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  • Unreported Judgment

Petersen v Queensland Police Service – Weapons Licensing

 

[2019] QCAT 335

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Petersen v Queensland Police Service – Weapons Licensing [2019] QCAT 335

PARTIES:

GAVIN WILLIAM PETERSEN

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO:

GAR162-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 November 2019

HEARING DATE:

21 February 2019

HEARD AT:

Cairns

DECISION OF:

Member Pennell

ORDER:

The decision of the Queensland Police Service Weapons Licensing dated 25 May 2017 to revoke the applicant’s firearms licence pursuant to the Weapons Act 1990 (Qld) is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES AND REGISTRATION – LICENCE AND PERMIT – REVOCATION – ADMINISTRATIVE LAW – where the where the applicant was the holder of a firearms licence – where the applicant was convicted for possessing a Category H weapon – where the applicant was not licenced or authorised to possess the Category H weapon – where the Category H weapon was de-identified – serial numbers of the Category H weapon were obliterated and/or removed – the applicant’s firearm licence was revoked – ‘fit and proper person’ test – ‘public interest’ test

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1)

Weapons Act 1990 (Qld), s 3(1), s 3(2), s 10(2)(e), s 10B, s 10B(1), s 29(1)(b), s 29(1)(d), s 142(1)(e), s 142A(1)(b), Schedule 2

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Director of Public Prosecutions v Smith [1991] 1 VR 63

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

O’Sullivan v Farrer & Anor (1989) 168 CLR 210

Re Queensland Electricity Commission; Ex-parte Electrical Trades Union of Australia (1987) 72 ALR 1

Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473

APPEARANCES &

REPRESENTATION:

Applicant:

Self-Represented

Respondent:

C C Bradford, Acting Senior Sergeant of Police

REASONS FOR DECISION

Background

  1. [1]
    The applicant is a former police officer who had an exemplary career with the Queensland Police Service (‘QPS’) for a period of almost three decades, reaching the rank of Sergeant. His service to the community was predominately in the far north of the state where he was, from time to time, stationed at various remote localities. On a number of occasions, he was called upon to display courage in deescalating potentially life-threatening situations where members of the public were in possession of firearms. Because of medical reasons, he retired from the QPS in 2014.
  2. [2]
    During his police career, the applicant had been satisfactory approved by the QPS to use and carry a weapon during the performance of his duties.[1] It is fair to say that he was proficient in the safe use, handling, carriage and storage of weapons.[2]
  3. [3]
    In early 2015 the applicant was issued with a firearms licence for recreational/rural purposes pursuant to the Weapons Act 1990 (Qld) (‘the Act’). He was the owner of a rifle and had permission to hunt pests on a number of large pastoral properties.
  4. [4]
    In July 2016, the applicant was on a camping and fishing trip at a remote location on the western side of Cape York Peninsula. This location was approximately 100 kilometres from the closest settlement and almost 800 kilometres from Cairns. The area is well known for the presence of some very large saltwater crocodiles. During the process of reeling in a fish he had caught, a large crocodile took that fish. This happened in close proximity to the boat that he was in.
  5. [5]
    After returning to Cairns, the applicant made further plans to return to that same area in September of that same year. In the interim period, he attended a BBQ where he told an acquaintance about his misadventure with the crocodile. This acquaintance was an avid firearms enthusiast, who then offered the applicant an opportunity to borrow a pistol from him to take on his next planned trip. The applicant did not consider taking his rifle because it was too unwieldy and dangerous in a small boat when fishing.
  6. [6]
    Sometime between when he spoke to his acquaintance and his planned trip, the acquaintance gave him a Glock .40 calibre semi-automatic pistol (‘the weapon’), two magazines, a quantity of ammunition and a holster.
  7. [7]
    The applicant later returned to the remote Cape York Peninsula location.[3] On this occasion he was accompanied by two of his friends. One friend was a retired police officer and the other was a current serving police officer who held the rank of Inspector.
  8. [8]
    During that fishing trip, the applicant told both of his friends that he was in possession of the weapon. He also told them his reason for borrowing it. There were no incidents on that trip which required the applicant to use that weapon, except for him discharging it into a creek in what he described as a ‘test fire’. That test firing of the weapon took place in the presence of his friends.
  9. [9]
    The applicant returned to Cairns[4] and over the next few days he neglected to take up the opportunity to return the weapon to his acquaintance who gave it to him. On 14 September 2016, police officers arrived his home with a search warrant looking for that weapon. Initially the applicant denied having possession of the weapon. It was only after he was told that a firearm detection dog going to be utilised in the search that he then admitted that he had the weapon.
  10. [10]
    The applicant then produced the weapon to the police, along with two magazines, two boxes of spare ammunition and a holster. The weapon and associated items had been stored in the applicant’s motor vehicle and were hidden up under the dashboard on the passenger’s side.
  11. [11]
    When the weapon was inspected it was discovered that the serial numbers had either been obliterated or the identification plates had been removed from each of the three main components of the firearm.[5]
  12. [12]
    The applicant told the police officers that he had borrowed the weapon for a week to take with him on his fishing trip. However, he refused to disclose the identity of the person who gave him that weapon. He went on to tell the police that he had no knowledge of how the weapon became de-identified and nor did he know whether it was a registered firearm or not.
  13. [13]
    The applicant was then issued with a notice to appear for the offence of possession a Category H weapon. He was to appear in the Magistrates Court at Cairns on 28 September 2016. However, he arranged with the court to bring his appearance date forward to the earlier date of 16 September 2016. When appearing in court on that earlier date,[6] he pleaded guilty. The penalty imposed by the court was to convict him and impose a fine of $1,200. No conviction was recorded. The firearm and associated items were forfeited.
  14. [14]
    The applicant was later issued with a revocation notice by the respondent[7], which advised him that because of his conviction in the Magistrates Court, it was no longer in the public interest for him to hold a firearms licence because he was not a fit and proper person to hold that licence.
  15. [15]
    The applicant seeks a review of the respondent’s decision to revoke his firearms licence. In his application to the Tribunal,[8] he said that he believed that the public could safely conclude that there was little likelihood of him breaching the principles of the Act in the future, and the question was whether there is any real prospect of him misusing weapons in the future.[9]

Legislative pathway

  1. [16]
    The Act regulates the entitlement for the use and ownership of firearms[10] in Queensland. The object of the Act[11] is to prevent the misuse of weapons.[12] The principles underlying this Act are that firearm or weapon possession and their use are subordinate to the need to ensure public and individual safety. Public and individual safety is improved by imposing strict controls on the possession of weapons and requiring their safe and secure storage and carriage.[13]
  2. [17]
    The Act provides that discretion may be exercised in issuing a firearms licence to an individual and the license may only be issued to that person if that individual is a fit and proper person to hold a firearms licence.[14] In determining whether a person is a fit and proper person, consideration must be given, amongst other things, to the following matters:
  1. (a)
    the mental and physical fitness of the person; and
  2. (b)
    whether a domestic violence order has been made against a person; and
  3. (c)
    whether the person has stated anything in or in connection with an application for a license, or an application for the renewal of a licence, the person knows is false or misleading in a material matter; and

(ca)whether there is any criminal intelligence or other information to which the authorised officer has access that indicates –

  1. (i)
    the person is a risk to public safety; or
  2. (ii)
    that authorising a person to possess a weapon would be contrary to the public interest; and
  1. (d)
    the public interest.[15]
  1. [18]
    In regard to the revocation of a firearms licence, what is relevant to the applicant is that the Act expressly provides a discretion to the respondent to revoke a firearms licence. That discretion can be exercised if the authorised officer is satisfied of a number of things, including whether a 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. Further to this, the discretion also applies if the respondent is satisfied that the licensee is no longer a fit and proper person to hold a firearms licence.[16]
  2. [19]
    Because the respondent has decided to revoke the applicant’s firearms licence, the Act allows for the applicant to make an application to the Tribunal to review that decision.[17] The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that when undertaking the review of the respondent’s decision, the Tribunal effectively ‘stands in the shoes’ of the original decision maker.[18]
  3. [20]
    Any review hearing undertaken must be a fresh hearing on the merits of the application.[19] The purpose of the Tribunal undertaking the review is to produce the correct and preferable decision[20] and this must be based on the material before the Tribunal at the time of the review hearing.[21]
  4. [21]
    In arriving at a conclusion of what is the correct and preferable decision, the Tribunal has the discretion to either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute that decision with its own decision; or set aside the respondent’s decision and return the matter for consideration to the original decision maker with directions the Tribunal considers appropriate.[22]

Criminal intelligence

  1. [22]
    Criminal intelligence in relation to a person means any information about the person or other information[23] which if disclosed, amongst other things, could reasonably be expected to prejudice an investigation or possible contravention of the Act; or it could enable the identify the existence or the identity of a confidential source of information; or endangers a person’s life or physical safety; or prejudice the effectiveness of investigative methodologies.
  2. [23]
    During the hearing, the respondent made an application to proceed to a closed hearing so that the Tribunal could receive additional information in the form of criminal intelligence. This was carried out in the absence of the applicant.[24]
  3. [24]
    The criminal intelligence itself was useful in explaining the overall context of the facts and circumstances of this matter. In my view, it gave clarity of the background information for this particular matter, in particular whether the public interest test could be satisfied.
  4. [25]
    Putting aside the clarity of the background information, the other information and evidence which was not criminal intelligence, was in my view, sufficient enough for me to reach a decision without reference to the criminal intelligence.

Fit and proper person test

  1. [26]
    The phrase ‘fit and proper person’ is a well-known phrase that has been considered on numerous occasions in this jurisdiction, along with the various other jurisdictions in Queensland and other parts of the Commonwealth.
  2. [27]
    A well referenced comment relating to ‘fit and proper person’ arises out of the High Court’s decision in the ‘Bond Media Case’. On that occasion, the High Court commented that:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.[25]

The High Court went on to say:

The expression ‘fit and proper person’ standing alone, carries no precise meaning. It 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. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.[26]

  1. [28]
    The applicant was issued with a revocation notice by the respondent.[27] That notice advised him that it was no longer in the public interest for him to hold a firearms licence because he was not a fit and proper person to hold that licence. The respondent relied upon the factors of this matter as a basis for that decision. Those factors include the applicant acquiring the Category H weapon to take on a fishing trip, his possession of that weapon and the conviction for that offence.[28]
  2. [29]
    The applicant proposes that he is a person of good character, and an example of that is his unblemished career as a police officer. He suggests that significant weight should be given to his good character when an assessment is made as to the fit and proper person test.
  3. [30]
    There is a hypothesis that there is a relationship between the assessments of whether a person is a fit and proper person to hold a firearms licence and a person of good character. The phrase ‘fit and proper’ relates to whether or not a person is suitable, appropriate or legally eligible to undertake a particular activity. On the other hand, ‘character’ refers to a person’s fundamental moral qualities and represents their mannerisms, personality type, distinctive traits and their moral and ethical qualities.
  4. [31]
    It is the aggregate of those features and traits that form the individual nature of a person. Although ‘fit and proper person’ and ‘character’ may be related, they are dissimilar to each other and it does not ordinarily follow that just because a person is possessed of a good character that they automatically should be considered to be a fit and proper person.
  5. [32]
    As the decision maker in this matter, I am required to consider not just the applicant’s general reputation, but also the matters affecting his moral standards, attitudes and qualities.

Public interest test

  1. [33]
    The National Firearms Agreement (‘NFA’) constitutes a national approach to the regulation of firearms and concerns the control of firearms. The NFA was instituted by the various Police Ministers from the States of the Commonwealth in response to the ‘1996 Port Arthur Massacre in Tasmania.[29]
  2. [34]
    The NFA affirms that the use and possession of firearms is a privilege and it is conditional upon the overriding need to ensure public safety. It also affirms that public safety is improved by the safe and responsible position, carriage, use, registration, storage and transfer of firearms.[30]
  3. [35]
    Public interest is a term embracing matters, among others, the standards of human conflict and of the functioning of government and government agencies for the good order of society and for the wellbeing of its members. Therefore, the interests of the public are distinct from the interests of an individual or individuals.[31]
  4. [36]
    The discovery in any particular case of where the public interest lies will often depend on a balancing of interest, including competing public interests, and it is very much that the public interest test is a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation.[32]
  5. [37]
    It was noted in the Appeal Division of the New South Wales Administrative Decisions Tribunal that the term public interest is:

… an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.

… it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.[33]

The applicant’s case and discussion

  1. [38]
    The applicant told the Tribunal that he had a lifetime of obeying and enforcing the law and he hoped that his conduct during these proceedings indicated that his conviction was out character for him. He said that his attributes are not of a person who shuns respect and adherence of the law, but rather his personality is in line with the adage of learning from one’s mistakes.
  2. [39]
    Notwithstanding that he has been convicted for possessing the weapon, the applicant said that he did not believe that his moral compass had changed much from when he previously enforced the law as a police officer. He went on to say that the main distinction that he could draw between himself as a police officer and himself as a defendant was that there was a diagnosis of adjustment disorder and post-traumatic distress order (‘PTSD’) and the earliest stages of his treatment for the same.
  3. [40]
    He accepted that he displayed poor decision-making and lack of judgement in ‘borrowing’ the weapon and in hindsight he cannot explain his offending at all. I note that he did not explain why it was he who instigated the possession of the firearm by seeking out a person who he knew was connected with concealable firearms. I also note that it was the applicant’s intention to return that firearm to that person, even though the applicant knew that the weapon had been de-identified. In explaining why he was going to do that, he said that in his mind was the concept of ‘if you borrow something, you return it’.
  4. [41]
    The applicant went on to explain that there were certain parts of the law and policy governing weapons that he did not agree with. He stressed that, although he may not agree with certain laws, that does not automatically mean that he is less likely or less responsible for abiding by the law.
  5. [42]
    I further note that the applicant would like the Tribunal to accept that he had no knowledge of the background of the weapon in question. That is, he did not know of its origin and how, why and by whom the weapon was de-identified. He said that he did not even know if this person had a firearms licence, let alone a licence for a Category H weapon.
  6. [43]
    While I accept that it is conceivable that he did not possess the knowledge of the weapon’s background, what I do not accept is that once someone of his experience and qualifications became aware that the weapon was de-identified that he was not immediately suspicious as to its origin or why it had been de-identified.
  7. [44]
    A further concern is that instead of being suspicious and immediately returning the weapon to the person who gave it to him, or even surrendering it to the police, his immediate actions were to keep the weapon, which included his careless and wanton display of the weapon to his companions on the fishing trip.
  8. [45]
    He even went so far as to keep the weapon after returning from his fishing trip and secreting it inside his motor vehicle. He said that he planned to return the weapon to the person who gave it to him on the day the police arrived at his residence with a search warrant looking for the weapon, although I am of the view that this was a convenient and a totally self-serving comment.
  9. [46]
    The applicant’s argument is that there had been no misuse of the weapon by him, and nor had there been any threat whatsoever to individuals or to the safety of the public.[34] He went on to say that he displayed no deceptive nature in his offending that could lead to a conclusion that there may be a future risk of him misusing a weapon, or the future concern for public safety.[35] I reject his suggestions on the following points.
    1. (a)
      By him unlawfully possessing the weapon for which he did not hold the requisite authority to possess, and which such weapon had been de-identified, is in my view clearly a misuse of that firearm.
    2. (b)
      The misuse of the firearm goes further when consideration is given to the flagrant display of the weapon during the test firing the weapon in front of others, including a current serving member of the QPS.
    3. (c)
      All of this is further compounded by the applicant securing the weapon in his motor vehicle as opposed to locking it way in a gun safe at his residence.

Conclusion

  1. [47]
    It is extremely important to bear in mind that an object of the Act is to prevent the misuse of weapons.[36] The responsible approach by people who have been issued with a firearms licence is to act honestly according to the objects of the Act and the responsibilities attached to the licence issued to them. The public has the right to be confident that any person who is issued with a firearms licence under the Act will conduct himself or herself honestly and in an appropriate manner.
  2. [48]
    Notwithstanding the information provided by way of criminal intelligence, I am gravely concerned with regard to the applicant’s involvement in the possession of the weapon, his cavalier attitude in displaying and using that weapon in the presence of others and his method of storage of that weapon inside his motor-vehicle.
  3. [49]
    My view is that even without the benefit of the criminal intelligence I could be satisfied that the conduct of the applicant and his overall offending are sufficient enough for me to reach a correct and preferable decision.
  4. [50]
    I am satisfied that not only did the applicant display a willingness to be involved in the possession of that weapon, but also a willingness to conceal its existence. This in my view, could only lead to the conclusion that if faced with a similar circumstance the applicant has the propensity to participate in similar behaviour.
  5. [51]
    The applicant’s behaviour by possessing the weapon has three distinctive issues attached to it. The first is that he obtained possession, and used, the weapon for which he was not lawfully entitled to possess. The second is that the weapon in question had been significantly de-identified. A person of his qualifications and experience ought to have known, or at the very least ought to have reasonably suspected that there was at least some illegality attached to that weapon. The third issue is that notwithstanding those points I have just identified, the applicant, knowing of those things, intended to return the weapon to the person to whom he obtained it from, thus perpetuating its return back into the general community.
  6. [52]
    The applicant’s behaviour was one of intentional disregard for the basic legislative requirements for holding a firearms licence and it is less than what the public may expect of a licensed firearm holder. What the applicant did was to engage in what can only be referred to as improper conduct with regards to the possession of the weapon. When measuring his conduct against his fitness and propriety to hold a firearms licence, his conduct after acquiring the weapon, including the possession, use and concealment of it in his vehicle are all behaviours entirely divorced from that which is expected of a fit and proper person.
  7. [53]
    As provided for by the QCAT Act, this review was undertaken by way of a fresh hearing on the merits of the matter. Upon consideration of all the facts, circumstances and evidence of this matter, and applying the principle of ‘fit and proper person’ as enunciated by the High Court in the ‘Bond Media Case’, and the ‘public interest’ principles reached by the various authorities, I am satisfied that the only conclusion to be reached is that the applicant is not a fit and proper person to hold a firearms licence.

Order

  1. [54]
    Therefore, I am satisfied that the decision of the Queensland Police Service Weapons Licensing dated 25 May 2017 to revoke the applicant’s firearms licence pursuant to the Weapons Act 1990 (Qld) is the correct and preferred decision and that decision is confirmed.

Footnotes

[1] That approval was for both a pistol and a rifle and the assessments were undertaken on a yearly basis.

[2] Weapon means a firearm. Weapons Act 1990 (Qld), Schedule 2 – Dictionary.

[3] On 3 September 2016.

[4] On 11 September 2016.

[5] The main components of the weapon were the frame, the slide mechanism and the barrel.

[6] 16 September 2006.

[7] On 25 May 2017.

[8] Received by the Tribunal on 27 June 2017.

[9] Applicant’s application at page 4.

[10] Weapons Act 1990 (Qld), Schedule 2 – Dictionary provides that a firearm includes a gun or other thing ordinarily described as a firearm.

[11] Weapons Act 1990 (Qld), s 3(2).

[12] Weapons Act 1990, Schedule 2 – Dictionary provides that a weapon includes a firearm.

[13] Weapons Act 1990 (Qld), s 3(1).

[14] Weapons Act 1990 (Qld), s 10(2)(e).

[15] Weapons Act 1990 (Qld), s 10B(1).

[16] Weapons Act 1990 (Qld), s 29(1)(b) and (d).

[17] Weapons Act 1990 (Qld), s 142(1)(e).

[18] The respondent.

[19] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[20] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[21] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

[22] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[23] Of a kind mentioned in the Weapons Act 1990 (Qld), s 10B(1)(ca).

[24] Weapons Act 1990 (Qld), s 142A(1)(b).

[25] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ.

[26] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 388 per Toohey and Gaudron JJ.

[27] On 25 May 2017.

[28] See the Information Notice which accompanied the Revocation Notice provided to the applicant by the respondent.

[29] This incident resulted in the death of 35 people.

[30] National Firearms Agreement at page 2.

[31] Director of Public Prosecutions v Smith [1991] 1 VR 63 at 75 per Kay, Fullagar and Ormiston JJ, citing Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 480 per Barwick CJ.

[32] O’Sullivan v Farrar & Anor (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ.

[33] Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25].

[34] Applicant’s affidavit dated 12 September 2017 at paragraph 25.

[35] Applicant’s affidavit dated 12 September 2017 at paragraph 26.

[36] Weapons Act 1990 (Qld), s 3(2).

Close

Editorial Notes

  • Published Case Name:

    Gavin William Petersen v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Petersen v Queensland Police Service – Weapons Licensing

  • MNC:

    [2019] QCAT 335

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    04 Nov 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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