APS v Queensland Police Service – Weapons Licencing [2023] QCAT 288

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: APS v Queensland Police Service – Weapons Licencing [2023] QCAT 288 PARTIES: APS (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICNESING (respondent) APPLICATION NO/S: GAR358-22 MATTER TYPE: General administrative review matters DELIVERED ON: 28 July 2023 HEARING DATE: 13 July 2023 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the respondent is set aside. The applicant be issued a weapons licence for category A and B weapons for Sport and Recreational Purposes. Publication of any information that might identify the applicant, the applicant’s former partner and the police officer referred to in these reasons, other than to the parties to this proceeding, is prohibited pursuant s 66 of the Queensland Civil and Administrative Tribunal Act 2009 CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS- LICENCES AND REGISTRATION – REVOCATION OF LICNCE – where applicant applied for a weapons licence for sport and recreational purposes – where Domestic Violence Order made against the applicant in 2014 – where applicant consented to the Order without admission – where applicant subsequently challenged the grounds for the making of the Order – where application for weapons licence rejected – whether applicant a fit and proper person to hold a weapons licence – whether in the public interest for the applicant to hold a weapons license. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 Weapons Act 1990 (Qld), s 3, s 10B -- 1 of 7 -- 2 Domestic and Family Violence Protection Act 2012 (Qld), s 159 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56 Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 APPEARANCES & REPRESENTATION: Applicant: Mr Neuendorf of Robert Bax and Associates, Solicitors Respondent: Sgt Bauer REASONS FOR DECISION [1] The applicant lives on a 308 acre rural block of land at Lowmead1 with his partner. They run cattle on the property and also are gradually improving the land to increase stock numbers. [2] On 27 august 2021 he applied to the respondent for a weapons licence for Category A and B weapons. The reason he gave for the license was for sports or target shooting. However, he also now wants to use the weapons for recreational shooting on rural lands, his own, as well as pest control on his land. [3] The respondent rejected his application. The grounds for rejection were that he was not a fit and proper person to hold a licence as is required by s 10B of the Weapons Act 1990. The particulars supporting that conclusion are that he was a respondent to a domestic violence order (“DVO”) in 2014. In addition, he was a respondent to a domestic violence application in 2021 but that application was withdrawn. Reliance was also placed on traffic offences, including low level drink driving charge in 2020. [4] Prior to the DVO the applicant did hold a weapons licence, but it was revoked on the making of the order as is required under the Act. [5] On 6 September 2021 the applicant filed an application to review the decision of the authorised officer. As this is a review of the respondent’s decision to reject the applicant’s application for a weapons licence, section 20 of the Queensland Civil and Administrative Tribunal Act requires me to make the correct and preferable decision by way of a rehearing on the merits.2 That is to have regard to the evidence filed by both parties and also the further evidence given at the hearing. It is not the function of the Tribunal to identify error or mistake in the original decision but to look at all of the surrounding circumstances, as has often been said “stand in the shoes of the decision maker, and make another decision afresh”. [6] The issuing of a weapons licence to an individual is governed by the Weapons Act 1990 (Qld). The granting of a licence is not as of right and is subordinate to the need to ensure public safety. This is achieved by the imposition of strict conditions on the possession of weapons, their storage and carriage.3 Section 10B of the Act provides 1 Which is about halfway between Bundaberg and Gladstone. 2 Queensland Civil Administrative Tribunal Act 2009 (Qld), s 20. 3 Weapons Act 1990 (Qld), s 3. -- 2 of 7 -- 3 that an individual must be a fit and proper person to hold a licence. It sets out those matters that can be taken into account, but it is not exhaustive. Relevantly here, (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 [7] The respondent submits that the term “fit and proper person” must be considered in all the circumstances of the case, and the context in which it is used in the Act.4 Also the public interest must be considered by having regard to the objects of the Act, in particular public safety.5 [8] Therefore, the question for determination in this review application is whether, in all the circumstances, the applicant is a fit and proper person to be issued with a weapons licence. The specific matters to be considered are the circumstances of the domestic violence orders, his subsequent conduct and the traffic history. 2014 Domestic Violence Order [9] At the time of making the 2014 DVO the applicant was in a relationship with Mary (a pseudonym), and had been since 2009. They had one daughter in about 2012. When she was about 18 months old she was diagnosed with leukemia and had to undergo significant medical treatment. At about this time the relationship between the applicant and Mary broke down and she moved from their residence in Atherton to Brisbane so that their daughter could get treatment. This caused a further strain on the relationship. The applicant says that his access to his daughter was restricted and ultimately Mary applied for the DVO. [10] Rather than contest the allegations in the application for the DVO, the applicant says that he agreed to the making of the 2014 DVO without admission of the conduct alleged in the application. He did this to try and diffuse the ongoing dispute he was having with Mary about contact with his daughter. There was, at the time, an ongoing Family Court proceeding about contact to their daughter. [11] As for the specific allegations that he: (a) threatened Mary with a carving knife; (b) fired a shotgun through the wall in the kitchen; (c) held a loaded shotgun to your stomach; (d) punched and abused Mary; (e) made threats to burn the house down with your wife and daughter inside whilst holding a jerry can of fuel; (f) threatened to kill himself with a handgun 4 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56. 5 Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 at [36]. -- 3 of 7 -- 4 the applicant denies that these event as described it the application occurred. He provided an explanation about some of the allegations to Dr Donna Eshuys, Clinical Psychologist, who has provided a medico-legal report to the Tribunal. [12] He told her that the knife incident occurred in 2010 when he took a knife from the drawer because he believed intruders were trying to get into the house. However it turned out to be intoxicated friends of Marys’ coming to the house, he denies threatening her with a knife. The shotgun incident occurred in 2011 and he says it was Mary who fired the shot through the wall during an argument. In fact he says one of the pellets hit him in the arm. [13] This was obviously a serious incident. He was questioned about it at the hearing by Sgt Bauer and asked why he did not report it to police. He told the Tribunal as he reported to Dr Eshuys, that he did not want Mary to get into trouble and impact her career as a general medical practitioner. There was no evidence to contradict this and given the timing of the incident it does seem like a reasonable explanation for not reporting it to police. [14] He denies holding the loaded shotgun to his stomach and also punching Mary. He does say that there ongoing arguments between them from about 2010, which became very heated at times where each hurled verbal abuse at the other. [15] The fuel can incident is explained to Dr Eshuys and relates to another argument where the applicant says he was walking around with an empty fuel can one night and trying to get the keys for Mary’s car so he could go and fill it. He wanted the fuel for his motor bike so he could go to his parent’s house because of the arguments they were having. Again he denies any threat to burn the house down with both the Mary and their daughter inside. [16] These are serious allegations of events well before the application for the DVO. The evidence about the allegations were never tested because the applicant agreed to the DVO without admission. As I said at the hearing, the basis for the refusal of the licence is based on contested facts. Also, events which occurred more than nine years ago and the most serious, the shot through the wall more than 12 years ago. [17] The other factors to take into account is that during this time, up until 2021, there were contested hearings in the Family Court about contact with their daughter. Final orders were made about that on 9 December 2019.6 However, there still seemed to be ongoing disputation about contact by reason of the most recent domestic violence application in August 2021. The applicant deposes that the family law matters were finally resolved by consent in February 2023 and now there should not be any further hostility between them. It is also relevant that their daughter is now about 10 years old and is getting to the stage where her wishes about contact are becoming more and more relevant. [18] The making of the DVO in 2014 which was for a period of only two years, on the contested facts as alleged by Mary, is not of itself sufficient to warrant a rejection of the application. Furthermore, I accept the reasons for agreeing to the order, which is commonly done to avoid the costs of contesting the application, and also to try and defuse the volatile relationship between the parties so parenting arrangements can be put in place for the benefit of the child. 6 Statement of Reasons page 40 -- 4 of 7 -- 5 Traffic History [19] As for the traffic offences, as I indicated the most recent drink driving was a low range reading of .08. This does not make it excusable but it is relevant to whether the applicant is a fit and proper person. Furthermore after this he undertook a Traffic Offender Intervention Program. He says in his affidavit that he found the program helpful and any future offending is unlikely. I accept his evidence on this point. [20] There are other infringements in his traffic history relating to driving over the speed limit but these are spread out over a number of years. The most recent being in 2019 where he lost one demerit point and before that in 2016 where he lost three demerit point. References [21] The application is supported by references from a number of people including profession people and acquaintances.7 They all speak highly of the applicant. A reference from an accountant said: I stand by my opinion that P is a good person and of good character. P is a great father, a loving partner, a hard worker and good friend. P has expressed this through the many actions over the past few months with my ill health. He has never hesitated to assist me with house repairs and maintenance, cooking generally being a good friend. [He] has driven me to medical appointments and assisted with travel. [22] In another reference from a solicitor the following is recorded: There is nothing in my personal or professional knowledge that gives rise to concern regarding pause fitness to operate a firearm. He strikes me as a bright, articulate, level headed, and very grounded in reality. I have no difficulty or reservations in providing this character reference if it assists him. [23] Although not a reference as such, there is a letter from the Rural Fire Service welcoming him as a volunteer firefighter in his local Rural Fire Brigade. This demonstrate his commitment to community service. [24] There are favourable references/reports from his counsellor who assisted him during the family court proceedings. [25] All references are of a similar vein speaking to his good character and acknowledging that he would not be a risk to the community if he held a weapons licence. Expert Report [26] Then there is the comprehensive report of Dr Eshuys. The applicant underwent a number of psychometric tests which included anger management, risk of violence, risk of suicide and responses to a number of questions put to him by Dr Eshuys. Some observations by her are certainly helpful and relevant to the application. [The applicant’s] results on the STAXI-2 psychometric testing in paragraphs 26 to 44 above indicate he has little propensity towards anger (both expressing externally or internalising, and low intensity of anger as an emotional state (State Anger) and low disposition to experience angry feeling as a personality trait (Trait Anger). 7 I don’t propose to name them because of the non-publication order. -- 5 of 7 -- 6 [27] She also commented on his personality traits and says as follows: Finally, [the applicant’s] results on the MCM1-111 clinical and personality testing (paragraphs 33 to 35 above) indicates no enduring or pervasive personality dysfunction or traits and no evidence of emotional, cognitive or inter-personal difficulties. His results also indicate he does not exhibit any clinically significant disorders which is confirmed by his self-report and his counsellors letter. By all accounts, he has never been admitted to a mental health facility, never had the need to be assessed by mental health professionals. I understand he has never been deemed a risk to himself or others. He is not prescribed any medication for psychiatric issues. His efforts to improve the parenting communication and goodwill, especially given the acrimonious nature of his past relationship. [The applicant] prudently sought support of a counsellor and also attended a parenting orders programme. His risk level on the HCR-24 violence is low (paragraphs 35-46 above), on DV recidivism is low (paragraph 47 above) and he has no risk factors for suicide (paragraph 49 – 49) above. [28] Having considered all of the information gathered, bearing in mind that there remained the contested factual issues about the allegations made in the application for the DVO, Dr Eshuys opined: Given [the applicants’ continued stable mental state, his unremarkable scores on the psychometric testing, his prior attendance in counselling and treatment as needed, his improved self-awareness and adequate stress management, and his very low risk score on the risk measures above, it is my opinion that he poses at very low risk to himself, others and the community. I do not consider there to be any real prospect of [the applicant] misusing his weapon should his weapon licence be reinstated therefore, it is my opinion that he is a fit and proper person to hold a weapons licence and exercise continuous and responsible control over firearms. [29] In the last sentence Doctor Eshuys expresses an opinion about to the very issue I have to decide, which generally speaking would carry little weight. However, despite that it is in any event otherwise helpful in determining the correct and preferable decision as required by s 20 of the QCAT Act. Decision [30] The applicant has had a tumultuous past with his former partner in relation to contact with his daughter. It is not my role to make any judgment about that relationship nor is there any evidence other than the DVO, which is relevant to it. The DVO expired more than seven years ago and apart from the latest interaction between Mary and the applicant there have been no other incidents which impact on the applicants character. The drink driving charge has been dealt with and that alone does not render him unfit to hold a weapons licence. [31] I am impressed by the thorough report by Dr Eshuys and it supports my view, together with the favourable references, that the applicant does not present a risk to himself or the public. Considering all of the evidence objectively I have come to the view that the correct and preferable decision is that the applicant is a fit and proper person to hold a weapons licence. I propose to set aside the decision of the authorised officer and instead there will be decision that the applicant be issued with a weapons licence for category A and B firearms for sport and recreational purposes. -- 6 of 7 -- 7 [32] Under s 159 of the Domestic and Family Violence Protection Act 2012 (Qld), publication of any information that is likely to identify a person or witness involved in a proceeding under that Act is prohibited. As one of the main issues in this case involved the making of orders made under that Act I propose to make a non- publication order pursuant to s 66(1)(c) of the QCAT Act. -- 7 of 7 --