Bui v Queensland Police Service – Weapons Licensing [2021] QCAT 64

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bui v Queensland Police Service – Weapons Licensing [2021] QCAT 64 PARTIES: TRUONG SON BUI (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR014-20; GAR094-20 MATTER TYPE: General administrative review matters DELIVERED ON: 17 February 2021 HEARING DATE: 18 September 2020 HEARD AT: Brisbane DECISION OF: Member Traves ORDERS: 1. The decision of 5 November 2019 to suspend the applicant’s licences is confirmed. 2. The decision of 19 February 2020 to revoke the applicant’s licences is confirmed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where decision made to suspend weapons licence on basis of circumstances leading to the issue of an Emergency Evaluation Authority – where circumstances included applicant’s disorientation, extremely poor living conditions, odd and dangerous behaviour – where decision made to revoke licences – where applicant provided qualified medical report – whether sufficient evidence to be satisfied licensee may no longer be a fit and proper person to hold a licence – whether applicant is a fit and proper person to hold a licence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Weapons Act 1990 (Qld), s 3, s 10B, s 28 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 -- 1 of 9 -- 2 Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201 Vega Vega v Medical Board of Australia [2014] QCAT 328 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Sergeant Ayscough, Queensland Police Service REASONS FOR DECISION [1] On 5 November 2019 a decision was made to suspend Mr Bui’s Firearms Licence1 and Concealable Firearms Licence2 for the following reasons: (a) The authorised officer considers, on reasonable grounds, that you may no longer be a fit and proper person to hold a licence due to your current mental fitness. (b) The authorised officer considers, on reasonable grounds, that you may no longer be a fit and proper person to hold a licence due to it not being in the public interest.3 [2] The Information Notice accompanying the Notice of Suspension referred to concerns that had been raised in relation to Mr Bui’s mental health as the result of information received that on 4 November 2019 Mr Bui was subject to an Emergency Examination Authority and admitted to Cairns Hospital after displaying possible signs of dementia. [3] On 5 November 2019 the respondent wrote to Mr Bui suspending his licences and requesting a detailed medical report by a doctor, psychologist or psychiatrist which addressed his present suitability to continue to hold, possess and use firearms held under his licences considering the need to ensure public and individual safety. [4] An undated ‘medical certificate’ was received by the respondent on 27 November 2019. The certificate is undated and certifies that Dr Oliver Eisen of Apple Tree Medical, Smithfield examined Mr Bui on 22 November 2019 and that Mr Bui had been referred to the geriatric specialist at the “Memory Clinic” in Cairns for assessment of capacity. The certificate also states that Dr Eisen had “personally spoken to Geriatrician Dr Edward Strivens about the matter” but that a date for an appointment had not yet been given. [5] Mr Bui applied for review of the suspension decision on 4 December 2019. The review proceedings relating to the suspension decision are GAR014-20. [6] On 19 February 2020 a decision was made to revoke Mr Bui’s firearms licences for the following reasons: 1 Firearms Licence Number 10044253. 2 Concealable Firearms Licence Number 30023186. 3 Suspension Notice dated 5 November 2019. -- 2 of 9 -- 3 (a) The authorised officer is satisfied that you are no longer a fit and proper person to hold your licence due to your current mental fitness. (b) 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.4 [7] The Information that accompanied the Revocation Notice stated, relevantly: I noted your licence was suspended under section 28 of the Act and you were requested to provide advice from a medical specialist, within 21 days, regarding your current suitability to hold a licence as the result of serious concerns being raised in relation to the state of your mental health. … I note you had not applied for an extension of time to the Authorised Officer before the end of the compliance time. I also noted you have failed to provide medical evidence which would indicate you are a fit and proper person to hold a licence. As a result, I considered, from all information available, that it is in the public interest for your licence to be revoked. [8] Mr Bui applied for review of the revocation decision on 11 March 2020. The review proceedings relating to the revocation decision are GAR094-20. [9] On 13 March 2020 the Tribunal made a direction that matters GAR014-20 and GAR094-20 are to proceed together. On 14 April 2020 the Tribunal made directions at a compulsory conference held in respect of both matters requiring Mr Bui to file a Medical Report addressing his fitness to hold a firearm licence by 15 June 2020. The compulsory conference was adjourned to 15 June 2020. [10] The Tribunal made a further direction at the compulsory conference of 15 June 2020 giving Mr Bui a further opportunity to file any medical report that he intended to rely upon within 10 days of the hearing. [11] On 3 July 2020 Mr Bui posted to the Tribunal an unsigned letter by Dr Ramesh Durairaj, Cairns Doctors, to Dr Theodore Frangos, Apple Tree Medical, Smithfield dated 24 June 2020. [12] No other medical report or other information of a medical nature has been received by the Tribunal or the respondent. Background [13] Mr Bui is a 77 year old male who, until his tenancy was terminated, was living in a single bedroom apartment in Kuranda. [14] On 4 November 2019 an electrician attended Mr Bui’s apartment and observed him lying on the floor of his apartment using a mop to clean the walls. Mr Bui had thrown water over the electric sockets which was causing sparks all over the room. The electrician then contacted police who attended the premises, observed Mr Bui and made the decision to transport Mr Bui to the Cairns Hospital for urgent examination 4 Revocation Notice dated 19 February 2020. -- 3 of 9 -- 4 pursuant to s 157B of the Public Health Act 2005 (Qld). Under s 157B, a police officer may transport a person to a treatment or care place if the police officer believes: (1) …— (a) a person’s behaviour, including, for example, the way in which the person is communicating, indicates the person is at immediate risk of serious harm; and Example— a person is threatening to commit suicide (b) the risk appears to be the result of a major disturbance in the person’s mental capacity, whether caused by illness, disability, injury, intoxication or another reason; and (c) the person appears to require urgent examination, or treatment and care, for the disturbance. [15] The Emergency Examination Authority (EEA) form states as follows: Subject is 76 year old male living in a single bedroom apartment in Kuranda. Subject suffers what appears to be dementia and was observed by an electrician on the 4/11/19 laying on the floor of the apartment using a mop to clean the walls. The subject person had thrown water over the electric sockets causing sparks all over the room. The apartment has no electricity and subject male uses candles and a gas burner. Police observed the living conditions to be extremely unliveable, he has no bed, no fridge, no obvious food other than a can of spaghetti. Police contacted Chris Black from Kuranda Mental Health …who agreed subject person should be taken to Cairns on an EEA. … The real estate agent for the unit advised police that it is now condemned and the subject male has been given his notice to move out by the 5/11/19. Police observed the unit to have a very strong mould odour, the male has been sleeping on a pile of what appeared to be rags, there were at least 10 dead cockroaches strewn around the unit. Police observed the floor to be covered in various property and multiple power cords and electrical on the floor. [16] Under the section of the form which asks for the reasons you believe the risk appears to be the result of a major disturbance in the person’s mental capacity, it is stated: Disoriented. Whilst speaking to the subject male he repeated several times that he was sick but he didn’t know why. And kept stating he knew himself and that he was sick. The subject male has no friends or family and no one to look after him. Police believe the male is incapable of looking after himself and is a serious risk of injury or health decrease. -- 4 of 9 -- 5 The law relating to the review [17] The purpose of the Tribunal’s review is to produce the correct and preferable decision, following a fresh hearing of the matter on its merits.5 The Tribunal considers the matter afresh, making its own decision, based on the evidence before it and according to law. In essence, in its review jurisdiction, the Tribunal stands in the shoes of the decision-maker for the decision reviewed and makes its own decision. On review, the tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.6 [18] The entitlement to own and use firearms is regulated by the Weapons Act 1990 (Qld) (‘the Act’). [19] Section 3 sets out the principles and object of the Act: (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. [20] Under s 28 a licence may be suspended, relevantly, if the officer is satisfied that the licensee has been charged with an offence involving the use or threatened use of violence.7 In such a case the licence is suspended until the proceeding for the charge ends or the suspension is lifted by an officer.8 [21] A licence may also be suspended if the officer considers, on reasonable grounds, that the licensee may no longer be a fit and proper person to hold a licence.9 In this case, the suspension continues until the earlier of the following days: (i) the day the authorised officer is satisfied the person is a fit and proper person to hold a licence and lifts the suspension; (ii) the day 90 days after the licence is suspended.10 [22] Under s 29(1)(d) a licence may be revoked if the officer is satisfied of any circumstances listed, including that the licensee is no longer a fit and proper person to hold a licence. [23] Section 10B(1) provides that in determining whether a person is fit and proper the following matters, among other things, must be considered: 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 6 Ibid s 24(1). 7 Weapons Act, s 28(1)(a)(i). 8 Ibid s 28(2)(a). 9 Ibid s 28(1)(b), which refers by Note to s 10B. 10 Ibid s 28(2)(c). -- 5 of 9 -- 6 (a) the mental and physical fitness of the person; and (b) whether a domestic violence order has been made… 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 (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. (emphasis added) [24] The expression ‘fit and proper person’ is not defined in the Weapons Act. It is a term commonly used in statutes and necessarily 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.11 [25] The matters which must be taken into account in considering whether a person is no longer fit and proper to hold a licence, include the public interest. The public interest is a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation.12 [26] It is a term of wide import which has been said to embrace matters, among others: …of standards of human conduct… tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.13 [27] The term ‘public interest’ in the context of weapons licensing should therefore be applied in the context of the object of the Weapons Act which is to prevent the misuse of weapons.14 In furtherance of this object, public and individual safety are to take precedence over weapon possession and use.15 These purposes are achieved, in part, by strict requirements for licensing.16 Accordingly, when considering the public interest in the context of weapons licensing, individual and public safety are important factors to be taken into account. 11 Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, 56. 12 Comalco Aluminium (Bell Bay) Ltd v O’Connor (1995) 131 ALR 657, 681 citing O’Sullivan v Farrer (1989) 168 CLR 210, 216; Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79, [36]. 13 D.P.P. v Smith [1991] 1 VR 63, 75. 14 Weapons Act, s 3(2). 15 Ibid s 3(1)(a). 16 Ibid s 3(1)(b). -- 6 of 9 -- 7 Consideration [28] In this case, although the suspension has ended and the licences since revoked, the suspension decision remains reviewable.17 The application for review of the decision to suspend has been brought in the Tribunal. It was properly made. The Tribunal remains, as a matter of jurisdiction, seized of that matter.18 I note also that there may be utility for an applicant in proceeding with a review despite the period of suspension having ended or the licence having been subsequently revoked. [29] It is conceivable, for example, that a person in Mr Bui’s position may want to be able to say, assuming both reviews are successful, that he or she has never had their licence, or in this case, licences, suspended. [30] That said, in this case, as I am satisfied that Mr Bui is no longer a fit and proper person to hold a firearms licence it follows that I must also be satisfied, for the purposes of the suspension of his licences, that he may not be. [31] There is no evidence to suggest Mr Bui is physically unfit to hold a firearms licence. [32] The issue is whether Mr Bui is mentally fit to hold a firearms licence. [33] It is clear that after the incident witnessed by the electrician on 4 November 2019, the police had such significant concerns about the mental state of Mr Bui that they issued an EEA. Given the objective circumstances they faced on arrival at Mr Bui’s apartment, that concern, in my view, was justified. [34] In any event, because of the concerns raised by the circumstances leading to the EEA, the respondent requested a medical report be provided by Mr Bui addressing his suitability to use and possess a firearm under a firearms licence. [35] Dr Eisen, a general practitioner, provided a medical certificate which merely states that he had referred Mr Bui to the Memory Clinic, had spoken to Dr Edward Strivens, a geriatrician, but that a date for an appointment had not been given at that stage.19 [36] The only medical evidence received by the Tribunal is an unsigned letter from Dr Ramesh Durairaj, Cairns Doctors, to Theodore Frangos, Apple Tree Medical, Smithfield. Dr Durairaj reports that there is no evidence of cognitive decline or any significant issues with amnesia. He records Mr Bui as achieving a MOCA of 28/30, presumably on the day of the consultation. Dr Durairaj states that Mr Bui “denies feeling low but is not keen to open up about his difficulties in this area”, that he has difficulty getting to sleep and has had bad nightmares for a few years. Dr Durairaj states that the poor condition of Mr Bui’s apartment was explained by Mr Bui to be as a result of the landlord’s refusal to fix major damage to the roof. Dr Durairaj also makes the following observation: Son seems to be afraid of people snooping on him constantly and trying to harm him. He had rigged his accommodation with non-working camera as deterrent and may have set up traps in the house. He started doing it after he noticed a man, X1 [as told by Son] took pictures of his block from 8:55am to 9am on Monday the 6 th March 2016 [Son’s words!]. This he says is at the instruction of 17 Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201, [21]. 18 Vega Vega v Medical Board of Australia [2014] QCAT 328. 19 Medical Certificate by Dr Oliver Eisen, undated. -- 7 of 9 -- 8 a Mr B who knew Son very well and had a quarrel with him once before. He cannot explain what they could do with the pictures taken to harm him. He had reported this to the police and to the local MP of Mareeba. He also had another occasion when a man and a woman were sent to snoop on him after he complained about the library services to Mareeba MP. [37] Under the heading “Impression” Dr Durairaj states: I do not think that Mr Son shows any sign of cognitive decline and does not need any intervention/investigations towards it even on account of his pursuit to reclaim his licence. However, he will need an assessment from Psychiatrist to understand [whether] his borderline paranoid behaviour is significant enough to stop him from reaching his licence. (emphasis added) [38] Under the heading “Plan” Dr Durairaj states: No cognitive concerns. Kindly refer for a mental health evaluation to see if he satisfies the criteria to hold handgun licence, please. (emphasis added) [39] It is not clear that any mental health evaluation or consultation with a psychiatrist, as recommended by Dr Durairaj, was undertaken. The Tribunal was not advised of any such evaluation or appointment having taken place. [40] During the hearing, Mr Bui appeared distressed about the revocation of his firearms licences, highly agitated and, at times, confused. He spoke of using his guns in a “tunnel” under his house but at other times stated that he went to a pistol club, although he had not been there for more than 10 years because it is 100km away. [41] Mr Bui also raised concerns that he had with people following him and spying on him. He said he had installed CCTV and had captured the face of the person taking photos of his place. He initially said it had occurred two months ago but later said it occurred in 2016 and 2017 but that the police had not done anything about it. [42] He says he has owned his gun for 13 to 14 years. [43] On balance, given that the only medical evidence is the qualified report from Dr Durairaj, I am not satisfied that Mr Bui is a fit and proper person to hold a licence. The letter provided by Dr Durairaj recommends that Mr Bui see a psychiatrist for further evaluation and falls short of evidence that Mr Bui is a fit and proper person for the purposes of the Weapons Act. [44] Mr Bui asked the Tribunal during the Hearing whether everybody has to provide a medical report. The answer is no. The reason Mr Bui was required to provide one was because of the circumstances leading to the EEA. Those circumstances were enough, in my view, for the decision maker to be satisfied that Mr Bui may not have been a fit and proper person to hold a licence. [45] Mr Bui, practically, had then to provide evidence of his mental fitness to hold a licence. This has been referred to as a practical onus.20 Mr Bui was given every opportunity to put before the decision maker sufficient medical evidence to make out his case but did not do so. 20 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [27]-[36]. -- 8 of 9 -- 9 [46] As I am unable to conclude, based on the material before me, that Mr Bui is currently mentally fit to hold a licence, I am satisfied that Mr Bui is not a fit and proper person to hold a firearms licence at this point in time. [47] In the circumstances, the correct and preferable decision is to confirm both the suspension decision and the revocation decision. Conclusion [48] In conclusion, having considered the factors in s 10B of the Weapons Act, evidence given before and during the Hearing, as well as having had the opportunity to speak to Mr Bui during the Hearing, albeit with the assistance of an interpreter, I am satisfied, for the purposes of the revocation decision, that Mr Bui is no longer a fit and proper person to hold a licence, and, for the purposes of the suspension decision, that he may not be a fit and proper person to hold a licence. [49] Accordingly, I confirm the decisions under review. -- 9 of 9 --