FGH v Queensland Police Service – Weapons Licensing
[2016] QCAT 478
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- Unreported Judgment
- FGH v Queensland Police Service – Weapons Licensing[2016] QCAT 478
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FGH v Queensland Police Service – Weapons Licensing[2016] QCAT 478
FGH v Queensland Police Service – Weapons Licensing[2016] QCAT 478
CITATION: | FGH v Queensland Police Service – Weapons Licensing [2016] QCAT 478 |
PARTIES: | FGH (Applicant) v Queensland Police Service – Weapons Licensing (Respondent) |
APPLICATION NUMBER: | GAR102-16 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 12 October 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Olding |
DELIVERED ON: | 22 November 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The decision of the Queensland Police Service – Weapons Licensing dated 17 March 2016 rejecting the Applicant’s application for a firearms licence is confirmed. |
CATCHWORDS: | ADMINISTRATIVE REVIEW – WEAPONS LICENSING – whether a fit and proper person – meaning of public interest – where applicant failed to comply with interstate licensing provisions – where applicant employed silencing device – where applicant posted comments about firearms use on Facebook. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Weapons Act 1990 (Qld), ss 3, 4, 10, 10B O'Sullivan v Farrer (1989) 168 CLR 210 Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 TS v Department of Justice and Attorney-General – Industry Licensing Unit and Anor (No 2) [2015] QCAT 505 |
REPRESENTATIVES and APPEARANCES: |
|
APPLICANT: | represented by Mr NR Collins of Hawthorn, Cuppaidge & Badgery |
RESPONDENT: | represented by Senior Sergeant AT Cavanagh of the Queensland Police Service – Weapons Licensing |
REASONS FOR DECISION
- [1]The Applicant, Mr FGH, applied for a Queensland firearms licence in respect of four rifles. The Respondent, Queensland Police Service – Weapons Licensing (“QPS”), rejected the application. Mr FGH has applied to the Tribunal for review of the decision to reject the application.
- [2]At the hearing, Mr Collins appeared for Mr FGH and Senior Sergeant Cavanagh represented QPS.
- [3]The Tribunal must decide the review, with reference to the requirements of the Weapons Act 1990 (Queensland) (“the Weapons Act”) and by way of a fresh hearing on the merits to produce the “correct and preferable decision”.[1]
The Weapons Act
- [4]The principles underlying the Weapons Act are:
- weapon possession and 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 the safe and secure storage and carriage of weapons.[2]
- [5]The object of the Act is to prevent the misuse of weapons.[3]
- [6]
- [7]Section 10B sets out the requirements for determining whether a person is a fit and proper person to hold a firearms licence.
- [8]On the evidence, there is no suggestion, and QPS did not submit, that any of subsections 10B(2) to 10B(5) applies in this case.
- [9]That leaves subsection 10B(1), which has the effect that, in deciding whether Mr FGH is a fit and proper person to hold a firearms licence, I must consider, among other things, five factors. I deal with the consideration of these factors later in these reasons.
Facts not in contention
- [10]I understand the following facts are not in contention.
- [11]Mr FGH was raised in country New South Wales. He is passionate about guns and likes to hunt, shoot vermin and sometimes take part in target shooting.
- [12]He has owned rifles for some years and held the appropriate licence under the New South Wales weapons licensing laws. He has undertaken courses in safe handling of weapons in New South Wales and Queensland.
- [13]As an adult, Mr FGH has moved to and from Queensland a number of times. However, he has not returned to New South Wales since last moving to Queensland in March 2013 with his then wife, Ms JKL.
- [14]Mr FGH brought his rifles with him when he moved to Queensland in March 2013.
- [15]Mr FGH and Ms JKL separated in or around June 2014 and have recently divorced. Around the time of the separation, Ms JKL applied for a domestic violence order in respect of Mr FGH and obtained a temporary protection order, which was made in the absence of, and without the knowledge of, Mr FGH.
- [16]After a subsequent hearing of the application, the Court declined to make a domestic violence order. No domestic violence order, other than the temporary protection order, has been made in respect of Mr FGH.
- [17]As he was no longer a resident of New South Wales, Mr FGH’s New South Wales firearms licence was cancelled when this came to the attention of the New South Wales Firearms Registry in mid-2014. There is no record of any concern by the New South Wales Firearms Registry regarding Mr FGH’s possession, use or storage of his rifles before he moved to Queensland.
- [18]On receiving information that Mr FGH had rifles at his home, for which he did not hold a Queensland firearms licence, QPS investigated Mr FGH for, and duly charged him with, unlawful possession of firearms and ammunition, having executed a search warrant at his home and seized his rifles and ammunition.
- [19]When the charges came on for trial, the magistrate hearing the matter determined that the search warrant had not been validly issued as it purported to be issued by a Justice of the Peace rather than, as the magistrate held was required, by a magistrate.[6] The charges were therefore dismissed.
- [20]The magistrate ordered that the seized rifles be held by QPS pending the outcome of Mr FGH’s application for a Queensland firearms licence. The rifles continue to be retained by QPS.
- [21]The timeline at Appendix One sets out my findings on the timing of certain key events.
The “silencer” issue
- [22]On 3 April 2013, Mr FGH posted on Facebook a photograph of his four rifles and some ammunition in a wardrobe at his home, accompanied by the words “I wana go play”.
- [23]A printout of the Facebook entry shows an exchange between Mr FGH and an XYZ (female name), as follows:
FGH: Mad fun. My silencer blew up some how when i shot at somthin in my yard otha day lol went loud cause i was unda tin roof lol oops
XYZ: Hahahahahaha nice (followed by a smile emoticon)
FGH: Were is ya these days
FGH: Im bak at wacol matildas for work ay
- [24]Mr FGH also described the use of a home-made silencing device, made from pieces of conduit and washers, in a recorded interview with Constable Ziersch on 16 July 2014. He described in some detail the use and perceived virtues of the device and the problem with it being blown to pieces.
- [25]In oral evidence, Mr FGH denied ever using a silencing device. He explained the Facebook entry as an attempt to impress a woman, saying “I was just sort of talking meself up a bit”. He said he did not give Constable Ziersch this explanation because he was concerned that Constable Ziersch, who had executed the search warrant at Mr FGH’s home, had been talking to his then wife, Ms JKL and he did not want Ms JKL to know that he had been “flirting” with another woman on Facebook.
- [26]Whichever way one looks at this, it does not reflect well on Mr FGH. On his own account, he lied to a police officer, Constable Ziersch, in connection with a matter related to use of firearms. If Mr FGH’s recanting is not accepted, and what he described on Facebook and to Constable Ziersch is true, Mr FGH recklessly discharged a firearm at a suburban property and employed a dangerous and unlawful silencing device.
- [27]A recording of the interview with Constable Ziersch was put in evidence and I have listened to it. The explanation that Mr FGH gave in evidence at the Tribunal hearing is implausible against the background of his detailed comments in the interview and his statements in the Facebook post. Further, Mr FGH’s explanation for the comments, posted shortly after he arrived in Queensland and within days of moving into their new home, does not sit comfortably with his evidence that he moved to Queensland to please his wife and try to sort out his marriage difficulties.
- [28]Additionally, the evidence Ms JKL gave by telephone included that Mr FGH had discharged his rifle in their suburban back yard. I accept her evidence in this regard.
- [29]I find that Mr FGH employed a dangerous and unlawful home-made silencing device and discharged a rifle at a suburban property.
The weapons storage issue
- [30]Mr FGH gave evidence that, since residing at the Queensland property, he has always stored his rifles in a locked safe in the shed at the property, which was also kept locked.
- [31]Ms JKL gave evidence that it was not until Mr FGH received a letter from the New South Wales weapons licensing authority in 2014 that he acquired a weapons safe and started to store the rifles in a safe. Before that, Ms JKL said, they had been stored in a wardrobe in the house.
- [32]In favour of Mr FGH’s account, I note that both Ms PQR (Mr FGH’s mother) and Mr STU provided statements attesting to his safe handling and storage of his rifles.[7]
- [33]On the other hand, the photograph posted on Facebook shows the rifles in a wardrobe. It seems unlikely that Mr FGH, as he asserted to be the case, would have brought the rifles into the house from the shed and placed them in a wardrobe for the purpose of photographing them. Why would he have included ammunition with the rifles if the purpose of putting them in the wardrobe was to photograph the rifles?
- [34]Nor do I find the hypothesis put forward by Mr Collins, that there may have been better lighting in the wardrobe, persuasive. Of all the places in the home where better lighting for photography might have been found, why would one choose a wardrobe?
- [35]I accept Ms JKL’s evidence that the rifles were stored in a wardrobe in the house until Mr FGH purchased the safe in 2014.
- [36]There was also ammunition pictured with the rifles in the Facebook photographs. Under both Queensland and New South Wales legislation, ammunition must not be stored with firearms.[8]
- [37]I accept Mr FGH’s evidence that the rifles were held in locked storage when they were held at his father’s home in New South Wales and in Queensland once he purchased the safe.
Residence issues
- [38]Section 33 of the Weapons Act establishes a mechanism for temporary recognition of an interstate firearms licence for interstate residents moving to Queensland. It is enlivened if an interstate resident gives written notice to the QPS of their “intention to reside permanently in Queensland”. For the category of firearms relevant to this case, the interstate licence is taken to be a Queensland licence for a period of three months, unless an application for a Queensland licence is approved or rejected at an earlier date.
- [39]As no such notice was ever given by Mr FGH, section 33 has no application in this case.
- [40]Nevertheless, there was much debate at the hearing about when Mr FGH formed the intention to reside permanently in Queensland. That seems to be because an information notice on the QPS website about moving to or from Queensland says that, for Mr FGH’s category of firearms:
“you have a three (3) month period in which to make an application for a Queensland weapons licence.
The stipulated period begins when you take up permanent residency in Queensland.
As long as you apply for a Queensland weapons licence within those timeframes, your interstate licence will be mutually recognised until a decision is made on your application.”
- [41]The web information does not refer to the section 33 requirement for the interstate resident to give written notice, although it does end with the statement that “Section 33 of the Weapons Act 1990 stipulates the requirements for interstate licensees moving to Queensland permanently”.
- [42]In any case, Mr Collins agreed that there was no evidence that Mr FGH had seen or relied upon the web information.
- [43]Mr FGH maintains that he moved to Queensland in March 2013 to try to sort out difficulties with his marriage to Ms JKL and that, until he received the letter from the New South Wales Firearms Registry in mid-2014, he had not decided to settle permanently in Queensland. At that time, he says he needed to decide where to reside permanently and decided that he would reside permanently in Queensland.
- [44]Ms JKL maintains that it was always intended that the move would be permanent.
- [45]It may be that this difference in their evidence reflects their differing predispositions at the relevant time, Ms JKL being from Queensland and Mr FGH being from New South Wales. However, on any view the couple took up residence in Queensland in March 2013, whether or not they respectively considered the move to be permanent.
- [46]I do not accept Mr FGH’s evidence that he intended to return to New South Wales in “a month or two”. Shortly after arriving, the couple executed a 12-month lease on a residence and Mr FGH applied for and obtained a Queensland driver’s licence, obtained employment in Queensland and acquired a Queensland-registered motor vehicle. Even accepting, as I do, Mr FGH’s evidence that he thought he was signing a 6-month lease, and that he would have been prepared to “break” the lease, these actions are inconsistent with an intention to return to New South Wales in “a month or two”.
- [47]Although there was some debate about the extent to which their belongings were left in New South Wales, and the significance of that, it is clear that sufficient of Mr FGH’s and Ms JKL’s effects for day-to-day living on a long-term basis were moved to Queensland.
- [48]As a licensee under the New South Wales Firearms Act 1996, Mr FGH had an obligation under section 69 of that Act to notify the New South Wales Firearms Registry of any change of residential address within 7 days. After moving to Queensland in March 2013, Mr FGH took no steps to notify this change of address until June 2014, notwithstanding that his New South Wales licence included on its reverse the prompt:
“Change of name or address – contact the Firearms Registry on 1300 362 562”.
- [49]Additionally, under section 16 of the Firearms Regulation 2006 (NSW), Mr FGH was obliged to advise the Firearms Registry within 14 days of the change in address at which his licensed firearms were kept and the arrangements for safe-keeping and storage of the firearms at that address. Mr FGH did not attend to either of these obligations.
- [50]It follows that the New South Wales authority was unaware of both the address of Mr FGH as licensee and the location of the four rifles the subject of the New South Wales licence for over a year.
- [51]Nor did Mr FGH take any steps to inquire into his obligation to obtain a Queensland firearms licence during this extended period of residence in Queensland. Even after he received the letter from the New South Wales Firearms Registry he did not take immediate steps to ascertain his legal obligations and rectify his non-compliance.
- [52]Mr FGH variously sought to explain his failure to attend to these obligations on the basis that he did not know of the requirement to notify the New South Wales Firearms Registry (although he also gave evidence that he had notified a previous change of address and accepted that he knew of that notification requirement); that he was not good with paperwork; and that he was busy “working flat out, 7 days a week” and “had a lot on my plate”. In the recorded interview with Constable Ziersch, Mr FGH said that, even after he made contact with the QPS about licensing requirements, he did not proceed immediately as he did not have the money for the licence application fee.
- [53]I find that Mr FGH did not attempt to ascertain and comply with his obligations in respect of firearms licensing arising out of his change of residence in March 2013 until June 2014. He also seems to have difficulty accepting the significance of his non-compliance, maintaining at the hearing that he did not see a problem with it as he still considered that New South Wales was his home and he was just in Queensland for work.
Statements about criminal charges
- [54]Question 6(a) in the application for a firearms licence completed by Mr FGH asks:
“Have you in Queensland or elsewhere EVER [emphasis in form] been charged with any offence? (Please tick yes even if you were charged but not convicted or a conviction was not recorded.)”
- [55]Mr FGH ticked “yes” and attached an annexure in which he stated:
- [56]He did not refer to any other charges.
- [57]By letter dated 8 July 2015, QPS called upon Mr FGH to show cause why he should be considered a fit and proper person to hold a firearms licence “having regard to your previous offences”.
- [58]In his response dated 30 September 2015, Mr FGH stated: “I am not aware of having any criminal history” and noted that he had applied for a copy of his criminal history record.
- [59]A National Police Certificate that issued on 26 October 2015 at Mr FGH’s request noted that “there are no court outcomes in the records of the Australian police services that are disclosable” for Mr FGH.[9]
- [60]Given the timing, it is clear that Mr FGH could not have been misled by this certificate when completing the application form. In any case, the application form asks about charges, not convictions, and, as noted, emphasises that the question relates to charges whenever made.
- [61]Aside from traffic offences, the evidence established and, apart from one early charge, Mr FGH did not deny, that he had in fact been charged with eight offences, in addition to the weapons and ammunition offences that were dismissed after the successful challenge to the validity of the search warrant.
- [62]In oral evidence, Mr FGH said that he did not understand these actions involved charges. He said he thought that, apart from a driving under the influence of alcohol charge, the others were “just fines”.
- [63]Having regard to his demeanour when giving evidence, the other occasions when Mr FGH on his own evidence was prepared to make untruthful statements[10] and his demonstrated preparedness to give inaccurate evidence when he apparently thought it may assist his case[11], I do not accept that Mr FGH was unaware of any of these 8 charges when he completed the application for a firearms licence. I note that Mr FGH made an unprompted reference to having “charges” against him as a young person in the recorded interview with Constable Ziersch.
- [64]Most of these charges occurred when Mr FGH was a minor, although some occurred more recently, the most recent (excluding traffic charges) approximately ten years before he lodged his application for a Queensland firearms licence, when Mr FGH would have been just under 22 years of age.
- [65]There was also an incident at Caboolture in 2006 in which Mr FGH entered into a drug diversion arrangement in lieu of a charge in connection with allegations of possession of cannabis. Senior Sergeant Cavanagh advised me that such arrangements require an admission of guilt.
- [66]Mr FGH gave evidence that, although he was at the premises when police found the cannabis, he was not himself in possession of the cannabis. However, he told the police that he was, and entered into the diversion arrangement, apparently to protect a friend from the consequences of the friend’s criminal action.
“I am uncertain as to whether at law I have ever been charged with any offences since the only charges ever made against me . . .”
and went on to reference the charges of unlawful possession of firearms and ammunition which were dismissed following the successful challenge to the search warrant.
Mr FGH’s New South Wales Firearms Licence card
- [67]It is a requirement that, upon cancellation of a New South Wales firearms licence, the former licensee “must immediately surrender” the licence to police. There is a statement to this effect in the letter sent to Mr FGH advising that his licence had been cancelled.
- [68]At the time of the hearing, Mr FGH had not returned the licence to the police.
Approach to evidence of Ms JKL
- [69]Ms JKL appeared by telephone after being required to do so by a Notice to Attend issued by the Tribunal.
- [70]As mentioned earlier, Ms JKL gave evidence that, until Mr FGH bought a safe in 2014 after receiving a letter from the New South Wales weapons licensing authority, his rifles were stored in an unlocked wardrobe in the couple’s house; that Mr FGH discharged the rifles at targets at their home; and that when they moved to Queensland in March 2013 she intended to stay permanently in Queensland. She expressly refrained from giving evidence of Mr FGH’s intention in that regard.
- [71]Mr Collins submitted that I should reject Ms JKL’s evidence in its entirety on the basis that it was not truthful and had been given for the purpose of harming Mr FGH.
- [72]This submission appears to have been based on two factors. The first was that Ms JKL had applied for and obtained a temporary protection order against Mr FGH, but after a hearing of the application for a final domestic violence order, the application was rejected by the Court. I took Mr Collins to mean that I should infer that Ms JKL made false allegations against Mr FGH and therefore should not be regarded as a truthful witness.
- [73]The second was that Mr Collins submitted that Ms JKL had been evasive in cross-examination about whether the application for a domestic violence order had been withdrawn or dismissed after a full hearing, eventually accepting that it was the latter.
- [74]Allowing for the difficulties of assessing the credit of a witness giving evidence by telephone, I found Ms JKL to be straightforward in the evidence that she gave. My impression was that she was initially, and genuinely, confused by the questioning about whether the application for a domestic violence order was withdrawn or dismissed, and she quickly confirmed that it was dismissed once she understood the questioning.
- [75]Additionally, in respect of the key factual controversies touched upon in Ms JKL’s evidence – whether the rifles had been stored in a wardrobe and whether Mr FGH had discharged them at their Queensland address – Ms JKL’s account is consistent with Mr FGH’s own Facebook entry.
- [76]In an affidavit prepared in connection with the application for a licence, Constable Ziersch stated that Ms JKL had told him that Mr FGH had threatened her and that she appeared to be frightened of Mr FGH. However, no evidence was given in her statement or lead from Ms JKL at the Tribunal hearing of any threats or the like by Mr FGH. Mr FGH denied threatening Ms JKL. In these circumstances, I have not given any weight to this aspect of Constable Ziersch’s statement.
Character witnesses
- [77]Three witnesses provided statements in support of Mr FGH. As Senior Sergeant Cavanagh indicated at the hearing that these witnesses would no longer be required for cross-examination, they were not required to give oral evidence.
- [78]Ms PQR, who is Mr FGH’s mother, stated that Mr FGH had always been a responsible gun owner and had never faced any allegations of misusing his weapons. Her statement also confirmed that Mr FGH had moved to and from Queensland on several occasions and until recently had always returned to New South Wales. It was only in late 2014 that Mr FGH told Ms PQR that he would be staying in Queensland indefinitely.
- [79]Mr VWX stated that he had known Mr FGH for about five years and had employed him during this time over two periods at a service station. Mr VWX found Mr FGH “to be a reliable, responsible, honest and ethical individual in both business and social circles”. He had offered Mr FGH full-time employment but Mr FGH had stated that he was going back to New South Wales and that casual employment suited him.
- [80]Mr STU stated that he had known Mr FGH for about seven years on a professional and personal basis. He had found him to be responsible and of high integrity. He had observed Mr FGH performing duties within licensed premises and adhering to the laws relating to responsible service of liquor.
- [81]Mr STU had also seen Mr FGH using his firearms and at all times found his approach to safety to be “well within legal requirements of safe operations, handling and storage”. He did not elaborate upon what legal requirements he had observed Mr FGH complying with or in what context.
Is Mr FGH a fit and proper person to hold a firearms licence?
- [82]To answer this question, section 10B of the Weapons Act states that the decision-maker “must consider, among other things (emphasis added) -
- (a)the mental and physical fitness of [Mr FGH]; and
- (b)whether a domestic violence order has been made against [Mr FGH]; and
- (c)whether [Mr FGH] has stated anything in or in connection with an application for a licence . . . [Mr FGH] knows is false or misleading in a material particular; and
(ca) [considerations relating to “criminal intelligence” which are not relevant in this case]; and
- (d)the public interest.”
- [83]There is nothing in the evidence that raises any issues relating to the mental or physical health of Mr FGH.
(b) whether a domestic violence order has been made against Mr FGH
- [84]Tracing through the relevant definitions,[12] the temporary protection order made against Mr FGH is a domestic violence order for this purpose.
- [85]However, as the application for a final domestic violence order was dismissed after a hearing, and there was little other evidence of weight relevant to this matter, I consider that the issue of the temporary protection order is of neutral effect; in the circumstances, it does not count against Mr FGH being a fit and proper person to hold a firearms licence.
(c) whether [Mr FGH] has stated anything in or in connection with an application for a licence . . . [Mr FGH] knows is false or misleading in a material particular
- [86]I have concluded (see [63] above) that Mr FGH knowingly omitted any reference to his previous criminal charges. This dishonesty in dealing with the police in connection with firearms counts against a conclusion that Mr FGH is a fit and proper person to hold a firearms licence.
(d) the public interest
- [87]In different contexts, the High Court has held that the expression “public interest” and like expressions in a statute generally import a discretionary value judgement confined only by the subject matter, scope and purpose of the statute, and will often involve balancing of interests, including competing public interests.[13]
- [88]In the current context, competing interests include the public’s interest in assurance that the weapons licensing regime is appropriately administered and the legitimate interests of responsible members of the public who wish to own and use firearms in accordance with the strict rules laid down by Parliament.
- [89]In considering the public interest in a particular case, full regard must be given to the statutory principle that weapon possession and use are subordinate to the need to ensure public and individual safety.
- [90]That principle does not mean that difficult judgements can be avoided merely by deference to the principle. But where the history and attitude of an applicant are inconsistent with proper regard for Parliament’s stated objectives of public and individual safety, and the means by which Parliament has determined those objectives are to be pursued, consideration of the public interest will weigh against a conclusion that the applicant is a fit and proper person to hold a firearms licence.
- [91]In this case, there are several aspects of Mr FGH’s history that indicate a lack of concern with the detail of his obligations under the weapons licensing regime:
- Failing for over a year to comply with the requirement to notify a change of address from New South Wales to Queensland within 7 days.
- Failing for over a year to comply with the requirement to advise the new firearm storage arrangements following that change of address.
- A continuing lack of appreciation of the significance of those failures.
- Storing firearms in an unlocked cupboard rather than a locked safe.
- Storing ammunition with the rifles in the cupboard, contrary to legislative requirements.
- Failure to return his cancelled licence to the New South Wales Firearms Registry, notwithstanding a statutory requirement to do so and a written prompt from the Registry.
- Discharging his rifle at a suburban property.
- Use of an illegal and unsafe silencing device.
- Posting comments about the use of the silencing device and discharge of a rifle at his home on Facebook, thereby potentially encouraging other mis-use of firearms and lack of respect for safety requirements.
- [92]Even if one were to accept Mr FGH’s explanation of the Facebook post, the entry reinforces for me a concern that Mr FGH does not approach firearm ownership with sufficient seriousness for the community to be confident that, if licensed, he would comply with his obligations in the future.
- [93]The public interest is also served by applicants for firearms licences dealing honestly with those responsible for administration of the licensing regime. There are aspects of Mr FGH’s behaviour that point against a conclusion that the public could be confident that he will conduct himself honestly.
- [94]In relation to the silencer incident, either Mr FGH’s evidence to the Tribunal was untruthful or his statements in the interview with Constable Ziersch were untruthful. His statement on the application for licence regarding previous criminal charges is further evidence of less than fully honest statements, as is his assertion under oath, which I have rejected, that he intended to stay in Queensland for only a month or two.
- [95]So, too, is his evidence that he falsely confessed to being in possession of cannabis in order to save a friend from the consequences of the friend’s illegal behaviour, although I give little weight to this in view of the passage of time since this incident.
- [96]Overall, I consider that public interest considerations point against Mr FGH being a fit and proper person to hold a firearms licence.
Conclusion on fit and proper person
- [97]Mr Collins and Senior Sergeant Cavanagh referred me to various firearms licensing cases involving more or less egregious conduct. Since each case involves weighing up the competing considerations arising out of their own factual matrix, I have not found reference to such cases particularly helpful.
- [98]Again in a different context, the High Court has said in relation to the expression “fit and proper person” that, depending on the nature of the activities the subject of the test, “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.”[14] Those considerations are apposite in the current context.
- [99]In Mr FGH’s favour, there is evidence, which I accept, that he has been a diligent employee. In particular, he has observed his legal obligations in respect of the responsible service of alcohol in circumstances that I infer would, from time to time, involve pressure not to do so.
- [100]Further, he has not been investigated for, nor is there any evidence of, any breaches of firearms licensing laws in respect of his New South Wales firearms licence, aside from the failure to notify his change of address and details of the new storage arrangements for the weapons following the move to Queensland.
- [101]Mr FGH has no convictions for crimes involving violence or drug use and has not been charged with any such offences. The eight historical charges referred to above, although not trivial, were not at the serious end of the spectrum. Having regard to the passage of time and Mr FGH’s age at the time of the charges, I have given no weight to the fact of these charges having been laid against Mr FGH.
- [102]However, the factors summarised at [91]-[92] above - including the long period of non-compliance with, and professed ignorance of, the requirement to notify a change of address and storage arrangements for the weapons; use of an illegal and unsafe silencing device; and failing to store the rifles appropriately - taken together evidence a lack of concern with understanding and complying with the legal requirements for holding a firearms licence.
- [103]Having regard to those factors, and notwithstanding the countervailing considerations in his favour, I cannot conclude that Mr FGH is a fit and proper person to hold a firearms licence. Applying the High Court’s questions, significant improper conduct has occurred and in my view the general community could not have confidence that it will not occur again.
- [104]The incidents of dishonesty summarised at [94] above further support this conclusion, which I would reach in any event.
- [105]It follows that the decision under review must be confirmed.
Appendix One – Timeline of key events
No. | Date | Description | Evidence |
21 January 2010 | New South Wales Firearms Licence issued to Mr FGH. | Copy of application for Firearms Licence (Qld) (Exhibit 1, Folio 266). | |
14 August 2012 | Mr FGH called the New South Wales Firearms Registry to update his residential address from one NSW address to another NSW address in the same town. | Statement of an officer of the NSW Firearms Registry (Exhibit 2, Folios 947-8). Call confirmed by Mr FGH. | |
March 2013 | Mr FGH and Ms JKL moved from New South Wales to Queensland, staying for about a week with Mr FGH’s friend before moving into a home in Queensland. | Mr FGH’s and Ms JKL’s evidence. | |
25 March 2013 | Mr FGH and Ms JKL executed a tenancy agreement in respect of the property at a a Queensland address, commencing 28 March 2013 and ending 27 March 2014. The agreement continued on until it finally terminated on 23 September 2014. | Bond lodgement records produced by the Residential Tenancies Authority (Queensland) (Exhibit 3). | |
3 April 2013 | Mr FGH’s Facebook entry. | Copy of entry (Exhibit 2, Folio 964). | |
7 April 2013 | Mr FGH was issued with a Queensland driver’s licence. | Copy of Driver’s Licence (Exhibit 1, Folio 275). | |
12 May 2014 | Letter from New South Wales Firearms Registry advising Mr FGH to apply for a Queensland firearms licence. | Copy of letter (Exhibit 2, Folio 952). | |
June 2014 | Mr FGH attended Rosewood Police Station to inquire about firearms licensing requirements. | Evidence of Mr FGH. | |
13 June 2014 | Mr FGH first contacted the New South Wales Firearms Registry regarding living in Queensland. | Statement of an officer of the NSW Police Firearms Registry (Exhibit 2, Folios 947-8). | |
June 2014 | Mr FGH and Ms JKL separated. | Copy of Annexure A to Application for Firearms Licence (Qld) (Exhibit 1, Folio 267). Evidence of Mr FGH and Ms JKL. | |
10 July 2014 | Constable Ziersch executed a search warrant at Mr FGH’s Queensland home, opening a gun safe in the shed with keys handed to him by Ms JKL, and seized Mr FGH’s rifles and a quantity of ammunition. | Evidence of Constable Ziersch. | |
14 July 2014 | Mr FGH’s New South Wales Firearms Licence was revoked. | Copy of letter dated 14 July 2014 from NSW Police (Exhibit 1, Folio 274). | |
15 July 2014 | Ms JKL filed an application for a domestic violence order (DVO) and a temporary protection order was made on or around this date. | Copy of annexure A to Application for Firearms Licence (Qld) (Exhibit 1, Folio 267). Evidence of Mr FGH and Ms JKL. | |
16 July 2014 | Mr FGH voluntarily attended Rosewood Police Station where Constable Ziersch undertook a recorded interview. | Evidence of Mr FGH and | |
17 November 2014 | Hearing of application for DVO, resulting in a finding that there were no breaches of the temporary protection order and dismissing the application for a final DVO. | Copy of annexure A to Application for Firearms Licence (Qld) (Exhibit 1, Folio 267). Evidence of Mr FGH and Ms JKL. | |
12 or 13 February 2015 | Summary hearing in the Ipswich Magistrates Court of charges against Mr FGH of unlawful possession of firearms and ammunition, with charges dismissed following a successful challenge of the validity of the search warrant. | Evidence | |
1 May 2015 | Mr FGH completed an application for a Queensland Firearms Licence. | Copy of Application for Firearms Licence (Qld) (Exhibit 1, Folios 262 and following). | |
26 October 2015 | National Police Certificate issued advising that “there are no court outcomes in the records of the Australian police services that are disclosable” for Mr FGH. | Copy of National Police Certificate Exhibit 4, Folio 9). |
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
[2] Weapons Act 1990 (Qld), s 3.
[3] Ibid, s 4.
[4] Ibid, s 10.
[5] Ibid, s 10(2)(e).
[6] At the Tribunal hearing there was some debate about whether the magistrate was correct in concluding that the warrant had to be issued by a magistrate. I remain unable to understand, and neither Mr Collins nor Senior Sergeant Cavanagh explained, why that is relevant to the decision the Tribunal is required to make.
[7] See further at [78] and [80]-[81] respectively.
[8] Explosives Regulation 2003 (Qld), s 86; Firearms Act 1996 (NSW), s 40.
[9] Convictions for summary offences are not disclosable after a rehabilitation period of 5 years under the Criminal Law (Rehabilitation of Offenders) Act 1968 (Qld), s 6.
[10] In relation to the drug incident (see [66]) and the Facebook entry (see [25] and [26]).
[11] See [46] regarding Mr FGH’s evidence that he intended to stay in Queensland for only a month or two.
[12] Weapons Act 1990 (Qld), Schedule 2, definition of “domestic violence order”; Domestic and Family Violence Protection Act 1990 (Qld), s 23(2)(b).
[13] O'Sullivan v Farrer (1989) 168 CLR 210 at 216; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 72 ALR 1 at 5. Other authorities are helpfully summarised in MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2) [2015] QCAT 452 and this summary of principles was adopted in KZT v Weapons Licensing Unit – Queensland Police Service [2016] QCAT 49.
[14] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380. Other authorities and principles are helpfully summarised in TS v Department of Justice and Attorney-General – Industry Licensing Unit and Anor (No 2) [2015] QCAT 505 at [12] and this summary of principles was adopted in KZT v Weapons Licensing Unit – Queensland Police Service [2016] QCAT 49.