CTA v Queensland Police Service [2018] QCAT 440

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CTA v Queensland Police Service [2018] QCAT 440 PARTIES: CTA (applicant) v QUEENSLAND POLICE SERVICE (respondent) APPLICATION NO/S: GAR205-14 MATTER TYPE: General administrative review DELIVERED ON: 13 December 2018 HEARING DATE: 27 November 2018 HEARD AT: Brisbane DECISION OF: Member Dr Collier ORDERS: The Application is refused. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – when evidence may be excluded – evidence that may be considered under the Weapons Act 1990 (Qld) – evidence that may be considered under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) EVIDENCE – ADMISSIBILITY – GENERAL PRINCIPLES – illegally obtained evidence – rules under Bunning v Cross (1978) 141 CLR 54 – rules concerning admissibility in civil matters – whether evidence should be excluded Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28, s 28(3), Chapter 2 Part 1 Division 3 Weapons Act 2009 (Qld), s 3, s 10B, s 10B(1), s 29, s 29(1), s 29(1)(b), s 29(1)(d), s 153, Schedule 2 Bunning v Cross (1978) 141 CLR 54 Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 R v Borg [2012] VSC 26 R v Hammond (2016) 258 A Crim R 323 -- 1 of 9 -- 2 APPEARANCES & REPRESENTATION: Applicant: M White, instructed by Butler McDermott Lawyers Respondent: R Paz Landim, Senior Constable REASONS FOR DECISION [1] Noting that orders were made by the Tribunal on 11 April 2017 in matter APL302- 15 prohibiting the publication of the identity of the applicant in certain matters, the Applicant in this decision has been de-identified. [2] The Applicant’s weapons licence was revoked by the Queensland Police on 22 May 2014. Following various hearings and appeals dating back to 2015, the Applicant is now waiting for this Tribunal to conduct a review of the original decision of the Respondent to revoke his weapons licence. [3] The substantive matter has yet to be decided by this Tribunal. The instant issue before the Tribunal is an application by the Applicant for certain material to be excluded from consideration by the Tribunal in its review of the Respondent’s decision. In particular, the Applicant seeks: That pages 3 to 43 (inclusive) of the Respondent’s material filed in this proceeding on 5 March 2018 be excluded from consideration by the Tribunal [4] The Applicant seeks to have the material identified (hereafter, the ‘impugned evidence’) excluded on the basis that it pertains to evidence obtained as a consequence of an unlawful search carried out on his property on 13 July 2017. [5] Briefly stated, the Queensland Police conducted a search of the Applicant’s property on 13 July 2017 according to the terms of a warrant in the belief that weapons offences were occurring at this property. For reasons to do with carelessness, the warrant relied upon to perform this search, on its face, expired on 12 July 2017. [6] Notwithstanding the fact that illegal weapons were seized by police during the search, the Applicant was not prosecuted for the apparent offences because of the error in dates on the face of the warrant. The Applicant’s position [7] The Applicant says that the impugned material should be excluded for the following reasons:1 (a) The curial rules of evidence afford useful guidance to Tribunal albeit that they are not binding on the Tribunal; (b) The rules developed concerning the admissibility of unlawfully or improperly obtained evidence should not be disregarded by the Tribunal; 1 Summarised from the Applicant’s two submissions dated, respectively, 14 August 2018 and 16 October 2018, and oral presentation by the Applicant’s Counsel. -- 2 of 9 -- 3 (c) The Tribunal should not be seen to condone or approve a disregard of the law by the police; (d) By admitting the impugned material the prejudice to the Applicant outweighs the public interest associated with furtherance of the objects of the Weapons Act;2 (e) When making the original decision to revoke the Applicant’s weapons licence the original decision-maker did not have before him the impugned material; and (f) When making a decision the balance of the public interest weighs against decision-makers using evidence that has been unlawfully obtained. The Respondent’s position [8] The Respondent says that the impugned material should not be excluded for the following reasons:3 (a) When making a decision concerning an application for a weapons licence an authorised officer may consider anything at the officer’s disposal; (b) Possession of a weapon is a privilege which should yield to the need to ensure public and individual safety; and (c) The offending history of the Applicant concerning weapons raises a genuine issue of public interest. [9] The Respondent asserted during the hearing that the Applicant is not a fit and proper person to be the holder of a weapons licence. The truth of that assertion was not tested in this hearing but is a matter for consideration during the hearing of the substantive matter, but it is a factor that the Respondent is likely to raise. Analysis [10] The substantive matter here involves the Tribunal reviewing a decision made by another entity under an enabling Act.4 It is a case where the Tribunal exercises its review jurisdiction in accordance with Chapter 2, Part 1, Division 3 of the Queensland Civil and Administrative Act 2009 (‘QCAT Act’). In this case the enabling Act is the Weapons Act 1990 (Qld) (‘Weapons Act’), and the entity making the original decision was an authorised officer.5 [11] In making its decision on review the Tribunal stands in the place of the original decision-maker to undertake a fresh hearing on the merits and is required to make a decision that is correct and preferable.6 Clearly the Tribunal must have access to any 2 Weapons Act 1990 (Qld). 3 Summarised from the Respondent’s submission dated 25 September 2018 and the oral presentation of Sen Const Paz Landim. 4 The power of the Tribunal to review the decision is granted under s 142 of the Weapons Act. 5 Defined in s 153 of the Weapons Act. 6 QCAT Act, s 20. -- 3 of 9 -- 4 information that could have been or was considered by the original decision-maker, plus any other material that becomes available and may be lawfully considered. [12] The relevant decision here involves the revocation of the Applicant’s licence. This decision appears to have been effected according to s 29 of the Weapons Act. Section 29(1) permits an authorised officer to revoke a licence if the authorised officer is satisfied of any of the following things: (a) the licence has been obtained through fraud or deception; (b) the licensee has been convicted of an offence against any law in force in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon; (c) the licensee has contravened a condition, participation condition or special condition of the licence; (d) the licensee is no longer a fit and proper person to hold a licence. Note—Section 10B states matters for consideration. [13] Sections 29(1)(b) and (d) appear to have been relied upon by the original decision- maker in the case of the Applicant. The note to the section refers to s 10B as setting out the relevant factors that may be taken into consideration when making a revocation decision in relation to subsection (d), that the licensee is no longer a fit and proper person to hold a licence. Insofar as relevant here, s 10B(1) says: (1) In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things— … (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. [14] The language of the legislature here is mandatory: ‘In deciding or considering … whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things …’. The decision-maker is required to consider the things then listed, ‘among other things’. They are not simply permitted to consider the matters listed, they must do so, and are given wide purview to consider ‘other things’. [15] The things that must be considered include ‘criminal intelligence or other information’ providing they indicate a relevant risk to public safety or the public interest. Criminal intelligence is defined in Schedule 2 of the Weapons Act as: criminal intelligence, in relation to a person, means any information about the person’s connection with or involvement in criminal activity. -- 4 of 9 -- 5 [16] Criminal intelligence can be gathered from a large number of sources, many of which may not be known to the final user of the intelligence. Indeed, the quality of intelligence can be highly variable – it is the decision of the analyst and user as to the weight to be given to any piece of intelligence for a particular purpose. There is no assurance that intelligence may have been gathered lawfully, although the entitlement to gather and use it gives no licence to act unlawfully. Intelligence is usually one information source among many. [17] Whether the criminal intelligence or other information indicates the person is a risk to public safety or that authorising the person to possess a weapon would be contrary to the public interest is a test that could only be met once the criminal intelligence or other information has been assessed by the decision-maker. Denying the ability of the decision-maker to read and assess the impugned material means that what could be useful information could not be assessed for relevance, much less included in the decision-making process. [18] The language and intent of the legislature encouraging the use of all available information sources when making a decision concerning revocation of a weapons licence is sufficiently clear. [19] This Tribunal is given great latitude by the legislature in relation to the evidence it may consider when making a decision. In regard to evidence, s 28(3) of the QCAT Act says: (3) In conducting a proceeding, the tribunal— … (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and (c) may inform itself in any way it considers appropriate; and … (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. [20] In addition to the wide discretion given to the Tribunal to consider all pertinent material, it is also relevant that the substantive matter involves a civil, not criminal, issue. Evidence will be assessed against the civil test of balance of probabilities and not the higher criminal test. Further, the Tribunal will comprise a legally qualified person sitting alone who is capable of assessing the value of evidence and giving it appropriate weight. The risk of a jury being influenced by prejudicial evidence does not arise. [21] Based on this survey of the law, the case against admitting the impugned evidence would have to be very strong for this Tribunal to make an interlocutory decision against material being admitted into evidence for consideration by the Tribunal. -- 5 of 9 -- 6 The curial rules of evidence [22] The principal Australian rules concerning the admissibility of improperly or illegally obtained evidence are expounded in the High Court case of Bunning v Cross (1978) 141 CLR 54. Bunning v Cross involved a question of whether evidence comprising a breath sample for the presence of alcohol, where that evidence had been illegally obtained, should have been excluded by the magistrate in making a decision as to conviction. [23] The judgment of Mason and Aickin JJ, with whom Barwick CJ concurred as to the formulation of the rules, stated them as being:7 36. If the unlawfulness was merely the result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant's conduct this must be of significance in any exercise of discretion. Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it. 37. The second matter to be noted is that the nature of the illegality does not in this case affect the cogency of the evidence so obtained. Indeed the situation is unusual in that the evidence, if admitted, is conclusive not of what it demonstrates itself but of guilt of the statutory offence of driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle. 38. To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist. 39. Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by any illegality, is available to the prosecution at the trial the case for the admission of evidence illegally obtained will be the weaker. This is not such a case, due to the mistaken reliance of the police, when they first intercepted the applicant, upon what they thought to be their powers founded upon … 40. A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question. A deliberate "cutting of corners" would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could 7 pp 79, 80; Jacobs J not deciding the point, and Murphy J dissenting. -- 6 of 9 -- 7 easily have lawfully required him to do, had they troubled to administer an "alcotest" at the roadside, has little significance. There seems no doubt that such a test would have proved positive, thus entitling them to take the appellant to a police station and there undergo a "breathalyzer" test. Although ease of compliance with the law may sometimes be a point against admission of evidence obtained in disregard of the law, the foregoing, together with the fact that the course taken by the police may well have been the result of their understandably mistaken assessment of the condition of the applicant, leads us to conclude that it is here a wholly equivocal factor. 41. A fourth and important factor is the nature of the offence charged. While it is not one of the most serious crimes it is one with which Australian legislatures have been much concerned in recent years and the commission of which may place in jeopardy the lives of other users of the highway who quite innocently use it for their lawful purposes. Some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required by Ireland's Case [1970] HCA 21; (1970) 126 CLR 321. 42. Finally it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power to require a motorist to attend a police station and there undergo a "breathalyzer" test. This last factor is, of course, one favouring rejection of the evidence. However it is to be noted that by the terms of s. 66 (1) the legislation places relatively little restraint upon "on the spot" breath testing of motorists by means of an "alcotest" machine. It is essentially the interference with personal liberty involved in being required to attend a police station for breath testing, rather than the breath testing itself (albeit by means of a more sophisticated appliance), that must here enter into the discretionary scales. [24] In summary, when considering the admissibility of illegally or improperly obtained evidence in respect of a criminal charge, the decision-maker is required to balance a series of interests, including: (a) A mistaken assessment by police concerning the inferences to be drawn from what they observed, providing such mistakes do not arise from deliberate or reckless disregard of the law; (b) The cogency of the evidence so obtained, balanced against whether the illegality in obtaining it has been either deliberate or reckless; (c) Where the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors balanced against the desirability of bringing wrongdoers to conviction; (d) The ease with which the law might have been complied with in procuring the evidence in question, with a deliberate ‘cutting of corners’ tending against the admissibility of evidence illegally obtained; (e) The nature of the offence charged; and (f) The extent to which the legislature has limited the power of the police. -- 7 of 9 -- 8 [25] In every case of this type the decision-maker has to balance the competing interests of the individual against intrusion from the State. The evidence in this case [26] Section 3 of the Weapons Act makes it sufficiently clear where the balance of interests lay in this case: (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. [27] Parliament has made it sufficiently clear that the public interest is paramount in relation to weapons possession. As the Respondent put it at the hearing, weapon possession is a privilege, not a right. [28] The instant case is not a criminal case. It involves a person’s entitlement to a licence to possess weapons. The NSW Court of Appeal held in Polycarpou v Australian Wire Industries Pty Ltd (1995) 36 NSWLR 49 that the discretion of a court in a criminal trial to exclude relevant evidence whose prejudicial effect outweighs its probative value does not apply to civil trials. While this case is persuasive, although not binding on this Tribunal, it accurately describes the fact this Tribunal does not have to balance the probative value of the evidence against its prejudicial value. It is sufficient that the evidence satisfies the Bunning v Cross principles. [29] A recent decision of the Queensland Supreme Court, R v Hammond (2016) 258 A Crim R 323, involving a serious criminal matter found that information gathered pursuant to an unlawful entry was ‘… outweighed by the broader community interest in ensuring police do not think they can behave like this towards citizens in their own homes when investigating a mere traffic matter’. But the facts of this case included the fact that the police entry was made without authority or warrant, and was made on the pretext of investigating a minor offence. [30] A persuasive Victorian case involving defective warrants pursuant to a murder inquiry is closer to the current instance (although a criminal matter). In R v Borg [2012] VSC 26, unreported, Lasry J allowed the evidence obtained by warrants that had not been properly sworn to be admitted into evidence. He said: ‘… I am satisfied that in this case the desirability of admitting the evidence obtained pursuant to these warrants outweighs the undesirability of admitting it …’. [31] While this Tribunal does not have to weigh the probative value of the evidence against its prejudicial value, it does have to weigh competing public interests. In this case, the right of a person not to be subject to arbitrary search against the public interest in preventing the misuse of weapons. -- 8 of 9 -- 9 [32] In this case I am satisfied that the conduct of the police in executing a defective search warrant was inadvertent and not intentional. The police conduct may have been careless, but it was not deliberate or reckless. [33] I am further satisfied that the evidence obtained in reliance on the defective warrant is cogent evidence and its use in the substantive hearing is justified under the Bunning v Cross rules. Allowing its use in this case does not encourage future illegal conduct by the police. [34] In this case the public interest in controlling access to weapons has been made clear by Parliament. The conduct of the Applicant involved ignoring a law that Parliament appears to treat with great concern so that, balancing the public interest involves considering controlling the entitlement to possess weapons against the Applicant’s own illegal conduct, as well as the public interest against encouraging illegal State behaviour. In this case, the balance of the public interest is in having this Tribunal receive and consider the evidence that the Applicant seeks to have excluded. [35] The Applicant expressed concern that the impugned evidence was not known to the original decision-maker when making the decision to revoke the Applicant’s weapons licence and, as a result, should not be considered by the Tribunal in its review. This Tribunal, which stands in the shoes of the original decision-maker, should have all relevant material before it when making its decision and is not constrained to make a decision based only on the facts known to the original decision-maker. The Tribunal has wide discretion concerning the evidence it may consider as provided in s 28(3) of the QCAT Act which says: (3) In conducting a proceeding, the tribunal— … (b) is not bound by the rules of evidence …; and (c) may inform itself in any way it considers appropriate; and … (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. [36] While the Respondent expressed the view that the Applicant had little or no sound basis on which to seek to have the impugned evidence excluded, there is a sufficient basis to accept that the Applicant was entitled to ask that this matter be considered. While I have contemplated reserving the costs in this Application for consideration by the decision-maker of the substantive issue, I conclude that, on balance, the Applicant was entitled to have this matter adjudicated and to make no costs order. Decision [37] The Tribunal makes the following decision in this matter: (a) The Application is refused. -- 9 of 9 --