Anderson v Queensland Police Service – Weapons Licensing [2023] QCAT 64

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Anderson v Queensland Police Service – Weapons Licensing [2023] QCAT 64 PARTIES: RYAN JAMES ANDERSON (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR274-22 MATTER TYPE: General administrative review matters DELIVERED ON: 22 February 2023 HEARING DATE: 21 February 2023 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the respondent dated 30 May 2022 is set aside CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS- LICENCES AND REGISTRATION – REVOCATION OF LICNCE – where applicant charged with offences including a weapons offence – where applicant admitted offending – where no conviction recorded – where weapons licence revoked – whether licensee a fit and proper person to hold a weapons licence – whether in the public interest. Queensland Civil and Administrative Tribunal Act s 20 Weapons Act 1990 s 3 and s 10B Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11. Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 APPEARANCES & REPRESENTATION: Applicant: The applicant appeared in person Respondent: Acting-Sergeant Bauer for the respondent REASONS FOR DECISION [1] The applicant lives on a small rural property at Goldsborough in Far North Queensland with his partner. They run a small herd of cattle on the property, and also -- 1 of 4 -- 2 intend growing commercial passionfruit. He also works in a nearby mine and is subjected to regular drug screening at the mine site. [2] He was issued with a weapons licence for category A and B weapons on 2 July 2020. The licence is endorsed for recreational use and as a member of a shooting club. He contends that he also needs a firearm for the destruction of feral animals, such as pigs, on the property. Recently, he would have used his firearm to put down a dying bull if he had access to his firearm. [3] The reason he could not use his weapon was because on 30 May 2022 the Queensland Police Service, weapons licensing branch, revoked his weapons license. The revocation came about because he was charged with a number of offences after police attended his property on 19 December 2020. The charges, in summary, included: (a) Producing and possessing a dangerous drug; (b) Unlawful possession of a restricted drug; (c) Unlawful possession of a weapon; (d) Possessing a restricted item. [4] The charges were heard in the Magistrates Court in Cairns on 4 January 2021. The applicant pleaded guilty and was fined $800.00. No conviction was recorded. Particulars of the offences are set out in the Court Brief included in the respondent’s material.1 I will return to the particulars later in these reasons. [5] As a consequence of the pleading guilty to the charges, an authorised officer of the QPS decided that the applicant was not a fit and proper person to hold a weapons licence and a revocation notice issued to him. The applicant then filed an application to review the decision of the QPS, and in support of the application he has filed a short statement explaining his background, his current circumstances and the need for his licence. [6] In reviewing the decision of the QPS the Tribunal’s function is to produce the correct and preferable decision by way of a fresh hearing on the merits.2 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 decisionmaker, and make another decision afresh”. Of course, the evidence of both the applicant and the QPS is relevant in coming to the correct and preferable decision. [7] The issuing of a weapons licence to an individual is governed by the Weapons Act 1990. 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 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 1 Exhibit 3 2 Queensland Civil Administrative Tribunal Act, s.20. 3 Weapons Act 1990 s 3 -- 2 of 4 -- 3 (ii) That authorising the person to possess a weapon would be contrary to the public interest; and (d) the public interest [8] 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 [9] 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, or alternatively whether it should be revoked. [10] As to the charges to which he pleaded guilty, Acting-Sergeant Bauer conceded at the hearing that the most serious charge was being in possession of a weapon for which he was not licensed. This related the police locating a shotgun in the applicant’s gun safe with his licenced firearms. When questioned about this he told police he was holding it for a friend with the intention of acquiring it through the correct process of a Permit to Acquire. At the hearing, he informed the Tribunal that he had completed a Permit to Acquire and the disposer had signed it but the timeframe to lodge it had expired before providing it to police. Although no character references have been provided, I have had regard to his filed statement, his employment history and personal circumstances and have no reason not to accept his evidence on this point. Importantly, the weapon was secured in the gun safe and he was forthright in cooperating with the police, not only on this matter but the other charges as well. [11] In respect of the dangerous drugs, this related to a single cannabis plant growing in a pot sitting on the front stairs. The plant was about 30cm high. The applicant told police he grew it from a seed and thought it legal to have solitary plant. That was obviously wrong. Also of importance, he told the Tribunal that because he works at a mine site he is regularly screened for drug use and therefore would not use the plant for recreational purposes. Even so, possession of a single plant would not necessarily satisfy the criteria of not being a fit and proper person. Although, it is necessary to consider the totality of the charges. [12] The third category of possession relates to steroid substances. There was a small quantity of “testo Med Testosterone enanthate” and “Gonadotrophic hormone” which are Schedule 4 drugs or restricted drugs. These steroid substances were purchased online. The applicant said the steroids were for personal use to improve body substance and image. He was questioned whether he had purchased more of these types of drugs online but denied doing so. It seems the respondent had some intelligence to the contrary but no evidence was produced. I am prepared to accept his evidence on this point for the same reason I accept his evidence on the Permit to Acquire. [13] The final charge related to possession of a restricted item, which was a crossbow. There was no dispute that the crossbow was inoperable, there were no arrows to use with it and had been in the shed for years. In addition, although the applicant claimed it was his, and pleaded guilty to its possession, Fiona Anderson has filed a statement in the proceeding saying that it was in fact her property When asked about this 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 4 -- 4 contradiction by A-S Bauer during the hearing, the applicant said he did not want to involve Ms Anderson when the police attended. [14] When one has regard to the particulars of all the charges against him, it is not surprising that no conviction was recorded in the Magistrates Court. [15] A traffic history has also been provided. However, little reliance was placed on that, the most recent breach being in 2015. Only two of the offences relate to excessive speed. The other relate to excessive noise and vehicle faults. [16] Because of the basis upon which he says he has a need for a weapons licence is to control feral animals and vermin he was asked by A-S Bauer why he has not applied for a licence on occupational ground. He was honest and forthright in saying that he did know that he could. This may indicate some unfamiliarity with the weapons legislation, but it is not critical to the determination of this application. There are many categories of licenses under the Act. [17] Having considered all of these matters, in particular the seriousness of the charges, I have come to the view that they do not establish that the applicant is not a fit and proper person to hold a weapons licence. He has cooperated with police, been honest and forthright in providing an explanation for his conduct, in particular the possession of the unregistered weapon. He pleaded guilty to all charges which is also taken into account. He has a sound background in employment and save for these minor offences he is a law abiding citizen. [18] In my view, there is no evidence that would indicate that the public interest would, in all the circumstances, be at risk if the applicant were to hold a weapons licence. Orders [19] The decision of the respondent dated 30 May 2022 is set aside. -- 4 of 4 --