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  • Unreported Judgment

Keen v Queensland Police Service – Weapons Licensing

 

[2019] QCAT 235

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Keen v Queensland Police Service – Weapons Licensing [2019] QCAT 235

PARTIES:

NATHAN RONALD KEEN

(applicant)

v

Queensland Police Service – weapons licensing

(respondent)

APPLICATION NO/S:

GAR 207-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

12 August 2019

HEARING DATE:

18 May 2018

HEARD AT:

Caloundra

DECISION OF:

Member Deane

ORDERS:

The decision dated 14 June 2017 to revoke Nathan Ronald Keen’s firearm’s licence is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION  – LICENCE OR PERMIT – whether fit and proper person to hold a weapon’s licence – where failed to completely secure weapon leading to discharge by unlicensed person – where no conviction recorded for weapons offences - where not completely honest in recorded police interview and evidence before the tribunal – where substantial criminal and traffic history demonstrating a disregard for the law

Penalties and Sentences Act 1992 (Qld), s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 10B, s 29(1)(d)

CAT v Queensland Police Service [2017] QCATA 43

Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Magarry v Queensland Police Service Weapons Licensing Branch [2012] QCAT 378

Roesch v Queensland Police Service Weapons Licensing Branch [2013] 717

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Senior Constable R Paz Landim

REASONS FOR DECISION

  1. [1]
    Mr Keen seeks review of the 14 June 2017 decision by the QPS to revoke his weapon’s licence (the Decision).[1]
  2. [2]
    On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[2]  The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[3] There is no presumption that the decision under review is correct.[4]
  3. [3]
    Essentially the question for determination is whether Mr Keen is a fit and proper person to continue to hold a weapon’s licence.
  4. [4]
    The delay in finalising the application is regrettable and relates to resourcing issues.
  5. [5]
    Most of the evidence in this proceeding related to the circumstances surrounding the discharge of Mr Keen’s weapon by his then 19 year old son during an incident at Mr Keen’s property late on the evening of 23 March 2016/early in the morning of 24 March 2016.  Criminal charges against his son had not been finally dealt with at the time of the hearing of this review whereas criminal charges against Mr Keen had been resolved as discussed later in these reasons.
  6. [6]
    There are a number of disputed factual matters between Mr Keen and his son’s evidence of the events and the evidence given by his neighbours, the Scotts.  The Scotts’ evidence is that on the evening in question there was loud noise including approximately 6 gun shots emanating from the Keens’ property.  Mr Keen denies they were making a lot of noise and denies shots were fired during the evening.  The Keens’ evidence is that Mr Scott, who has some history of violence, was behaving in what they regarded as a threatening way with an axe and the extreme step of discharging the weapon was in a sense a form of defence of Mr Keen by his son.  The Scotts deny Mr Scott had an axe.  The evidence is that at the relevant time Mr Scott was on parole.  The Scotts say that Mr Keen was affected by alcohol.  Mr Keen concedes he had a few ‘Gold’ beers over a number of hours.  He denies that he was affected by alcohol. 
  7. [7]
    There is little the Scotts and the Keens agree upon in relation to the incident or indeed in relation to any other matters including the amount of noise, which emanates from the Keens’ property and how frequently it occurs.  Mr Keen contends that the Scotts have ‘set him up’. 
  8. [8]
    Mrs Scott provided her son’s mobile phone to the QPS, which contained a recording of at least some of the events of that evening.  A copy of the recording is in evidence before me.[5] The evidence is that the recording was made by Mrs Scott phoning her daughter-in-law, who in turn recorded the phone call on her husband’s phone. 
  9. [9]
    The recording is, unsurprisingly, not very clear.  There are sounds of dogs barking, which makes it difficult to hear the voices.  Mrs Scott’s voice is mostly quite clear.  At times it is difficult to hear Mr Keen’s voice.  Other voices are extremely difficult to make out.  It records a verbal altercation between Mrs Scott and Mr Keen, with Mrs Scott doing most of the talking and the use of inflammatory language.  Before, what I understand to be, the shot is heard Mrs Scott says words to the affect ‘no John, let’s go John, no’.  This potentially corroborates the Keens’ evidence that Mr Scott was behaving somehow in a threatening way.  Although there is some evidence that Mrs Scott sought medical attention in the days after the weapon was discharged for damage to her hearing, on the recording she did not appear to particularly react to the shot and seemed more concerned with her husband’s behaviour again saying words to the affect ‘John no, don’t’.
  10. [10]
    The recording appears to corroborate some of each of the Scotts’ and the Keens’ evidence and not others.    
  11. [11]
    The undisputed evidence is that Mr Keen had failed to completely secure his weapon and that lead to his son discharging the weapon in a potentially unsafe manner.  The Keens’ evidence is that the weapon was in the back cage of Mr Keen’s land cruiser station wagon, having been required on their property earlier in the day and the shell used was stored separately in the glove box.  Mr Keen failed to lock his vehicle when he stepped out of it.  Even though he was on his own land at the time these failures lead to the weapon being discharged by an unlicensed person.
  12. [12]
    Mr Keen contends that:
    1. (a)
      it is his usual practice to secure the weapon in the gun safe upon returning to the house but visitors arrived and he forgot to do so. 
    2. (b)
      he is very safety conscious and that ‘one mistake’ should not deprive him of his weapon’s licence, which he has held for some 20 years, without issue. 
  13. [13]
    Following the incident the QPS attended at Mr Keen’s property on 29 March 2016 with a search warrant and seized a double barrel shotgun, which was stored in a gun safe and various pieces of ammunition, which were unsecured in various locations through the house.  Mr Keen was arrested and participated in an electronic record of interview, a copy of which is in evidence before me. [6]
  14. [14]
    Mr Keen sought to explain that the ammunition was found unsecured because he was changing safes and had emptied the safe out the day the QPS attended.  He contends that he was waiting for someone to come the next day to help him move a larger safe upstairs.  Even if I accept this evidence, on Mr Keen’s evidence he started changing the safes over but then had a sleep during the day before the change over had been completed leaving a substantial quantity of ammunition unsecured, which would have remained unsecured until at least the following day when it was to be placed in the larger safe. 
  15. [15]
    During the hearing Mr Keen:
    1. (a)
      denied that unsecured ammunition was found by the QPS in various locations around the house including in his 10 year old son’s bedroom.   
    2. (b)
      contended that during the electronic record of interview he said that he never held a firearm but he was not asked about whether his son held a firearm during the incident. 
  16. [16]
    I have listened to and watched the video of the interview, during which Mr Keen, after being advised of his rights including that he did not need to answer questions:
    1. (a)
      contended he had placed ammunition taken from the safe in a box high up in the kitchen when changing safes.
    2. (b)
      when the officer put to him ammunition was found in various locations including on top of a safe, on a bedside table, on  top of the fridge and in a jar on the kitchen bench, which looked like it had been there for some time, he appeared to accept that ammunition was unsecured in various locations around the house.  He did not specifically disagree that ammunition was found in these locations.[7]
    3. (c)
      said words to the affect ‘little shit must have taken them’ when the officer told him shot gun shells were found in his 10 year old child’s bedroom.
    4. (d)
      when asked to recount his recollection of the altercation with the Scotts omitted any mention of a gun being discharged.
    5. (e)
      when the officer put to him that during the verbal altercation his son produced a gun and shot it, he denied a number of times that his weapon had been discharged during the altercation with the Scotts and invited the officer to test the gun seized and asserted it had not been fired in some time.
  17. [17]
    Senior Constable McDonald gave evidence that he did not believe Mr Keen would have been able to fit all the loose ammunition into his safe.  I accept his evidence.  This is consistent with Mr Keen’s evidence that he was in the process of moving the ammunition into a larger safe.
  18. [18]
    Section 10B(1) of the Act sets out matters to be considered in deciding whether or not a person is or is no longer a fit and proper person.  These include mental and physical fitness, whether a domestic violence order has been made and making false or misleading statements in connection with an application for a licence.  There is no evidence before me which suggests these are disqualifying factors in this case.  The QPS contends the matters of relevance are that there is information, which indicates that Mr Keen is a risk to public safety and the public interest.
  19. [19]
    The QPS point to Mr Keen’s criminal record, including charges that were dismissed due to insufficient evidence, as evidencing a disregard for the law over an extended period such that it is not in the public interest for Mr Keen to hold a weapon’s licence. 
  20. [20]
    Section 10B(2) of the Act deems a person not fit and proper if convicted of certain offences including one involving the use, carriage, discharge or possession of a weapon.[8]
  21. [21]
    On 20 February 2017 Mr Keen plead guilty to possessing/acquiring restricted items (handcuffs), failing to store small arms ammunition and power device cartridges in a secure area and failing to securely store weapons.  No conviction was recorded and so the deeming provision is not operative.[9]  Mr Keen contends he was unaware that handcuffs were restricted items and that he used them for the purpose of securing his motor cycle and that he was in the process of changing safes to account for the ammunition not being securely stored.
  22. [22]
    Mr Keen resides on a 55 acre rural property and contends he requires a weapon’s licence to protect his sheep, dogs and family from wild dogs and other pests.   I am satisfied that Mr Keen has a genuine reason for possessing a weapon.[10]
  23. [23]
    The principles of the Act are that weapon possession and use are subordinate to the need to ensure public and individual safety, which is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.[11]  The object of the Act is to prevent misuse of weapons.[12]  Having regard to the object and principles of the Act the interests of the whole community are matters required to be weighed.[13]  Mr Keen’s personal interest in retaining his licence cannot outweigh the public interest.
  24. [24]
    Mr Keen placed before the Tribunal evidence from a number of what were largely character witnesses.  They also gave evidence of the need for a weapon in the locality in which Mr Keen resides, Mr Keen’s good weapon safety practices and that although some of them are close neighbours they have not been bothered by noise coming from his property.  In the interests of finishing the hearing in one day, only some of them gave evidence by telephone.  I accept their evidence of Mr Keen’s good character to their knowledge, good weapon safety practices to their knowledge, need for a weapon and contributions to the community including that he has trained and been accredited in rural fire fighting.  I note that the certificates in respect of fire fighting training all were issued on 16 July 2017, after the Decision was made and shortly before the Application to review was filed.[14]  There is also evidence before me that for many years Mr Keen was a member of good standing of a recreational clay target shooting club.
  25. [25]
    The criminal history evidence[15] shows that between May 1980, when Mr Keen was 17 years old and September 1993, when Mr Keen was 30 years old, Mr Keen was the subject of charges on 12 occasions, resulting in bail being forfeited on 6 occasions,[16] 5 convictions[17] and a nolle prosequi being entered.  The evidence before me is that Mr Keen has held a weapon’s licence since at least 1997. 
  26. [26]
    The inference is that the QPS were aware of these previous charges and convictions in assessing the application for a licence or for renewal in 1997, 2004, 2010 and 2015.  I accept that all of the information before me, including information previously assessed, is required to be weighed to determine if Mr Keen remains a fit and proper person.
  27. [27]
    The criminal history reveals that Mr Keen was also charged with other offences relating to the March 2016 events but those charges were dismissed due to lack of evidence. 
  28. [28]
    I place little to no reliance on charges which were dismissed.
  29. [29]
    Mr Keen’s traffic record is also before me.[18]  In addition to the driving offences set out in the criminal history it shows further driving under the influence of alcohol convictions in 1993 and 2013 and a substantial number of infringements from 1988 to 2017 but only one infringement since 2013.[19] 
  30. [30]
    I accept that there were two substantiated incidents of unsafe weapons’ practice in March 2016.
  31. [31]
    Whilst the evidence is that Mr Keen has an adequate knowledge of safety practices for the use, storage and maintenance of his weapons he failed to adhere to those practices in his house and on his property.[20]   To his credit he plead guilty to offences, which were dealt with in February 2017 and expressed remorse during the hearing for failing to ensure his weapon was sufficiently secured to prevent its use by his son, an unlicensed person.  The Scotts’ evidence is that Mr Keen admonished his son by saying words to the affect “I told you never to do that”.[21]
  32. [32]
    From the mobile phone recording in evidence before me I can clearly hear Mr Keen twice say words to the affect ‘put that thing away’ after what appeared to be the noise of the weapon being discharged.
  33. [33]
    I accept that the interest of public safety is paramount.  The criminal and in particular the traffic history is quite lengthy.  It does not demonstrate a history of violence, although there is the 1991 offence of assaulting police. There are no other substantiated incidents of unsafe weapons’ practices. 
  34. [34]
    The Tribunal has previously accepted that[22]

"Previous breaches of the law, and any proclivity for offending have been considered important in determining whether a person is a fit and proper person to hold a licence.  As the Tribunal has observed, irresponsible, uncontrolled or antisocial behaviour constituting a risk to public safety[23] is relevant, including traffic offences which may of themselves indicate a flagrant disregard for the law."[24]

  1. [35]
    In exercising my discretion I am required to consider whether, in all the circumstances:
    1. (a)
      there is any real prospect of Mr Keen misusing his weapons so that his licence should be revoked? 
    2. (b)
      is his right to possess firearms a real risk to public and individual safety?[25]
  2. [36]
    Weighing all the evidence before me, I am satisfied that Mr Keen is not a fit and proper person to hold a licence.
  3. [37]
    I am not satisfied that Mr Keen has been entirely honest with the QPS during the recorded interview nor with the Tribunal.  During the recorded interview he specifically denied that a firearm had been discharged by his son.  In these proceedings he sought to reframe his denial as relating to whether he held a firearm.  Such a contention is not consistent with the video of the interview.  He has accepted responsibility for ‘one mistake’, being his failure to properly secure his weapon leading to it being discharged by his son.  It is evident that there have been a number of ‘mistakes’ not all of which Mr Keen has conceded although he did plead guilty to weapons’ offences on 20 February 2017. He sought to explain away all of the loose ammunition in a way inconsistent with the evidence.  In this respect, there were inconsistencies in his statement during the recorded interview and in his evidence in these proceedings as set out earlier in these reasons. 
  4. [38]
    Given Mr Keen’s apparently limited insight into his contraventions, his lack of complete honesty in his recorded interview and in his evidence before the Tribunal and his quite substantial criminal and traffic history demonstrating a disregard for the law, I am not satisfied that there is no real prospect of Mr Keen misusing his weapons nor am I satisfied that his right to possess firearms is not a real risk to public and individual safety.
  5. [39]
    I confirm the Decision.

Footnotes

[1] Weapons Act 1990 (Qld)(the Act), s 29(1)(d).

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld)(QCAT Act), s 24.

[3] Ibid, s 20.

[4] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[5] Exhibit 26.

[6] Exhibit 27.

[7] Two police officers gave evidence of this extent of unsecured ammunition.  I accept the police officers’ evidence.

[8] The Act, s 10B(2)(a)(iii).

[9] Penalties and Sentences Act 1992 (Qld), s 12(3).

[10] The Act, s 4 (c).

[11] Ibid, s 3(1).

[12] Ibid, s 3(2).

[13] Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors (1995) 131 ALR 657

[14] Exhibit 14.

[15] Exhibit 20, p000877-000878; Exhibit 25.

[16] Variously behaving in a disorderly manner, obstructing police, resisting police and obscene language charges.

[17] Driving or being in charge of a motor vehicle whilst blood alcohol content was 0.13%, 0.18% and 0.20%, driving without due care and attention and unlicensed driving charges.  All of these occurred between 1980 and 1985.  Also behaving in a disorderly manner, resisting police and assaulting police charges in 1991.

[18] Exhibit 24.

[19] Including for speeding on 15 occasions, failing to wear seat belt, disobeying a red traffic light, use or permit use of unregistered vehicle on 5 occasions, driving a vehicle of a class not authorized to drive, vehicle defects, failing to comply with defects notice.

[20] The Act, s 10(2).

[21] Exhibit 15, [25]; Exhibit 16, [13].

[22] Roesch v Queensland Police Service Weapons Licensing Branch [2013] 717, [33].

[23] Bannan v QPS Weapons Licensing Branch [2010] QCAT 634, [9].

[24] Ibid; McVie v QPS [2010] QCAT 431.

[25] Magarry v Queensland Police Service Weapons Licensing Branch [2012] QCAT 378; CAT v Queensland Police Service [2017] QCATA 43.

Close

Editorial Notes

  • Published Case Name:

    Keen v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Keen v Queensland Police Service – Weapons Licensing

  • MNC:

    [2019] QCAT 235

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    12 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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