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Stretton v Queensland Police - Weapons Licensing[2016] QCAT 219

Stretton v Queensland Police - Weapons Licensing[2016] QCAT 219

CITATION:

Stretton v Queensland Police - Weapons Licensing [2016] QCAT 219

PARTIES:

Trevor James Stretton

(Applicant)

v

Queensland Police - Weapons Licensing

(Respondent)

APPLICATION NUMBER:

GAR106-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

24 - 25 May 2016

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

5 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of 7 April 2015 of the Queensland Police – Weapons Licensing to revoke Firearms Licence Number 12616391 and Concealable Firearms Licence Number 30015359 is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – Weapons Act 1990 (Qld) – where review of decision to revoke weapons licence – where substantial number of weapons, registered and unregistered found – where weapons had accumulated over generations – where weapons were a familiar part of the applicant’s life on a rural property – whether the applicant is a fit and proper person and/or contrary to the public interest to hold or possess a weapons firearms licence

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 19, 20, 24, 66

Weapons Act 1990 (Qld), ss 3, 10B, 30, 142,  142A, 143, sch 2

Weapons Regulations 1996 (Qld) rr 39, 40,

60(5)

KZT v Weapons Licensing Unit - Queensland Police Service & Commissioner of Police [2016] QCAT 049: 

MKN v Chief Executive of the Queensland Department of Justice and Attorney General (No 2) [2015] QCAT 452;

Australian Broadcasting Tribunal v Bond & Ors (1994) ALR 11;

Smith v Commissioner of Police, NSW Police Force and Anor [2014] NSWCATAD 184;

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

APPEARANCES:

APPLICANT:

Mr M. White of Counsel for Mr Stretton

RESPONDENT:

Acting Inspector C. Bradford for Queensland Police - Weapons Licensing

REASONS FOR DECISION

  1. [1]
    The morning of 2 December 2013 started as a normal day for Trevor Stretton on his 550 acre property near Woodford in South East Queensland.  Mr Stretton had been up about three times since before dawn, trying to shoot the wild dogs that were attacking his weaners in a holding pen at the back of the sheds close to his house.
  2. [2]
    Mr Stretton is a grazier and butcher who runs his butchering business from his property, butchering some of his cattle and buying some for meat.  As Mr Stretton has neighbours who do not consent to the use of baits, he says he must shoot the wild dogs to protect his cattle.
  3. [3]
    Mr Stretton had three gun licences and that morning, had for the first two encounters with the dogs, used a longarm and for the last encounter, a pistol. During the rest of the morning, the longarm was beside Mr Stretton’s bed and the ammunition was in his pocket. The loaded pistol had been placed in a heavy bank safe in his house.  Mr Stretton says he thought he would probably have to use the weapons again that day.
  4. [4]
    At about midday, a number of police arrived at Mr Stretton’s property to execute a search warrant in relation to potential federal offences of unlawfully supplying weapons. The police included representatives from the Drug and Serious Crime Unit, the State Drug Investigation Team, the Stock Squad, local police and officers from the State Firearms Investigation Team. 
  5. [5]
    Detective Sargent Grant Linwood was part of the Firearms Investigation Team of the Queensland Police Service (and was a member of a joint task force including officers from the Australian Federal Police (‘AFP’) and the New South Wales Police investigating alleged trafficking of firearms and drugs within Queensland and New South Wales) attending Mr Stretton’s property that day. 
  6. [6]
    The AFP was the lead agency and Detective Sargent Linwood was aware that the AFP was lawfully intercepting a number of telephones. These investigations identified Mr Stretton as a person of interest.
  7. [7]
    Detective Sargent Linwood takes up the story. He said the police conducted a systematic search of the property. At each stage, first general scene photographs were taken, and then, as weapons were found, each weapon was photographed, numbered and entered into a handwritten field property receipt by officers at the direction of the Detective Sargent.[1]
  8. [8]
    In all, Detective Sargent Linwood said across the whole property, 112 weapons or part of weapons of various categories were seized, ranging from category A to category R. As well, the Owen Machine gun found has not been licensable in Queensland since the 1920’s and two silencers also found are weapons that have never been able to be legally held in Queensland. In all, there were 98 complete firearms.
  9. [9]
    Thirty-six of the seized weapons were actually registered to Mr Stretton’s then licenses. 
  10. [10]
    On 7 April 2015, Mr Stretton’s three licenses (an occupational licence for longarms, a license for concealable firearms for rural lands and a collectors licence for one heirloom firearm) were revoked by a decision of the then Acting Sargent Linwood. Mr Stretton was found to not be a ‘fit and proper’ person to hold these licences under section 29 of the Weapons Act 1990 (Qld).
  11. [11]
    Mr Stretton filed an application to review this decision. 
  12. [12]
    Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the function of this Tribunal on review. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.[2]
  13. [13]
    The purpose of the review is to produce the correct and preferable decision and is heard and determined by way of a fresh hearing on the merits.[3]
  14. [14]
    Mr Stretton says he has owned his current property since 1999-2000 and shifted there after the death of his father in 1999.
  15. [15]
    Mr Stretton’s family has a long rural history in Queensland and in the Northern Territory and a long history of gun usage and collection.  Mr Stretton remembers his father owning the first family property in about 1947 of some 400 square miles, followed by two later properties of 1,000 square miles and 8,000 acres.
  16. [16]
    As each property sold, the plant and equipment (including any existing guns) transferred from property to property. One hundred and ninety tons of equipment was moved, by Mr Stretton’s reckoning, in the last move to his current property.
  17. [17]
    Amongst this equipment were two 44 gallon drums containing his father’s and grandfather’s guns and guns sourced from friends or past employees on the various family properties. Mr Stretton did not pack these drums and he says he was not initially aware what was contained in them.
  18. [18]
    Mr Stretton says having so many old guns on his property worried him once he knew they were there, so he decided to bury them in the drums in the hay shed floor (with hay bales on top), to keep them out of harm’s way.
  19. [19]
    Mr Stretton has a pilot’s licence and his family had cattle agisted in the Gulf of Carpentaria in the 1980s.  Flying into this area required the plane to carry a designated survival kit containing a dismantled gun and ammunition.  Under Mr Stretton’s bed, the police found two of these survival kits - with the dismantled guns and ammunition intact, although Mr Stretton says they were originally stored in the drums.
  20. [20]
    Mr Stretton estimated his own gun collection of some 30 to 40 guns.  He says they were all licensed and therefore he did not need to access the other weapons in the sealed drums.
  21. [21]
    Mr Stretton says in early 2013, the Queensland Government had a gun amnesty. He dug up the drums and spoke to the owner of the Woodford gun shop about handing in those he could not legally register to his licences.
  22. [22]
    Mr Stretton says the gun shop owner told him he could only surrender some of the guns. With hindsight, this advice appears to have been wrong.  Mr Stretton could have surrendered any of the guns to police or other firearms dealers. It appears that the particular dealer was only licensed to receive categories A and B, although this was not explained to Mr Stretton.
  23. [23]
    However, Mr Stretton made no further attempts to legally dispose of the weapons other than to start discussions with the local RSL.  He says he left the nine or so guns found in the wardrobe of his bedroom there because he thought they would eventually go to the RSL.
  24. [24]
    In the end, after the seizure, one pistol for which Mr Stretton did have a heritage licence went to the RSL.
  25. [25]
    There had been previous amnesties since Mr Stretton found the guns in the drums. There had been a ‘buy back’ and amnesty in 1996-97, a national amnesty for handguns in 2003 and a further State Government amnesty in 2007-8. In fact, Mr Stretton sold returned guns in the 1997 ‘buy back’, receiving compensation for the guns at that time.[4]
  26. [26]
    The Police Service says it is hard to accept that Mr Stretton did not understand the terms of any gun amnesty, as he had participated in them before – although in its view, only when he could be paid for the guns he was surrendering.
  27. [27]
    The 2013 amnesty was over by mid-year in 2013. The search warrant was enacted in December of that year – many months after the end of the amnesty, yet many of the firearms on the property were not securely or legally stored at that point. 
  28. [28]
    Detective Sargent Linwood says the weapons were found in four main areas – in and around the house, in a large lockable shipping container in a workshop shed, in crates on the roof of the shipping container in the workshop shed, in a motor vehicle in the same shed and in two 44 gallons drums in the hay shed (behind the workshop shed).
  29. [29]
    On 16 February 2015, Mr Stretton pleaded guilty to one count of failing to keep weapons in secure storage, two counts of failing to ensure a firearm was unloaded and one count of possessing a magazine for a category R weapon.
  30. [30]
    Under a notice to attend issued by the Police Service, by Mr William O'Toole gave evidence. Mr O'Toole was a person of interest to the police and had purchased meat from Mr Stretton on occasions.  He initially gave evidence in open hearing but after an application made during Mr O'Toole’s further evidence, an order was made pursuant to section 142A of the Weapons Act.
  31. [31]
    Section 142A requires the Tribunal to ensure that it does not, in the reasons for its decision or otherwise, disclose the content of any criminal intelligence on which the decision is based. In order to prevent the disclosure of the criminal intelligence, the Tribunal must receive evidence and hear argument in the absence of the public, applicant for review and the applicant’s lawyer.[5]
  32. [32]
    I was satisfied the evidence of Mr O'Toole, if disclosed, potentially could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the Weapons Act.[6]
  33. [33]
    [Redacted].
  34. [34]
    [Redacted].
  35. [35]
    [Redacted].
  36. [36]
    [Redacted].
  37. [37]
    To attest to his character, Mr Stretton provided a variety of personal references from many senior people in his local community.  These references show Mr Stretton as having been actively involved in the business, social and political life of his community for many years.  All of the references provided were written in the knowledge of the police charges, for which Mr Stretton pleaded guilty.
  38. [38]
    These referees hold Mr Stretton in high regard and attest to the longstanding involvement he has had in serving his community.  He has been an environmental ranger since 1974 and has served on such committees as the Kilcoy Racing Club, The Cattle Council of Australia and the Cattlemen’s Union of Australia.
  39. [39]
    Mr Stretton also gave evidence about the security measures he has in place at his property.  He said he has cameras, an alarm system that rings his mobile phone and numerous dogs.  He said there have never been intruders at the property.
  40. [40]
    The principles underlying the Weapons Act are as follows:[7]

(1) The principles underlying this Act are as follows—

  1. (a)
    weapon possession and use are subordinate to the need to ensure public and individual safety;
  1. (b)
    public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.

(2) The object of this Act is to prevent the misuse of weapons.

  1. [41]
    A licence may only be issued to an individual if a person is a fit and proper person to hold a licence.[8]
  2. [42]
    Counsel for Mr Stretton relied on Magarry v Queensland Police Service, Weapons Licensing Branch[9] where the learned Senior Member adopted the High Court in the decision of Bond[10] and held that the term ‘fit and proper’:

…takes it meaning from its context and 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 it will not occur or whether the general community will have confidence that it will not occur.

  1. [43]
    The learned member in the decision of in KZT v Weapons Licensing Unit - Queensland Police Service & Commissioner of Police[11] said as follows:

[11] In relation to the meaning of ‘fit and proper person’ and ‘the public interest’, there is no definition in the Weapons Act. In TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2)[12] the Tribunal summarised some of the relevant cases that have considered the meaning of ‘fit and proper person’. The relevant extract from TS’s case is as follows (citations not included):[13]

In Smith v Commission of Police, NSW Police Force and Anor [2014] NSWCATAD 184 [citation added] Senior Member Montgomery said ‘fitness and propriety’ is a question of fact to be determined objectively based on all of the evidence… In Smith’s case, reference was made to AJO v Director-General Department of Transport [2012] NSWADT 101 [citation added] because it provides an overview of relevant authorities that have considered the meaning of ‘fit and proper’. Some of the cases referred to in AJO’s case are now summarised:

  • 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’…
  • The concept of ‘fit and proper’ must be looked at in the context of the activities that the person is or will be engaged. ‘…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 public will have confidence that it will not occur’. Although not an exhaustive list, character (indication of ‘likely future conduct’) or reputation (indication of public perception as to ‘likely future conduct’) may be ‘sufficient’ to find a person is not ‘fit and proper’ to undertake certain activities…
  • The expression ‘fit and proper’ must be given the ‘widest scope;’ and determined upon its own circumstances…
  • The applicant must show not only that he is ‘possessed of a requisite knowledge of the duties and responsibilities evolving upon him’ as the holder of a particular licence but must also show he has ‘sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…’…
  • ‘Fitness and propriety are flexible concepts’. It involves an assessment of the person’s ‘knowledge, honesty and ability in the context of the role they are seeking to undertake…’…
  • The discretion vested in determining whether a person is ‘fit and proper’ must be exercised to ‘give wide scope for judgement and allow broad bases for rejection’.
  1. [44]
    Further, In MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2)[14] the learned Member summarised the relevant ‘public interest’ cases referred to in Smith v Commissioner of Police, NSW Police Force and Anor.[15] The extract from MKN’s case is as follows:[16]

In Smith’s case, Senior Member Montgomery said that the ‘public interest’ is designed to give the ‘broader interests of the community priority’ over the private interests… Senior Member Montgomery summarised relevant cases from courts and tribunals that have considered the concept of the ‘public interest’. Some of those cases are now summarised as follows:

  • The ‘public interest’ is ‘a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities.... The interest is therefore the interest of the public as distinct from the interest of an individual or individuals’.
  • The ‘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’.
  • An applicant’s personal interests ‘in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry’.
  • The “public interest” allows… for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system’.
  • The ‘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’.
  • An applicant’s personal interests ‘in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry’.
  • The “public interest” allows…for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system’.
  1. [45]
    All of these decisions are respectfully relied upon in these reasons when considering the meaning of ‘fit and proper person’ and public interest’ in the context of this legislation.
  2. [46]
    Mr Stretton submitted:
    • The fundamental considerations are whether Mr Stretton is a fit and proper person and the public interest consideration;[17]
    • He has had no previous convictions;
    • He says the guns in the drums were in a terrible condition and he did not know what to do as he feared any consequences, so he simply buried them;
    • He says he further relied on the advice of the local gun dealer about disposal of the guns in the last 2013 gun amnesty;
    • Mr Stretton also relied on his references about his character and community support, which he says were unchallenged by the Police Service;
    • Mr Stretton pointed to the sentencing remarks of his Honour Judge Noud in the District Court on 16 February 2015;
    • He says he has no prospects or likelihood of re-offending.
  3. [47]
    The Police Service submitted as follows:
    • the Weapons Act is not about punishment but about being a fit and proper person to have the privilege of owning a registered firearm;
    • the offences were not a ‘one off’ mistake but had been ongoing over many years and was a deliberate decision by Mr Stretton not to comply with the Weapons Act about storage and possession of weapons;
    • Mr Stretton had firearms haphazardly stored in various unsecured places. Storing them on a container and under hay are not secure and anyone could access the firearms;
    • There was a threat of trespassing ongoing on a rural property;
    • Mr Stretton was required to comply with the storage requirements of the Weapons Act and he did not even come close to those requirements – some guns were even stored loaded and ready for use;
    • When put to Mr Stretton in cross-examination, he understood the strict requirements of a pilot’s licence (the Police Service submits an analogous licence) and that it would be revoked if he did not comply, yet he did not comply with the strict requirements of the Weapons Act;
    • Looking at Mr Stretton’s conduct over many years he has shown contempt of the Queensland laws regarding weapons.  For example, he held many banned guns and silencers - even a machine gun, knowing they were not registerable. 

Discussion

  1. [48]
    The concept of ‘fit and proper’ must be considered in the context of the activities that Mr Stretton is, or will be engaged in and is a value judgment. The expression must be given its ‘widest scope’; and determined upon its own circumstances. 
  2. [49]
    Mr Stretton must show that he possesses the requisite knowledge of the duties and responsibilities as the holder of a particular weapons licence and acts upon them.
  3. [50]
    Mr Stretton is in his seventies. He has had guns around him for the whole of his personal and professional life. They are part of the fabric of his life and he clearly is at ease with them. He enjoys owning and using them both professionally and recreationally. He sees them as a necessity for his professional life and earning his living. Wild dogs are a problem for him as his property is in part, mountainous bushland.
  4. [51]
    This familiarity had lead him to be very lax with his adherence to the rules in Queensland for the ownership and storage of weapons. I do not doubt he understands the legal requirements for use and storage of the various categories of firearms - and those for which he cannot have possession under any licence – he just had not done it, other than in a very limited way.
  5. [52]
    He did store his licensed guns in the locked shipping container but because of the quantity of guns involved, even this storage did not comply with the regulations.  Where there are collections of a total of 30 category A,B,C or D weapons, particular storage conditions are prescribed.[18] Mr Stretton did not meet these extra storage conditions.
  6. [53]
    There are also strict storage requirements for guns in motor vehicles,[19] also not met by Mr Stretton on the day of the execution of the warrant.
  7. [54]
    Mr Stretton did identify all of the guns on his property to the police, including the guns in the drums.  Detective Sargent Linwood observed however, this was only after he was asked.
  8. [55]
    Mr Stretton readily concedes he has been foolish and regrets the actions he did or did not take for the quantity of guns found.
  9. [56]
    The principles underlying the Weapons Act make it clear that weapons possession and use are subordinate to the need to ensure public individual safety and the object of the Act is to prevent the misuse of weapons.
  10. [57]
    In making this decision on review, it becomes a matter of balance.
  11. [58]
    On one hand Mr Stretton is clearly an upright member of his community, respected by many influential people and very remorseful for his actions and carelessness in the handling and storage of his firearms. In part, this is because they are a familiar part of his life.
  12. [59]
    On the other hand, Mr Stretton has been careless and cavalier with his registered guns and even more remiss with the unregistered guns. 
  13. [60]
    There is also a submission that he has been involved in the illicit gun trade (although this is denied) or at least, that he only surrenders guns for value – i.e., when there is a buyback attached to an amnesty. I do not place great weight on this submission in the absence of supporting evidence but this does to serve to colour the context of the considerations in this matter.
  14. [61]
    I do not accept that at all times in the hearing, Mr Stretton was telling me the truth – for example, concerning his contact with Mr O'Toole.
  15. [62]
    In the main, I accept that Mr Stretton was telling me the truth as he saw it.  However, on some matters, where he thought I might find against him, I am satisfied he was either not telling me the whole story or giving evidence he thought might suit his cause.
  16. [63]
    I am satisfied this was the case for his evidence concerning how he could legitimately surrender the unlicensed guns he held. A man who had been involved with guns for all of his life, and who participated in amnesties and buy-backs in the past, would, in my view, know or know how to find out, the correct method to surrender the illegal guns that were passed down to him when they were discovered by him. He did not surrender the illegal guns when he could.
  17. [64]
    I do accept his evidence of the damage to his property and livelihood inflicted by wild dogs and the constraints placed on him because of neighbours, and about how he is able to deal with these incursions. However, there are other ways to deal with these incursions, such as by obtaining the assistance of friends or family or using professional licensed shooters.
  18. [65]
    The guns in the motor shed were locked (although not appropriately) and the drums were sealed and covered in hay – sufficient to not be discovered by the Police until they were pointed out.
  19. [66]
    These storage methods were not appropriate and in line with the requirements of storage and usage for guns generally – licensed or unlicensed.
  20. [67]
    The Police Service submits in light of these failings, and on the basis of the sheer number of weapons found unlicensed, Mr Stretton should now be barred from holding any licence and the current decision confirmed.
  21. [68]
    Having the advantage of observing Mr Stretton, I see a respected community man and generally law abiding person, who has a knowledge and love of guns, who has used them all his life but who became careless, cavalier and acted foolishly in his approach to the weapons and their storage, mainly through familiarity.
  22. [69]
    I found Mr Stretton’s credit as a witness lacking in some areas and the sheer numbers of weapons and laxity as to storage and his responsibilities for the unlicensed guns, to be factors sufficient for me not be comfortably satisfied that he should hold weapon’s licences going forward.
  23. [70]
    On balance, whilst I accept that Mr Stretton is otherwise an upstanding member of the community, I cannot be satisfied that Mr Stretton is a fit and proper person for the purposes of holding a weapons licence under the relevant legislation. 
  24. [71]
    I confirm the decision of 7 April 2015 of the Queensland Police – Weapons Licensing to revoke Firearms Licence Number 12616391 and Concealable Firearms Licence Number 30015359.

Footnotes

[1]See exhibit 13.

[2]QCAT Act s 24(1).

[3]Ibid s 20.

[4]See exhibit 7.

[5]Weapons Act s 142A(2)(b) and s 143(3)(b).

[6]Ibid s 142A(3)(b).

[7]Weapons Act s 3.

[8]Ibid s 10(2)(e).

[9][2012] QCAT 378.

[10]Australian Broadcasting Tribunal v Bond & Ors (1994) ALR 11, at [56].

[11][2016] QCAT 049 at [11] – [12].

[12][2015] QCAT 505.

[13]TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505 at [12].

[14] [2015] QCAT 452.

[15][2014] NSWCATAD 184.

[16] [2015] QCAT 452 at [14].

[17] Weapons Act ss 10(2)(e), 10B.

[18] Weapons Regulations 1996 (Qld) rr 39, 40, 60(5).

[19] Ibid r 61.

Close

Editorial Notes

  • Published Case Name:

    Stretton v Queensland Police - Weapons Licensing

  • Shortened Case Name:

    Stretton v Queensland Police - Weapons Licensing

  • MNC:

    [2016] QCAT 219

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    05 Jul 2016

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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