CFD v Queensland Police Service - Weapons Licensing [2017] QCAT 372

CITATION: CFD v Queensland Police Service – Weapons Licensing [2017] QCAT 372 PARTIES: CFD (Applicant) v Queensland Police Service – Weapons Licensing (Respondent) APPLICATION NUMBER: GAR173-17 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: A/Senior Member Browne DELIVERED ON: 1 November 2017 DELIVERED AT: Brisbane ORDERS MADE: 1. The application to stay the decision dated 20 June 2017 by the Queensland Police Service – Weapons Licensing is refused. 2. Other than to the parties to the proceeding and until further order of the Tribunal, publication of any information that may identify the name of the applicant, the applicant’s family and the complainant is prohibited. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – where applicant’s firearms licence suspended – where applicant applied for a stay of the decision – where applicant charged with rape, sexual offences – whether a stay should be granted Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 66 Weapons Act 1990 (Qld), s 3, s 10B, s 28 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 -- 1 of 8 -- 2 Erathnage v Medical Board of Australia [2016] QCAT 418 Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] CFD held a firearms licence until a decision was made to suspend his license.1 [2] CFD applied to the Tribunal to review the decision to suspend his licence. He also applied to stay the decision.2 [3] On 6 September 2017 I refused CFD’s application to stay the decision dated 20 June 2017 by the Queensland Police Service – Weapons Licensing (‘the QPS’). CFD has requested reasons for my decision that are now set out below. Background to the reviewable decision [4] Under the Weapons Act 1990 (Qld) (‘Weapons Act’) an authorised officer may suspend a licensee’s licence, in this case CFD’s license, if the authorised officer considers, on reasonable grounds, that the licensee may no longer be a fit and proper person to hold a licence.3 [5] In this case CFD was charged with the offences of sexual assault and rape on 19 June 2017. The offences are alleged to have taken place in early July 2015 while the complainant was a student undertaking voluntary work experience with CFD.4 [6] In the information notice, the QPS decision-maker sets out the reasons for the suspension decision. The information notice identifies the following: a) CFD has been charged with offences involving the use or threatened use of violence; and b) CFD may no longer be a fit and proper person in accordance with the legislation to hold a weapons licence. 1 Decision made on 20 June 2017 under s 28 of the Weapons Act 1990 (Qld) (‘Weapons Act’). 2 Application to stay a decision filed on 5 July 2017. 3 Weapons Act, s 28. 4 Affidavit of CFD sworn 12 July 2017, Attachment “[CFD]6”. -- 2 of 8 -- 3 [7] The decision-maker determined that it is in the public interest for CFD’s licence to be suspended until the Court matters have been finalised. [8] The Weapons Act provides that there are certain matters that must be taken into consideration when determining if a licence holder is no longer a fit and proper person for the issue, renewal, suspension or revocation of a weapons licence, including the public interest.5 [9] In written submissions, CFD submits that he committed no criminal offence and says that the sexual activity that occurred between him and the complainant was consensual.6 [10] CFD says that he has no criminal history, is married with children and has a successful business which requires the use of weapons.7 [11] CFD says that the QPS were aware of the allegations prior to CFD being charged on 19 June 2017 because the complainant provided a statement to the QPS on 5 August 2015. CFD contends that it could be inferred (therefore) that from 5 August 2015 until 19 June 2017 the authorised officer was of the opinion that CFD was a fit and proper person within the meaning of the Weapons Act.8 [12] CFD accepts that the criminal charges themselves involve violence (being sexual violence) but says that it is clear from the allegation that no additional force or threat was used to overcome consent (referring to the definition of consent under s 348 of the Criminal Code Act 1899 (Qld), Schedule 1 – the Criminal Code).9 [13] CFD submits that the decision-maker has placed undue weight upon CFD being charged. CFD says that the decision-maker has based the reasonable belief of not being a fit and proper person solely on the charging of CFD.10 [14] CFD also contends that he has good prospects of succeeding in setting aside the reviewable decision on the basis that the decision-maker erred.11 CFD says that in all of the circumstances he is a fit and proper person, notwithstanding being charged. CFD says that the decision-maker has erred in failing to consider that the authorised officer believed that CFD was a fit and proper person within the meaning of s 10B, notwithstanding a formal statement alleging sexual misconduct being in possession of the QPS from August 2015. Finally, CFD says he should be afforded a stay to protect his interest and that of the wider community which relies upon him. 5 Weapons Act, s 10B. 6 Outline of argument filed 13 July 2017, [5]. 7 Ibid, [6]. 8 Ibid, [8]-[10]. 9 Ibid, [11]-[12]. 10 Ibid, [15]-[19]. 11 Ibid, [27]. -- 3 of 8 -- 4 [15] The QPS opposes the granting of a stay. The QPS submits that the suspension is authorised by virtue of s 10B and s 28(1)(a)(i) and (b) of the Weapons Act in that the authorised officer is satisfied that CFD has been charged with an offence involving the use or threatened use of violence.12 [16] In response to CFD’s submissions filed about the QPS being aware of the complaint since 5 August 2015, the QPS says that CFD was not charged until 19 June 2017. The QPS says that to initiate the suspension of a person’s weapon’s licence on the making of a complaint without the matter being investigated and prior to a person being charged, unless exceptional circumstances existed, ‘would be unfitting’.13 [17] The QPS also says in relation to the allegations giving rise to the charges and CFD’s submission in support of the stay application, that when the complainant was questioned by her friend as to why she did not punch CFD, the complainant said that she and CFD were alone on the property and he ‘had a gun in his car’.14 What is the Tribunal’s power to grant a stay? [18] The Tribunal may grant a stay if the Tribunal considers that the order is desirable having regard to certain matters.15 The matters to be considered include the interests of the person who may be affected by the refusal of a stay, any submissions made by the decision-maker and the public interest. [19] In Erathnage v Medical Board of Australia,16 the Tribunal said that s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) gives the Tribunal power to stay the operation of a decision if a proceeding for a review of the decision has started under the QCAT Act. The Tribunal said a stay may only be granted if the order is ‘desirable’ having regard to the matters set out in s 22(4).17 The Tribunal said this involved the exercise of a broad discretion and may include a consideration of other matters such as whether there is an arguable case.18 In Erathnage’s case, the Tribunal referred to Deputy Commissioner Steward v Kennedy.19 In Kennedy’s case, the Appeal Tribunal said that the ordinary principles that apply to the granting of stays include the ‘fundamental questions’ of whether the applicant has an arguable case and whether the balance of convenience favours the granting of a stay.20 [20] In this case CFD has identified some contentions that are relevant to the review proceeding and the Tribunal may consider those contentions in 12 Written submissions filed 18 July 2017. 13 Ibid, p 4. 14 Ibid, p 5. 15 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 22. 16 [2016] QCAT 418. 17 Ibid, [22]. 18 Ibid, [23]. 19 [2011] QCATA 254. 20 Ibid, [22]. -- 4 of 8 -- 5 determining on review whether CFD is no longer a fit and proper person to hold a licence. I accept that the criminal charges have not been properly tested before a Court and CFD may elect to defend the criminal proceedings. [21] I do not accept CFD’s submission that a stay is in the public interest and that he should be afforded a stay to protect his interest and the wider community. [22] CFD relies on sworn evidence and supporting material in relation to his stay application. CFD says he is required to hold a weapons licence as part of his work. CFD has provided no material in support of his submission that while his licence is suspended he can no longer provide a necessary service to his clients. CFD says he employs three other professionals and one of them does not possess a weapons licence to his knowledge. CFD does not say in his written submissions or present any evidence in relation to whether or not the other professional persons employed by him hold a weapons licence and whether or not the other professional persons employed are able to travel to other regions to service and support CFD’s business. [23] CFD deposes in his affidavit to other professional activities that he performs that he says have been affected by the suspension of his weapons licence. CFD refers to a letter from Blue Card Services, requesting notification (from him) as to why his blue card should not be cancelled. CFD says that he needs a blue card because he is dealing with children, and says that if he is unable to volunteer his services, the community will question his non- involvement and this could impact on the viability of his practice. [24] I accept CFD’s sworn evidence that he has volunteered his services to the community for many years. There is no evidence before me, however, in support of his submission that the decision to suspend his weapons licence will result in a decision made under the Working with Children (Risk Management and Screening) Act 2000 (Qld) to cancel a blue card that he may hold. Notwithstanding, if such a decision was made under the relevant legislation, CFD would have review rights under the Working with Children (Risk Management and Screening) Act 2000 (Qld). [25] CFD says that because of the remote area where he sometimes lives with his family, he was (in July 2017) unable to put an animal out of its pain and suffering because his weapons licence had been suspended.21 CFD does not say in his written submissions, or present any evidence as to, whether or not this occurrence (in July 2017) was solely attributed to the suspension of his weapons licence. CFD refers in his affidavit to the property as being a property where he recently spent the school holidays with his family. CFD does not say that the property is his primary place of residence and he is 21 Affidavit of CFD sworn 12 July 2017, p 4. -- 5 of 8 -- 6 otherwise required to put an animal out of its pain on a regular basis at that property. [26] CFD says he has held a weapons licence since 1990 and has been around firearms since he was a child living on a property in remote Queensland. CFD says he owns a dart gun for tranquilising certain animals and there are no other professionals in his area that have the ability to offer this service. CFD says this is the first time he has had any adverse dealings with weapons licensing. [27] I accept CFD’s submissions that he has many years’ experience with weapons and has no previous adverse dealings with weapons licensing. These matters as well as other contentions raised by CFD may be matters that he may elect to raise before the Tribunal on review in determining the substantive proceedings. [28] The mater before me now is whether it is desirable to grant a stay of the decision to suspend CFD’s weapons licence. I am not satisfied based on all of the material before me, including CFD’s sworn evidence and the sworn evidence of the local Catholic Parish Priest, that it is desirable to grant a stay. [29] The allegations giving rise to the charges are serious. CFD accepts that sexual activity occurred between him and the complainant but says it was consensual. CFD accepts that he spoke to the complainant after the incident on the telephone and apologised for his conduct because, as stated by him, ‘I was embarrassed about being unfaithful to my wife’.22 [30] CFD argues that he will be found innocent of the charges. The proper jurisdiction to determine the charges is the criminal courts and it is a matter for CFD as to whether he defends the criminal charges. [31] I accept the sworn evidence of the local Catholic Parish Priest who attests to CFD’s good character and contributions to the community. Again, these are matters that CFD may consider raising before the Tribunal on review in determining the substantive proceeding. [32] I accept that CFD has an arguable case. CFD will have an opportunity to present his evidence and any material relevant to the review application that will be determined by the Tribunal at a final hearing. [33] I am not satisfied based on all of the material before me that CFD will be unable to provide a necessary service to his clients if a stay is not granted. CFD has made no submission as to any financial detriment arising by reason of the suspension and I am not satisfied based on the material filed by CFD that he will not be able to service his clients if the stay is refused. 22 Affidavit of CFD sworn 12 July 2017, p 7. -- 6 of 8 -- 7 [34] CFD has not been found guilty of any offence at this stage. It was previously determined in Palmer v Queensland Police Service Weapons Licensing Branch23 that the suspension (of a licence) is not based on the presumption of guilt but is an action designed by statute to achieve the objects of the Weapons Act. The Weapons Act imposes strict requirements on licences authorising possession of firearms for public safety reasons.24 [35] In Palmer’s case, the Tribunal said that weapons possession and use is subordinate to the need to ensure public and individual safety that is improved by ‘imposing strict controls on the possession on weapons’.25 In Palmer’s case, the Tribunal said that the interests of the individual must be subordinate to the interest of public safety as set out in the principles of the Act.26 I accept the approach taken by the Tribunal in Palmer’s case in determining a person’s suitability to hold or to continue to hold a licence under the Weapons Act. [36] In this case, the balance of convenience weighs against the grant of a stay. As held in Palmer’s case, the interest of public safety is paramount in determining whether a licensee’s licence should be suspended under the Weapons Act. CFD has been charged with offences of sexual assault and rape. CFD will have an opportunity to argue relevant matters in support of his application for review before the Tribunal in the substantive proceeding. CFD will also have an opportunity to defend the criminal proceedings or charges should he elect to do so before a criminal Court. [37] I accept the QPS’ submission that the stay should not be granted. I am not satisfied it is desirable to grant a stay and I order that the application to stay the decision dated 20 June 2017 by Queensland Police Service – Weapons Licensing is refused. Non-publication order [38] The Tribunal has the power to make a non-publication order on its own initiative if satisfied it is necessary as provided under s 66 of the QCAT Act. [39] I am satisfied that a non-publication order is necessary in this matter because the identity of CFD’s name could lead to the identification of CFD’s family and possibly the complainant. CFD lives and works in regional Queensland and the complainant was completing work experience in CFD’s area of work at the time of the alleged incident. CFD has presented evidence that attests to his contributions to the community including working with children. CFD also has a family. [40] It would not be in the public interest to identify CFD’s name in circumstances where CFD’s criminal matters are yet to be determined by a Court and 23 [2010] QCAT 149. 24 Ibid. 25 Ibid. 26 Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149. -- 7 of 8 -- 8 identification of his name could lead to the identification of his family and possibly the complainant’s name. [41] I order that the publication of the name of the applicant be prohibited. I make this order because CFD has requested reasons for my decision made on 6 September 2017 and publication of my reasons in a de-identified format will therefore be necessary to ensure that CFD’s name is not disclosed to any person who is not a party to the proceeding. -- 8 of 8 --