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  • Unreported Judgment

Zanders v Queensland Police Service – Weapons Licensing Branch

 

[2020] QCAT 8

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Zanders v Queensland Police Service – Weapons Licensing Branch [2020] QCAT 8

PARTIES:

DANIEL ARNOLD ZANDERS

(applicant)

 

v

 

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING bRANCH

(respondent)

APPLICATION NO/S:

GAR180-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 January 2020

HEARING DATE:

4 October 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

The decision of the Queensland Police Service – Weapons Licensing Branch to revoke firearms licence number 10125523 held by Daniel Arnold Zanders is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – GENERALLY – Application for Review: Weapons Licensing matters – revocation of firearms licence – fit and proper person – mental fitness – public interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Weapons Act 1990 (Qld)

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

APPEARANCES &

REPRESENTATION:

 

Applicant:

J Wallace, solicitor of Wallace O’Hagan Lawyers

Respondent:

Sergeant D Ayscough, Queensland Police Weapons Licensing

REASONS FOR DECISION

Introduction

  1. [1]
    Mr Daniel Arnold Zanders (‘Mr Zanders’) was the holder of firearms licence number 10125523 and concealed firearms licence number 30037025 which he used for sport and target shooting.
  2. [2]
    Following an incident on 24 March 2018, which will be explained in more detail below, on 27 March 2018 the Queensland Police Service – Weapons Licensing Branch (‘QPS’) decided to suspend both licences.
  3. [3]
    Concealed firearms licence number 30037025 expired on 2 April 2018.
  4. [4]
    On 10 May 2018, after considering submissions from Mr Zanders, QPS revoked firearms licence number 10125523. QPS’s primary concern was that Mr Zanders was not mentally fit to hold a firearms licence and that it was not in the public interest for him to do so.
  5. [5]
    Mr Zanders has applied to the Tribunal to review the decision to revoke firearms licence number 10125523.
  6. [6]
    The issue that I am required to decide is whether Mr Zanders firearms licence number 10125523 should be revoked. In deciding that issue, I am required to decide whether Mr Zanders is a ‘fit and proper person’ to hold a firearms licence.

The legislative framework for the review

  1. [7]
    Pursuant to ss 17 and 18 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), the Tribunal has jurisdiction to review a decision made under an enabling Act. The enabling act in this case is the Weapons Act 1990 (Qld) (‘Weapons Act’).
  2. [8]
    Pursuant to s 20 of the QCAT Act, the purpose of the Tribunal on review is to produce the correct and preferable decision, following a fresh hearing of the matter on its merits. The Tribunal considers the matter afresh, making its own decision based on the evidence before it and according to law. In essence, the Tribunal stands in the shoes of the decision-maker for the decision reviewed and makes its own decision.
  3. [9]
    Pursuant to s 24(1) of the QCAT Act, on review, the Tribunal may confirm or amend the decision, set the decision aside and substitute its own decision or set the decision aside and return the matter to the decision-maker for reconsideration, with or without directions.
  4. [10]
    The Weapons Act sets out provisions in relation to weapons use and licences generally. A weapons licence is not a right. Pursuant to s 3 of the Weapons Act, weapon use and possession is subordinate to the need for public and individual safety.
  5. [11]
    Pursuant to s 29 (1)(d) of the Weapons Act, an authorised officer may revoke a licensee’s licence if the authorised officer is satisfied of any circumstances listed, including that the licensee is no longer a fit and proper person to hold a licence.
  6. [12]
    Section 10B of the Weapons Act sets out a number of matters which an authorised officer must consider in deciding whether a person is a fit and proper person to hold a weapons licence, including when considering revocation of a licence. It states (emphasis added):

10B Fit and proper person—licensees

  1. (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—
  1. (a)
    the mental and physical fitness of the person; and
  1. (b)
    whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
  1. (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

  1. (ii)
    that authorising the person to possess a weapon would be contrary to the public interest; and
  1. (d)
    the public interest.
  1. (2)
    However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period—
  1. (a)
    the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—
  1. (i)
    an offence relating to the misuse of drugs;
  1. (ii)
    an offence involving the use or threatened use of violence;
  1. (iii)
    an offence involving the use, carriage, discharge or possession of a weapon; or
  1. (b)
    a domestic violence order, other than a temporary protection order, has been made against the person.
  1. (3)
    Also, for the issue, renewal, suspension or revocation of a licence, a licensed dealer is not a fit and proper person to hold a licence unless each associate of the person is a fit and proper person to be an associate of a licensed dealer.
  1. (4)
    A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon.
  1. (4)
    In this section—

relevant period means—

  1. (a)
    for the issue or renewal of a licence—the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or
  1. (b)
    for the suspension or revocation of a licence—the 5 year period immediately before the date of the suspension notice under section 28, or a revocation notice under section 29, is given for that suspension or revocation.
  1. [13]
    Section 24(1) of the Weapons Act requires a licensee to, within 14 days of the happening of an event mentioned in s 24(2), advise an officer in charge of police of the change and particulars of the change. The events required to be notified include a change of address and a change in the licensee’s mental or physical fitness.
  2. [14]
    In Mr Zanders’ case, the real issue in deciding whether he is a fit and proper person to hold a firearms licence is whether he is mentally fit and whether it is in the public interest for him to hold a firearms licence.

QPS’s evidence

QPS’s evidence concerning Mr Zanders’ history of holding licences under the Weapons Act

  1. [15]
    QPS Certificates state that Mr Zanders held the following licences issued under the Weapons Act:
    1. (a)
      Firearms licence 10125523 from 16 June 2010 to 10 May 2018; and
    2. (b)
      Concealable firearms licence 30037025 from 4 March 2014 to 2 April 2018.

QPS’s evidence concerning the investigation of Mr Zanders’ complaint of an armed robbery where he was shot on 24 March 2018

  1. [16]
    A statutory declaration of Constable of Police Chris Curtis noted the following:
    1. (a)
      At about 2 am on 24 March 2018, Constable Curtis responded to Mr Zanders’ telephone call to emergency services and attended Mr Zanders at a Freedom service station at Fernvale;
    2. (b)
      Mr Zanders told Constable Curtis that he had been driving home to Crows Nest, having left Bray Park at about 1am that morning. He stopped at a Caltex service station at Black Soil on the Warrego highway where he bought food and drink and then continued on his way home, taking the Brisbane Valley Highway exit. Only about three minutes after leaving the service station, he needed to stop to urinate so he turned onto a side road to do that. He travelled approximately 500 metres down the side road and got out of his vehicle to urinate in the middle of the road. He heard someone behind him say ‘give me your wallet’ and he handed over his wallet. The person said ‘get on the ground and don’t look’ and then ‘do you want it in the knee or the leg’. Mr Zanders stated he knew what that meant because he heard the sound of a shotgun being cocked. Mr Zanders said to the person ‘in the leg’ and he was shot in the leg. Mr Zanders then got back into his vehicle and drove himself approximately 10 minutes to the Freedom service station and called triple zero on the way;
    3. (c)
      Constable Curtis observed that Mr Zanders was sitting in the drivers’ seat of his vehicle with his leg up on the passenger seat, he was wearing long pants and work boots and he had the right leg of his pants rolled up and a bandage on his lower leg;
    4. (d)
      A search of Mr Zanders’ vehicle revealed a .22 calibre magazine and spent .22 calliper cartridge in the driver’s door pocket and a large quantity of Codeine, Tramal and Temazepam on the passenger seat. The medication had only been dispensed a few days prior and there was already a significant quantity missing;
    5. (e)
      Paramedics arrived and removed the bandage on Mr Zanders’ leg. There was a wound on Mr Zanders’ leg which appeared to be a small calibre shot gun wound in a spray pattern. The wound was bruised and there was only a small amount of blood which was congealed. The wound was below the top of Mr Zanders’ work boot and there was no damage to his work boot or his long pants;
    6. (f)
      Constable Curtis believed that Mr Zanders’ version of the events did not match his observations. Mr Zanders became defensive when Constable Curtis advised him of that;
    7. (g)
      Constable Curtis attended the Caltex service station at Black Soil and viewed CCTV footage. He observed that Mr Zanders did attend the service station that evening however he never got out of his vehicle and certainly never purchased any food or drink;
    8. (h)
      Constable Curtis’ subsequent investigations found that on the previous day, Mr Zanders had purchased a box of .22 calibre rat shot which matched the wounds on his leg.
    9. (i)
      Mr Zanders told Constable Curtis that he was currently going through a Supreme Court trial against another police officer who allegedly bashed him, however Constable Curtis found no record of that in the police system;
    10. (j)
      Constable Curtis was aware that Mr Zanders subsequently underwent a mental health assessment at Toowoomba Base Hospital and provided a letter from his GP which noted that there are no concerns with him possessing firearms;
    11. (k)
      However, Constable Curtis believed that there were many inconsistencies in Mr Zanders’ version of events and that evidence strongly indicated that his injuries were self-inflicted. In his opinion, it is inappropriate for Mr Zanders to be allowed to possess a firearm due to potential risk.
  2. [17]
    Constable Curtis did not present for cross-examination.
  3. [18]
    QPS notes state that QPS did not continue with investigation and prosecution of Mr Zanders’ complaint of armed robbery and him being shot on 24 March 2018, for reasons which included:
    1. (a)
      There were multiple discrepancies in the versions of events provided by Mr Zanders and inconsistency with other evidence;
    2. (b)
      Medical opinion, based on an examination of Mr Zanders’ wounds, that Mr Zanders’ injuries could have been self-inflicted;
    3. (c)
      It was not possible to identify precisely when the wounds were inflicted however in the opinion of Constable Curtis who was the first response officer and who was experienced as a paramedic, the wounds did not have the appearance of a fresh wound because there was bruising around the wound and the blood had coagulated. In his opinion, the wounds had been inflicted at least earlier that day or possibly before that;
    4. (d)
      Examination of the clothing worn by Mr Zanders at the time he alleged he was shot, did not reveal evidence consistent with his allegations; and
    5. (e)
      The previous day, Mr Zanders had been shooting at a club range and had purchased some ‘ratshot’ at the same time and did not shoot all of it. Further, Mr Zanders then had possession of his registered .22 calibre handgun which was capable of shooting the ratshot ammunition.

QPS’s evidence concerning the issue of Emergency Examination Authority in respect of Mr Zanders by the QPS on 25 March 2018

  1. [19]
    On 25 March 2018, QPS issued an Emergency Examination Authority (‘EEA’) in respect of Mr Zanders which stated:

[Mr Zanders] reported a gunshot wound to back of right leg in the early hours of Saturday 24/03/18. Attended Ipswich Hospital and had wound treated. Advised was robbed. Investigation commenced and appeared doubtful due (sic) investigation results:-  Medical reports suggest that the wound (buckshot) was older than the time frame reported. Also located photos on [Mr Zanders’] phone of self-harm/self-mutilation (him covered in blood/selfies). Police also spoke with [Mr Zanders’] employer who stated that he has seen a change in personality of [Mr Zanders] over the last 4-5 days, and that when he approached [Mr Zanders] he resigned on Wednesday. [Mr Zanders] has also advised that he has told his father that the Federal Police are following him and that there is a current matter in the Supreme Court where five Police officers have put blades in his head. He told Police he had a Stanley knife stuck in his head by Police. Advised the pictures on his phone were where Police had assaulted him (nothing on police system).

  1. [20]
    The EEA also stated that Mr Zanders appeared delusionaland that his mental health is deteriorating over the last week. He appears to have delusions that he provides no evidence for’. It further stated ‘Police believe [Mr Zanders] requires urgent examination as his delusions may manifest into him self-harming or harming someone else. [Mr Zanders] also is at risk as he holds a weapon’s licence and has access to firearms’.

QPS’s evidence concerning Mr Zanders’ traffic history

  1. [21]
    Mr Zanders’ traffic history included the following offences:
    1. (a)
      22 September 2008 – motorbike quad utility off-road vehicle rider failure to wear helmet;
    2. (b)
      17 December 2014 – exceed speed limit in speed zone by at least 13 km/h and not more than 20 km/h; and
    3. (c)
      29 December 2015 – exceed speed limit in speed zone by less than 13 km/h;
    4. (d)
      11 April 2019 – use/permit vehicle certificate/plate/label/permit writing/mark/colour not legible without reasonable excuse; and
    5. (e)
      11 April 2019 – drive/park a defective vehicle.

QPS’s evidence concerning Mr Zanders allegedly driving a vehicle under the influence of prescription drugs on 28 July 2018

  1. [22]
    QPS documents allege that on 28 July 2018, Mr Zanders was driving a vehicle with drugs in his blood being 0.02 mg/kg of Oxazepam, 0.55 mg/kg of Temazepam and less than 0.02 mg/kg of Codeine. Mr Zanders came to the attention of police when a member of the public reported that he was driving dangerously including swerving and driving on the wrong side of the road towards incoming traffic.
  2. [23]
    In relation to that incident:
    1. (a)
      When questioned by police, Mr Zanders stated that he was very fatigued after working long hours. He stated that he knew that he was fatigued and acknowledged that he should not have driven his vehicle at that time. Mr Zanders did not recall being on the wrong side of the road. He remembered hitting a gutter at some stage but didn’t believe his fatigue was bad enough to warrant pulling over;
    2. (b)
      Police observed multiple packets of prescription medication in Mr Zanders’ vehicle, including an empty bottle of 25 tablets each of 25mg Temazepam which is a sedative. Mr Zanders stated that the last time he used Temazepam was two weeks prior. He could not account to the fact that a new bottle with that days’ date was completely empty. He offered a story to police that perhaps the lid had come undone and the pills fallen out into the vehicle. That was unlikely as the bottle was a medical type bottle with a built in child safety catch and would likely also have had a plastic seal which required to be broken before the lid could be opened;
    3. (c)
      Mr Zanders was transported to hospital for the purposes of a blood test and his driver’s licence was suspended for a period of 24 hours.
  3. [24]
    At this point in time, no charges have been made against Mr Zanders in respect of the events of 28 July 2018.
  4. [25]
    In submissions, Sergeant Ayscough stated that police are awaiting a report as to whether the drugs in Mr Zanders’ blood were at therapeutic levels only.

QPS’s evidence concerning charges of uttering a forged document namely a pharmaceutical prescription on in July and August 2018

  1. [26]
    In August 2018, Mr Zanders was charged with two offences of uttering a forged document, namely a pharmaceutical prescription in July and August 2018.
  2. [27]
    It was alleged that Mr Zanders and provided forged pharmaceutical prescriptions to pharmacies to fraudulently obtain Schedule 4 prescription medication (Temazepam, Paracetamol/Codeine).
  3. [28]
    On 1 May 2019, the charges were discontinued on the basis that QPS had no evidence to offer.

Mr Zanders’ evidence

Mr Zanders

  1. [29]
    Mr Zanders provided a five-paragraph statement and was cross-examined.
  2. [30]
    Mr Zanders has held a recreational firearms licence since the age of 18 years and a pistol licence since the age of 24 years.
  3. [31]
    In relation to the incident in March 2018, Mr Zanders denied that the injury was self-inflicted. He said that the injury occurred when he was shot twice in the back of his leg during a robbery when the thief stole money from his wallet.
  4. [32]
    Mr Zanders denied any mental health and problems. He said the he attended several medical practitioners, including pursuant to an Emergency Examination Authority issued in about March 2018, and that no mental health issues have been identified.
  5. [33]
    Mr Zanders said that he took prescription medication for a couple of months’ around March 2018, being Temazepam for sleeping when he was working shift work and Panadine Forte due to a hurt ankle. He denied taking any of that medication at the time of the incident on 24 March 2018. In cross-examination Mr Zanders later admitted that he took prescribed medication at least from March 2018 to August 2018. When asked when he ceased taking the medication, Mr Zanders said that maybe it was a couple of months after August 2018 and possibly late 2018 but that he was not sure.
  6. [34]
    He said that is currently not taking any medication and he denied that he has a problem concerning prescription drugs.
  7. [35]
    Mr Zanders said that has no criminal record and has never had any problems with guns. He feels a great sense of injustice has been done to him as he loves the sport of shooting and wishes to continue it. He believes that his firearms licences should be restored.
  8. [36]
    During cross-examination, Mr Zanders presented as particularly vague and also with poor recollection.

Edward James Zander, father of Mr Zanders

  1. [37]
    Mr Zanders provided a statement which his father made to QPS on 24 March 2018 concerning recent events.
  2. [38]
    Mr Zanders’ father did not present for cross-examination.

Mr Zanders’ medical evidence

  1. [39]
    Mr Zanders provided medical evidence in the form of various medical reports/correspondence.

Letter of Toowoomba Hospital Emergency Department to Dr Springfield, dated 25 March 2018

  1. [40]
    Toowoomba Hospital Emergency Department wrote a letter to Dr Springfield dated 25 March 2018. It stated:

DANIEL ARNOLD ZANDERS presented to the Emergency Department at Toowoomba Hospital on the 25 MAR at 01:13. The presenting problem was QPS EEA STATED TO QPS THAT THE FEDERAL POLICE ARE MONITORING HIM AND HE HAS RAZORS IN HIS HEAD. QPS HAVE BEEN NOTIFIED OF PHOTOS ON HIS PHONE WHERE HE WAS COVERED IN BLOOD. QPS CONCERNED OF SELF HARM.

SEEN AT IPSWICH 24/24 AGO WITH ? GUNSHOT TO LEG. QPS STATE THEY WERE TOLD IT WAS AN OLD WOUND. D/C THIS MORNING…

The diagnosis was PSYCHOTIC EPISODE

Thank you for your ongoing care of Mr Daniel Zanders. He was brought into the Toowoomba Hospital Emergency Department by QPS, concerned about his mental health.

He was reviewed by our acute care psychiatric team, who were of the opinion he was may be suffering from any early psychotic episode. He had no thoughts of self harm or arm to others. They were of the opinion that he was safe to be followed up in the community, and have arranged for the same. They did not believe he met the criteria to hold him against his will under the mental health act.

On medical review, he stated he had been physically well recently. He denied any recent history of headaches or neurological symptoms, including no changes in vision, no changes in sensation and no muscle weakness.

He is usually fit and healthy, working as a mechanic and rock climbing in his free time. There were no concerns from his father about his general health.

We discussed with Daniel about forming a screen to exclude organic causes of this episode. He agreed to a blood test-we have copied you into these results. We would have liked to performed a CT brain given the questionable history, but the patient politely declined at this time, stating he would follow up with yourself. We would greatly appreciate if you could arrange for this to happen, to exclude brain tumour, or other serious conditions that may be contributing to his presentation.

After extensive discussions with the patient, his father, my senior ED registrar and the psychiatric registrar, we felt the patient was competent to make this decision, and we could not hold him against his will to perform further testing.

He has follow up with our mental health team on 3 April 2018…

Medical Certificate of Dr Neuendorf, General Medical Practitioner, dated 27 March 2018

  1. [41]
    Mr Zanders provided a medical certificate issued by Dr Neuendorf, General Medical Practitioner dated 27 March 2018 which stated:

Mr Daniel Zanders was examined today.

He has lesions on his right mid-calf and distal posterior leg consistent with small calibre shot gun pellet wounds.

The appearance of the lesions is consistent with the stated date of injury of 23 March 2018.

  1. [42]
    Dr Neuendorf was not made available for cross-examination.

CT Scan Report of Dr Sharon Miller, dated 29 March 2018

  1. [43]
    A report of Dr Miller dated 29 March 2018 stated that a CT scan of Mr Zanders’ brain ‘appears within normal limits’.
  2. [44]
    Dr Miller was not made available for cross-examination.

Report of Dr James Vandenberg, Psychiatric Registrar, Darling Downs Hospital and Health Service, dated 3 April 2018

  1. [45]
    Dr Vandenberg wrote a report to Dr Springfield dated 3 April 2018.
  2. [46]
    He noted that Mr Zanders was brought to the emergency department by police on an EEA on 25 March 2018 and was seen by Dr Moncrieff. Mr Zanders was also seen by Dr Vandenberg.
  3. [47]
    The report stated:

When he was seen by Dr Moncrieff, he could not elicit any current symptoms of mental illness, although given the inconsistency between his presentation and the report in the EEA, asked as (sic) to review him again in a week or so. When we saw him, again, there was no sign of mental illness that I could identify clearly. He denied any mood disturbance, and denied any thoughts of persecution, grandiosity or nihilism. On exploration of the narrative, he described events which seemed based in reality, but it appears that through being communicated from one person to the next have become distorted.

His mental state yesterday was of an appropriately dressed, neat, fit young man. He maintained good eye contact, and there was no abnormal psychomotor slowing or agitation. Speech was normal. Mood appeared good, congruent with a reactive and euthymic affect. No perceptual disturbance evident. No thought form disorder, except for a tendency to be inclusive of great detail, understandable in context. No delusions expressed. Cognition not formally tested, but grossly intact. Insight good, judgement reasonable.

My overall impression is that Dan isn’t suffering a mental illness at present, but that police erred on the side of caution in referring him to us, given that some of what he described, when filtered through several people, didn’t seem to make sense.

Consequently, I suggest doing nothing in terms of changing medications or referring to psychologists. It may be prudent to check in regularly with him, perhaps every month or other month, just to ensure he isn’t developing an illness and it’s just too early at this point to detect it. I think it unlikely though.

  1. [48]
    Dr Vandenberg was not made available for cross examination.

Letter of Dr Springfield, Mr Zanders’ General Medical Practitioner to QPS, dated 6 April 2018

  1. [49]
    Mr Zanders provided a letter from his GP, Dr Springfield to QPS dated 6 April 2018 (which attached the report of Dr Vandenberg) which stated:

Mr Zanders has consulted me and asked me to write a letter to you regarding his fitness to use firearms. He has been under my care as a GP for about 12 months and has seen other doctors at the practice prior to this. Over the last few months, he has had issues that have required him to consult with the Toowoomba Base Hospital in review of his mental health. I have enclosed a copy of the latest report from the Mental Health Service at the Toowoomba Hospital.

As you can see, the report clearly states that Daniel is not suffering from mental illness at present. From my history of examination of him, I would agree with this finding. I also don’t think there is any physical reason as to why he would be unfit to use a firearm.

I have read the QCAT information letters before completing this letter. In my opinion, in the history of examination done by myself and the report from the Mental Health team, Daniel has no physical or psychological problem that would impaired him from holding a firearm licence...

  1. [50]
    Dr Springfield was not made available for cross-examination.

Is Mr Zanders a fit and proper person to hold a firearms licence and is it in the public interest for him to do so?

  1. [51]
    I have considered the matters set out in s 10B of the Weapons Act.

Mr Zanders’ mental and physical fitness: s 10B(1)(a)

  1. [52]
    There is no evidence which suggests that Mr Zanders is physically unfit to hold the firearms licence.
  2. [53]
    The relevant issue in this case is whether Mr Zanders is mentally fit to hold the firearms licence and I have had regard to the medical evidence in that regard.
  3. [54]
    It is clear that after the incident on 24 March 2018, QPS had such significant concerns about Mr Zanders’ mental health that they issued an EEA. QPS’s concerns arose from inconsistencies in Mr Zanders’ statements to QPS and other evidence. The concerns included self-harm and that Mr Zanders appeared ‘delusional’.
  4. [55]
    I accept that on 25 March 2018, the Toowoomba Hospital Emergency Department acute care psychiatric team diagnosed Mr Zanders with psychotic episode. They were of the opinion that Mr Zanders did not meet the criteria for involuntary treatment under the Mental Health Act 2016 (Qld) and was safe to be followed up in the community. They recommended further testing to exclude organic causes of the episode.
  5. [56]
    On the basis of that evidence, I find that Mr Zanders did experience a psychotic episode on or about 24 March 2018.
  6. [57]
    I accept that on 29 March 2018, Mr Zanders’ CT brain scan was found to be within normal limits. Of course, that could not exclude the possibility that Mr Zanders had a mental illness but merely a potential cause or causes.
  7. [58]
    I accept that on 3 April 2018. Dr Vandenberg, Psychiatric Registrar, formed the opinion that Mr Zanders was not suffering a mental illness ‘at present’. Dr Vandenberg’s opinion seems to be based, at least in part, on Mr Zanders’ explanation of events.
  8. [59]
    It is apparent from Dr Vandenberg’s report that Mr Zanders had been prescribed some medication which Dr Vandenberg did not recommend changing although it is not clear what that was and how long it was to continue.
  9. [60]
    Although he considered it unlikely, Dr Vandenberg was not able to exclude the possibility that Mr Zanders was not in the early stages of a mental illness which was presently undetectable. Dr Vandenberg considered it may be prudent to check in regularly with Mr Zanders to ensure that Mr Zanders was not developing a mental illness.
  10. [61]
    It is unfortunate that Dr Vandenberg was not available for cross-examination because there was no opportunity to explore and test his reasoning and conclusions regarding Mr Zanders.
  11. [62]
    On 6 April 2018, Dr Springfield, GP also formed the opinion that Mr Zanders was not suffering from mental illness at that time. Dr Springfield’s opinion appears to be based, at least in part, on the opinion of Dr Vandenberg.
  12. [63]
    Mr Zanders relies particularly on the evidence of Dr Vandenberg and Dr Springfield as evidence that he is currently mentally fit.
  13. [64]
    QPS submits that the evidence of Dr Vandenberg and Dr Springfield should be given little weight because none of the medical practitioners were made available for cross-examination and, in any event, because those medical reports/correspondence are somewhat dated. QPS submits that in the absence of recent medical evidence regarding Mr Zanders’ mental fitness, the Tribunal should find that Mr Zanders is not mentally fit to hold the firearms licence.
  14. [65]
    I note that the most recent medical evidence regarding Mr Zanders’ mental fitness is the reports of Dr Vandenberg and Dr Springfield in early April 2018, which is some 18 months prior to this hearing in October 2019.
  15. [66]
    The previous hearing of this matter listed on 29 May 2019 was adjourned at the request of Mr Zanders, in part, to give Mr Zanders an opportunity to obtain updated medical evidence including an updated prescription medication status and GP report and/or psychiatric report. Despite that opportunity, Mr Zanders has not provided any updated medical evidence and has not called any medical witness to give oral evidence or be made available for cross-examination nor provided any explanation for his failure to do so.
  16. [67]
    The medical evidence before the Tribunal is, in a number of respects, inadequate to determine Mr Zanders’ current mental fitness.
  17. [68]
    As stated earlier, I accept that Mr Zander experienced a psychotic episode on or about 24 March 2018.
  18. [69]
    However, it has not been possible to explore and test the opinions of Dr Vandenberg and Dr Springfield by cross-examination that Mr Zanders did not demonstrate symptoms of a mental illness in April 2018.
  19. [70]
    Further, there is no evidence that subsequent follow up checks which were recommended by Dr Vandenberg to check on developing mental illness ever occurred or, if they did, what was the result. There is no evidence of Mr Zanders’ recent mental state.
  20. [71]
    Having regard to the evidence, I am unable to find that Mr Zanders is currently mentally fit to hold the firearms licence.

Has a domestic violence order been made, police protection notice issued or release conditions imposed against Mr Zanders: s 10B(1)(b)

  1. [72]
    There is no evidence which suggests that a domestic violence order has been made, police protection notice issued or release conditions imposed against Mr Zanders.

Has Mr Zanders stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, that he knows is false or misleading in a material particular: s 10B(1)(c)

  1. [73]
    There is no evidence which suggests that Mr Zanders has provided false or misleading information.

Is there is any criminal intelligence or other information to which the authorised officer has access that indicates that Mr Zanders is a risk to public safety or that authorising him to possess a weapon would be contrary to the public interest: s 10B(1)(ca)

  1. [74]
    There is no evidence which falls within the definition of criminal intelligence or other information of the type referred to (which must be kept confidential) under the Weapons Act.[1]

The public interest: s 10B(1)(d)

  1. [75]
    It is submitted for Mr Zanders that it is in the public interest for him to hold the firearms licence.
  2. [76]
    QPS submits that it is not in the public interest for him to hold the firearms licence.
  3. [77]
    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 legislation considered. A weapons licence is not a matter of individual right.[2] The principles and objects of the Weapons Act provide that weapon possession and use is subordinate to the need to ensure public and individual safety, which is improved by imposing strict controls and requiring safe storage and carriage of weapons.[3] The objects are to be achieved, in part through strict requirements for licensing.[4] Accordingly, public interest is to be determined having regard to the primacy of public safety.

The incident on 24 March 2018

  1. [78]
    Having regard to evidence which is not in dispute, I find that that:
    1. (a)
      Mr Zanders was wounded by a shot or shots to his leg on or before 24 March 2018;
    2. (b)
      On 24 March 2018, Mr Zanders reported to QPS an armed robbery and being shot in the leg with ratshot; and
    3. (c)
      The QPS did not continue with investigation and prosecution of the reported armed robbery and shooting for reasons which included multiple discrepancies in the versions of events provided by Mr Zanders, inconsistency with other evidence and concern that Mr Zanders’ wounds may have been self-inflicted.
  2. [79]
    I am unable to be persuaded by Mr Zanders’ evidence that the wounds were inflicted in the manner that he described, for the reasons that:
    1. (a)
      Mr Zanders was not a compelling witness as he appeared vague and with poor recollection;
    2. (b)
      The evidence of Constable Curtis is consistent with the decision of QPS not to continue investigation and prosecution of the reported armed robbery and shooting;
    3. (c)
      I accept the evidence of Constable Curtis who was the first response officer and who was experienced as a paramedic, that in his opinion the wounds did not have the appearance of a fresh wound because there was bruising around the wound and the blood had coagulated. In his opinion, the wounds had been inflicted at least earlier that day or possibly before that. I prefer the evidence of Constable Curtis in this regard to the evidence of Dr Neuendorf, GP because Constable Curtis was an experienced paramedic who inspected the wound at the time of the incident on 24 March 2018, whereas Dr Neuendorf inspected it several days later on 27 March 2018;
    4. (d)
      I also accept the evidence of Constable Curtis, that in his opinion the condition of clothing worn by Mr Zanders at the time he alleged he was shot, was not consistent with Mr Zanders’ allegations; and
    5. (e)
      I accept the evidence of Constable Curtis that his investigations disclosed that previous day, Mr Zanders had been shooting at a club range and had purchased some ‘ratshot’ at the same time and did not shoot all of it. Further, Mr Zanders then had possession of his registered .22 calibre handgun which was capable of shooting the ratshot ammunition. This was not denied by Mr Zanders.
  3. [80]
    In the circumstances, I cannot exclude the possibility and indeed I find it likely that Mr Zanders’ wounds were self-inflicted by his own firearm on or before 24 March 2018 although the precise circumstances and manner in which that occurred is unknown.
  4. [81]
    Mr Zanders’ wounds, likely self-inflicted by his own firearm, are relevant to the public interest issue and whether Mr Zanders is a fit and proper person. This could pose a significant risk to personal and public safety if Mr Zanders engaged in similar behaviour in the future.
  5. [82]
    Mr Zanders has not demonstrated insight and a preparedness to address risks of a similar future incident. On that basis, I cannot be satisfied that there is not a reasonable risk that such an incident may occur again in the future.

The allegations that Mr Zanders drove a vehicle under the influence of prescription drugs on 28 July 2018

  1. [83]
    Having regard to the evidence, I find that on 28 July 2018, Mr Zanders came to the attention of the QPS due to reports that he was driving dangerously and that blood test results indicated drugs in Mr Zanders’ blood being 0.02mg/kg of Oxazepam, 0.55 mg/kg of Temazepam and less than 0.02 mg/kg of Codeine.
  2. [84]
    I accept that at this point in time, no charges have been made against Mr Zanders in respect of those events and there is no information as to whether the drugs in Mr Zanders’ blood were at therapeutic levels only. There is no indication as to whether charges are likely to be made. There is the possibility that no charges may be made.

The allegations of producing a forged pharmaceutical prescription in July and August 2018

  1. [85]
    Having regard to evidence which is not in dispute, I find that that:
    1. (a)
      In August 2018, Mr Zanders was charged with two offences of uttering forged pharmaceutical prescriptions for Temazepam, Paracetamol/Codeine; and
    2. (b)
      The charges were subsequently discontinued on the basis that the QPS had no evidence to offer.

The allegations that Mr Zanders is reliant on prescription drugs

  1. [86]
    Mr Zanders evidence in relation to him taking prescription drugs is somewhat inconsistent. In oral evidence, Mr Zanders said that he took prescription medication for a couple of months’ around March 2018, being Temazepam for sleeping when he was working shift work and Panadine Forte due to a hurt ankle. In cross-examination Mr Zanders later admitted that he took prescribed medication at least from March 2018 to August 2018. When asked when he ceased taking the medication, Mr Zanders said that maybe it was a couple of months after August 2018 and possibly late 2018 but that he was not sure.
  2. [87]
    Mr Zanders’ evidence is also inconsistent with other evidence. He denied taking any of that medication at the time of the incident on 24 March 2018. However, Constable Curtis’ evidence is that he observed that a significant quantity was missing from a large quantity of Codeine, Tramal and Temazepam on the passenger seat of the car, which had been dispensed only a few days prior.
  3. [88]
    The allegations that Mr Zanders drove a vehicle under the influence of prescription drugs on 28 July 2018 and the allegations of producing a forged pharmaceutical prescription in July and August 2018 are untested. Charges in respect of the latter allegations, and it remains possible also the former allegations, did not proceed on the basis that the QPS had no evidence to offer. The allegations should be considered with that in mind. Nevertheless, viewed in the context of the other evidence before the Tribunal, they are consistent with consistent with a pattern of prescription drug use by Mr Zanders.
  4. [89]
    On the basis of Mr Zanders’ admission, but also noting that it is consistent with the evidence, I find that Mr Zanders was reliant on some or all of prescription drugs including Temazepam, Codeine, Panadine Forte and Tramal during the period of at least from March 2018 to August 2018 and possibly later.
  5. [90]
    Mr Zanders denied that he is currently taking any medication and he denied that he has a problem concerning prescription drugs. However, as I said previously, Mr Zanders was not a compelling witness. I did not find his denial to be particularly persuasive.
  6. [91]
    Further, there is no medical evidence at all which addresses the issue of Mr Zanders’ reliance on prescription medication and certainly no current medical evidence.
  7. [92]
    Mr Zanders’ ongoing reliance on such prescription drugs is relevant to the issue of the public interest issue and whether Mr Zanders is a fit and proper person because it could pose a significant risk to personal and public safety if Mr Zanders has possession of weapons whilst under the influence of such medication
  8. [93]
    Mr Zanders has not demonstrated insight and a preparedness to address risks of future reliance on such prescription drugs. There is no medical evidence which addresses this. On that basis, I cannot be satisfied that there is not a reasonable risk that such reliance on such prescription medication may occur again in the future.
  9. [94]
    For these reasons, I am satisfied that it is not in the public interest for Mr Zanders to hold the firearms licence.

Conclusion and Orders

  1. [95]
    I am satisfied that Mr Zanders is not a fit and proper person to hold the firearms licence on the basis that:
    1. (a)
      I am unable to find that Mr Zanders is currently mentally fit to hold the firearms licence; and further
    2. (b)
      I find that it is not in the public interest for Mr Zanders to hold the firearms licence.
  2. [96]
    In the circumstances, the correct and preferable decision is to confirm the decision of QPS to revoke Mr Zanders’ firearms licence. I make orders accordingly.

Footnotes

[1]Weapons Act, s 142A.

[2]Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors (1995) 131 ALR 657.

[3]Weapons Act, s 3.

[4]Weapons Act, s 4(d).

Close

Editorial Notes

  • Published Case Name:

    Zanders v Queensland Police Service – Weapons Licensing Branch

  • Shortened Case Name:

    Zanders v Queensland Police Service – Weapons Licensing Branch

  • MNC:

    [2020] QCAT 8

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    16 Jan 2020

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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