend to dwell on the HRA. Suffice to say the Tribunal is required to make a decision compatible with Mr Cross’ human rights. The Tribunal has concluded he is not a risk to public safety. So, to impose an ongoing financial burden (which a revocation would be) on Mr Cross cannot be construed as reasonable or justifiable. Orders [22] 1. The Queensland Police Service revocation notice of 1 July 2021 is set aside. 2. The Applicant Mr Cross’s firearms licence is reinstated to be renewed as necessary. . -- 6 of 6 --