Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2017
  4. Dyball v Queensland Police Service - [2017] QCAT 20

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Dyball v Queensland Police Service[2017] QCAT 20

Dyball v Queensland Police Service[2017] QCAT 20

CITATION:

Dyball v Queensland Police Service [2017] QCAT 20

PARTIES:

Ben Alexander Ephraim Dyball

(Applicant)

v

Queensland Police Service

(Respondent)

APPLICATION NUMBER:

GAR252-15

MATTER TYPE:

General administrative review matters

HEARING DATE:

18 May 2016; 8 September 2016

HEARD AT:

Toowoomba

DECISION OF:

Member Michael Wood

DELIVERED ON:

17 January 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. That the Decision made on 7 September 2015 to revoke a Firearms Licence held by the Applicant is confirmed

CATCHWORDS:

General Administrative Review – Weapons Act 1990 (QLD) – Review of a decision to revoke a weapons licence – whether the Applicant is a fit and proper person to hold a weapons licence – whether it is contrary to the public interest to hold or possess a Firearms Licences

Queensland Administrative Tribunal Act 2009 (Qld) Sections 18, 19 and 20

Weapons Act 1990 (Qld) Section 3, 10(b), 142(i)(e)

KZT V Weapons Licencing Unit – Queensland Police Service and Commissioner of Police [2016] QCAT 49

MKN V  Chief Executive of the Queensland Department of Justice and Attorney-General (2) [2015] QCAT 452

Smith v Commissioner of Police NSW Police Force anor [2014] NSWCATAD 184

TS v Department of Justice and Attorney-General – Industry Licencing Unit [2015] QCAT 505

Davie v Magistrates of Edinburgh [1953] SC 34, [1953] SLT 54 Cited

APPEARANCES:

 

APPLICANT:

Applicant in person on 18 May 2016, no appearance on 8 September 2016

RESPONDENT:

Inspector Smith – Weapons Licencing Branch 18 May 2016

Mr Capper – QPS Solicitor 8 September 2016

REASONS FOR DECISION

BACKGROUND

  1. [1]
    The Applicant was sworn as a Queensland Police Service Officer on 4 January 1991, and made an application to retire on Medical grounds on 16 January 2008. He was medically retired on 18 July 2008.
  2. [2]
    On 10 June 2015, the Queensland Police Service took a report indicating the Applicant may be a missing person. The Applicant was later located at his home at 18:35 on that day. He was then safe and well. This Missing Person’s Report appears to be the catalyst for a review of the Applicants Weapons Licence by the Weapons Licencing Unit.
  3. [3]
    The Queensland Weapons Licencing Branch on 1 July 2015 issued a suspension notice to the Applicant. Senior Constable Jeremy Lambert of Warwick Police was tasked with serving the suspension documents on the Applicant as required. Senior Constable Lambert had not met the Applicant and his only contact with him was via email for serving the suspension documents. His attempts to serve the documents were met with locked gates at the Applicants residence. Arrangements were made via emails for him to attend at the Applicants residence on 8 July 2015 between 10am and 12pm. Officers attended at the agreed time but the Applicant was not there, this led to a further exchange of emails including an email from the Senior Constable on 14 July as follows:

“Ben, on Sunday a crew went out at the time you said but no one was home. We still need to give you the paperwork. If it is easier, you can come into the station if you are in town. I went out again to your house this morning. If not you need to make another time that suits.

Thanks”.

  1. [4]
    That email was met with the following response on 15 July at 10:34am:

“Jeremy,

I think you have mistaken me for someone else.

I am not impressed by your handling of this issue or by the conduct of those Officers under your supervision. This is clearly a matter of requiring someone with both Seniority and experience.

I do not like cops and strangers coming to my dwelling and you are both. Do not come here again.

I know Mike Curtin. Get Mick to message me, I will deal only with him.”

  1. [5]
    The Applicant subsequently reported that his Firearms Safe had been broken into and Firearms stolen. This report was made by email on 19 August 2015.
  2. [6]
    The Applicant did not address the issues raised by the Queensland Police Service in the suspension Notice within the time permitted. As a result, Queensland Police Service Weapons Licencing Branch issued a revocation notice on 7 September 2015, which specified that the Applicants Firearm Licence was revoked for the following reasons:

“The authorised Officer is satisfied that you are no longer a fit and proper person to hold your licence due to your current mental fitness.

The authorised Officer is satisfied that you are no longer a fit and proper person to hold your licence due to it not being in the public interest.”

CONDUCT OF THE PROCEEDINGS

  1. [7]
    The Applicant filed an application to review that decision in the Magistrates Court in Warwick on 12 October 2015. The proceedings took their ordinary course including various Orders being made with directions in relation to the filing of material. The Hearing was listed for 2 days on 18 and 19 May 2016. The Applicant was cross-examined on 18 May 2016. The Hearing was adjourned on the afternoon of 18 May as during a break in proceedings, the Applicant was told that it was the intention of the Queensland Police Service to arrest him following the days Hearing on charges that were unknown to him. He felt great anxiety and in the interests of fairness, he sought the adjournment of the Hearing, which was granted. It has subsequently transpired that whilst he was giving evidence on that day the Police executed a Search Warrant on his residence and as a result have laid a number of charges against the Applicant. I will refer to these later. On that occasion, directions were made and the Hearing relisted for 8 September 2016.
  2. [8]
    On 8 September 2016, there was no attendance by the Applicant. The only communication from the Applicant was an email sent to the Tribunal at 9:24am, the entirety of which is as follows:

“Please be advised that due to anxiety of having my home raided by Police and being arrested the last time I attended the Hearing, I am not well enough to attend the Hearing today in Toowoomba.

B.A.E Dyball”.

  1. [9]
    On 29 August 2016 the Applicant sought a stay of a decision being the Tribunals decision to hear the review application, the reason for the stay being “as attached” was a medical certificate from Condamine Medical Centre dated 28 April 2016 under the hand of Dr David Doolan, the entirety of which is as follows:

“This is to certify that in my opinion, Ben Alexander aged 48 years is currently not well enough to proceed with Legal proceedings on 18 May 2016. At this stage it is unclear when he will be fit to proceed.”

The application was refused.

  1. [10]
    The Applicant did not seek an adjournment of the trial beyond 8 September 2016 and not withstanding that the Respondent had not completed their cross-examination of the Respondent or had the opportunity to cross-examine other of the Respondents witnesses, they submitted that I should determine the application based on the evidence before me. I consider that this is the most appropriate course.

THE APPLICANT’S OCCUPATIONAL MEDICAL BACKGROUND

  1. [11]
    The Applicants’ Queensland Police Service records show that the Applicant had sick leave intermittently from 2005 until his Medical retirement in 2008. The records show that from 2005, he had anxiety related to workplace conflict with a diagnosis in the medical certificates from Dr Doolan showing an anxiety disorder. In 2007, other medical certificates recorded “depression anxiety panic disorder”; and he was prescribed Lexapro and Alopam.
  2. [12]
    The records show that an application for workers compensation was made for a “Psychological or psychiatric condition” which Ben Dyball states “arose as a result of employment with your organisation.” That detail is contained in a letter from WorkCover to the Queensland Police Service on 29 June 2005. In support of a WorkCover claim, he provided a statement on 20 December 2007. In it, he records that he has made an application for workers compensation for an anxiety disorder because of his employment with the Queensland Police Service. He says that he first became aware, he was suffering from an anxiety related condition in 1999 and then goes on to include details of a deteriorating work relationship, in particular with Sergeant Ross Waugh. He refers in his statement to a previous workers compensation claim, which was denied. The Appeal against the refusal that was unsuccessful. In his statement, he refers to treatment for his “condition” with Dr Ross Hetherington and treatment with a psychologist at the same time. He had been on medication for anxiety, and refers to seeking treatment from Dr Doolan for anxiety in January 2007 and outlined the symptoms of that anxiety. He refers to being prescribed a different medication, which he was on at the time of signing the statement. In his statement, he refers to his deteriorating mental health taking sick leave, commencing 18 October 2007 and making an appointment to see his general practitioner, Dr Doolan who increased his medication on 29 October 2007. He made the Application to retire on medical grounds on 16 January 2008
  3. [13]
    Dr John McIntyre a consultant psychiatrist and Ms Jan Bracher, a consultant psychologist both examined the Applicant and wrote reports to the Queensland Police Service, HR Officer, Employee Assistance Service.
  4. [14]
    Dr McIntyre in his report dated 10 April 2008 records that his report was for the purposes of the application to retire on medical grounds. He records the primary diagnosis of the Applicant as:

Axis I Clinical disorders. Chronic post-traumatic stress disorder and Alcohol Abuse. Axis IV Psychosocial environmental problems.

Some marital strain, career uncertainty, threats to his personal security by a paranoid individual living interstate.

Axis v Global assessment of functioning. Currently 50 with serious impairment in social and occupational function.

  1. [15]
    Dr McIntyre includes a secondary diagnosis that of alcohol abuse, which he says, is “commonly found co-morbidly with and secondary to Post Traumatic Stress Disorder.” He goes on to record the effects of the alcohol and the drinking level reported by the Applicant. In terms of the treatment and form of treatment, he says that the treatment included cognitive behaviour therapy but also medication which was continuing in April 2008. The Doctor records that the treatment would need to be continued long term for the chronic condition. The Doctors view was that, the Applicant was totally incapacitated for duties as a Senior Constable of Police Officer at Stanthorpe owing to his “psychiatric condition”. He goes on to state that the Applicants alcohol abuse should respond favourably to intensive treatment.
  2. [16]
    In Ms Bracher’s report dated 11 April 2008, she felt that the Applicant was likely to have met the criteria for a formal diagnosis of Post-Traumatic Stress Disorder. She records that he self-reported that his use of alcohol had a negative impact on his life and:

“numerous alcohol related problems probable, including difficulties in interpersonal relationships, difficulties on the job and possible health complications.

The Applicant indicates that he is experiencing a discomforting level of anxiety and tension. He is likely to be plagued by worry to the degree that his ability to concentrate and attend significantly compromised….”

  1. [17]
    The Applicant told her that his general practitioner was “currently” treating him with medication and that he was compliant. She says that he is benefiting from the medication. Under a heading of “Current Impairment”, she says

“because of his current psychological condition Senior Constable Dyball would have difficulty performing effectively under adverse conditions. He would also have difficulty sustaining good interpersonal skills. He may not be able to demonstrate proper use of authority and force.”

  1. [18]
    Because of those reports, the Queensland Police Service granted the application for medical retirement.

CRIMINAL HISTORY

  1. [19]
    The Applicants criminal history was in evidence before me, the criminal history includes a charge dealt with in the Warwick Magistrates Court on 15 August 2008 of failing to stop a motor vehicle, careless driving – due care and attention. One penalty was imposed for these charges with a fine of $1,200.00 in default 24 days imprisonment and 4 months disqualification of his licence with no conviction recorded. The only other offences are:
  1. 28 July 2012 - Exceeding the speed limit in the speed zone by more than 20km; and
  2. 9 October 2011 – Registrar operator filed a comply with notice under subsection 2 without reasonable excuse.
  1. [20]
    In relation to the charges dealt with on 15 August 2008, the allegations are that at approximately midnight on 27 October 2007, Police from Warwick Traffic branch were conducting static random breath testing in Warwick. A vehicle driven by the Applicant was directed to pull into the random breath testing area and then pulled up behind a stationary Police vehicle. When the Police approached the vehicle, the vehicle accelerated off and the Police then gave chase, activating their blue and red bar lights. This pursuit was abandoned as it was considered dangerous. The Police subsequently travelling along another road observed the vehicle and attempted to intercept the vehicle activating the Police vehicle lights. This vehicle then continued to travel even after a tyre had left the rim of the vehicle, the vehicle continued on 3 tyres through to New South Wales. The Police subsequently attended the address of the Applicant, who on 31 October 2007 provided a Statutory Declaration that he was the driver at the time of the interception. In relation to this offence in the WorkCover statement he says:

“As I approached the RBT site, I saw a Police Officer directing traffic and he waved me through. I continued to drive on my way home. As I was driving along the Killarney road, I observed a motor vehicle following me with its high beam on. I then turned off into Derreen Road to allow the vehicle to go around me and this vehicle continued to drive along Killarney Road. I continued along the Derreen Road towards Cullendore road and drove to another mate’s house at “Mowamba” located over the border into New South Wales.”

RESPONDENTS STATEMENTS OF EVIDENCE

  1. [21]
    Statements from a number of Police Officers who had worked with the Applicant during his time with the Queensland Police Service were in evidence. They are statements of Colin McCallum, Kenneth Bruce Wigham, Ross Thompson Waugh, Paul Aaron Condon and Lisa Marie Self. The Applicant did not cross-examine those witnesses. In particular, Sergeant Waugh in his statement says that he was the Officer in charge of Warwick Road Policing Unit since 2002 and had the Applicant under his supervision. He summarised the behaviours displayed by the Applicant whilst under his supervision as:
  • “Blatant insubordination;
  • Refusal to comply with specific directions;
  • Untrustworthy behaviour relating to the removal of my personal diaries from my locked personal locker;
  • Driving behaviour inconsistent with standards expected and demanded by a member of the Queensland Police Service;
  • False entries on occurrence sheets;
  • Fail to report damage to Police vehicles;
  • Unauthorised use of/and subsequent damage to Police vehicles; and
  • Sleeping on duty in Police vehicle.”
  1. [22]
    The evidence of Colin McCallum contains details of allegations and complaints made against the Applicant, some of which were substantiated some of which were not. A large number of the allegations referred to in the statement of Colin McCallum were unable to be fully investigated as the Applicant commenced long-term sick leave and remained absent from the workplace. Significantly, McCallum’s statement refers to an incident which occurred on 12 October 2007 which followed a direction given to the Applicant by his superior Officers that he cease using the Queensland Police Service complaint system with his access to be denied to that system. That direction was disobeyed when on 16 October; the Applicant entered a “test” complaint in to the system, which was a breach of discipline. The matter was referred to Ethical Standards Command for investigation and was substantiated. This demonstrates a clear disregard for the direction of his superior officers and an inability to follow clear guidelines.

THE APPLICANTS’ EVIDENCE

  1. [23]
    The cross-examination of the Applicant was incomplete due to his non-attendance at the Hearing on 8 September. Having had the opportunity to observe the Applicant in the Witness box, I found him to be evasive and unable to make appropriate concessions in the face of evidence, which was clearly contradictory of oral evidence, which he gave on the day. He preferred to become belligerent and argumentative with the cross-examiner and attempt to change the subject if he did not wish to answer. I felt that he was tailoring his evidence to what he felt would best serve his interest rather than attempting to give an honest account or recollection of events.
  2. [24]
    There is no doubt that the Applicant suffers from anxiety and Post-Traumatic Stress Disorder. He mentioned that at the outset of the Hearing, seeking concessions and breaks were necessary. He had held a Weapons Licence since they were introduced in Queensland and during that time he had made a number of applications for renewal. He agreed that he had made applications on at least 3 occasions being 19 November 2001, 12 December 2006 and the 10 November 2011. Since his medical retirement, he has undertaken some paid work as a carpet cleaner for about 8 months but currently he was receiving the disability support pension from Centrelink. He confirmed that he had been treated for mental health conditions and that he had been diagnosed with PTSD with anxiety and depression being part of that. He confirmed that he been prescribed medication and currently was prescribed Alopam. He did not recall being prescribed Lexapro.
  3. [25]
    He was asked in cross-examination about his answer in his application to renew the weapons act licence dated 10 November 2011 where he ticked no to the question as follows:

Please indicate if you have required treatment for any of the following in the last 5 years (cross X appropriate boxes)

(d) Psychiatric or emotional problems.

His evidence was that he answered no “because that was the answer to the question”.

  1. [26]
    Clearly having regard to the evidence, which I have summarised above that was not the answer to the question. He was at least in 2008 at the time of the reports by Dr McIntyre and Ms Bracher receiving treatment and medication for the conditions identified by them in their reports which would fall within the category of “Psychiatric and emotional problem”.
  2. [27]
    When asked why he failed to disclose that he had PTSD his response was “the question didn’t ask whether (he) had an illness”. This is an example of the Applicant deflecting questions when giving evidence. He denied in his evidence that he had an alcohol problem. Again, this is inconsistent with the reports from Dr McIntyre and Ms Bracher.

He agreed that he failed to disclose that he had an alcohol problem in his licence renewal in 2011. His evidence before me was that he did not have an alcohol problem.  When pushed again about his the question his renewal relating to psychiatric or emotional problems, his evidence was that he  didn’t consider he had a mental health “problem” but agreed that he had mental health “issues.”

He went on to say that, he did not cross it because the conditions he had were not a “problem”. He felt that the PTSD was not a problem and so he ticked no on the form. He also said that he found the question confusing and later in his evidence went on to say that, he ticked no on his application because he believed that the Queensland Police Service did not have a problem with the PTSD.

  1. [28]
    In terms of his behaviour whilst a Police Officer, he agreed that he failed to properly lodge evidence for use in proceedings as required by the Queensland Police Service but instead, kept the evidence in his own personal locker. He says that the complaints he made about the other superior Officers were made in retribution and that they were based on perceived wrongdoings.
  2. [29]
    In terms of the complaints and in particular his access into the Queensland Police Complaints Service, he agreed that he had made a number of complaints and also said that he had made 20+ complaints about “this QCAT matter”. The complaints were about Smith (I take this to be Inspector Smith of Weapons Licencing Branch) for perverting the course of Justice and destroying documents used in Judicial proceedings.
  3. [30]
    He went on to agree that he had a twitter account with his nickname “MadEyes” as the profile name of that account. He agreed that he posted pictures of deceased persons on Twitter within the last 6 months. At this point, the Applicant was shown a print out of a Twitter account under the profile as ‘MadEyes’ but refused to answer any further questions on the basis of a claim of privilege against self-incrimination. The printout was tendered in evidence before me and the profile picture is of the Applicant. In addition, the profile is headed

“MAD EYES@ephraimdyball

Only when one understands the nature of psychopathy and banking does the world make sense. Retweets are not endorsements stupid. Support LEAP I do.”

  1. [31]
    There are various entries on the Twitter account that concern Weapons Licencing and shows photographs of deceased persons with significant injuries, one of which is captioned with the Applicants Police Identification Number. There are tweets with reference to the removal of his firearms and on April 8 2016, “Everyman should have a ute, a rifle and a chain saw. Two out of three is not good enough.”
  2. [32]
    There is other material with references to Smith and Weapon Licencing Branch in general. These would appear to be direct references to Inspector Smith of Queensland Weapons Licencing.

EVIDENCE FILED SUBSEQUENT TO 18 MAY 2016

  1. [33]
    Pursuant to Directions made by me on 18 May 2016 both the Applicant and the Respondent filed further material before the resumed hearing. The Applicant has not been cross-examined in relation to material filed, which includes further Twitter accounts under the name “Spider Jerusalem”. I do not find them particularly helpful without the opportunity to question the Applicant in relation to them.
  2. [34]
    Futher material filed by the Respondent however, includes Court briefs for following charges
  1. 18 May 2016 – possess utentsils or pipe for use in connection with smoking of a dangerous drug
  2. 18 May 2016 – Possessing dangerous drugs
  3. 18 May 2016 – Possessing and acquiring restricted items
  4. 18 May 2016 – unlawful possession of weapons of category A, B or M in weapons vaults
  5. 4 August 2015 – fail to comply with suspension revocation
  6. Between 8 June 2008 to 19 July 2008 – stealing
  7. 18 July 2008 - Stealing
  8. 18 May 2016 – authority required to possess explosives
  9. Between 5 April 2016 and 9 April 2016 – used a carriage service to menace, harass or cause offence – this relates to the Twitter account referred to above.
  1. [35]
    Charges I-IX arose out of the execution of a search warrant at the Applicants residence and during the course of the execution of that warrant the following items were found:
  1. Quantities of Cannabis – several bongs and cannabis grinders
  2. Two pairs of handcuffs – Police issue
  3. Several bolts from Rifles
  4. Several Identification cards within the Applicants bedroom including the current Queensland Weapons Licence
  5. Quantities of ammunition for Rifles and hand guns
  6. Located Police issued uniforms, duty gear, official Police notebooks, gun holsters, concealable gun holster and several official Police notebooks.
  1. [36]
    In relation to charge IX, it is alleged that the Applicant used a Twitter account to menace, harass or offend contrary to the Criminal Code (Cth).
  2. [37]
    These are of course, charges, which on the evidence before me have not been finalised. The Applicant is entitled to the presumption of innocence in relation to them and I do not place any weight upon the allegations made in the QP9s before me.

LEGAL FRAMEWORK

  1. [38]
    These are proceedings for the review of a decision made by the Queensland Police Service on 7 September 2015, Section 142 (1) (e) The Weapons Act 1990 confers jurisdiction on the tribunal to review a decision revoking or suspending a licence or other authority under the act.
  2. [39]
    The Act permits the tribunal to exercise its review jurisdiction[1] when a person has made an Application to the tribunal to exercise its review jurisdiction. I find that the decision in this case is a reviewable decision. Notwithstanding the failure to appear on 8 September 2016, I am satisfied that I have jurisdiction to proceed to hear the review.
  3. [40]
    In exercising the jurisdiction, the purpose is to produce the correct and preferable decision with the Hearing to be by way of a fresh Hearing on the merits.[2] In undertaking this review, the tribunal must determine whether the Applicant is a fit and proper person, which includes consideration of whether it would be contrary to the public interest for the Applicant to continue to hold a Firearms Licence. I accept the Respondents submission that neither party bears an onus of proof in the traditional sense.
  4. [41]
    The object of the Weapons Act is to prevent the misuse of weapons[3] and has as underlying principle the following:

Weapon possession and use are subordinate to the need to ensure public and individual safety and;[4]

“Public and individual safety is improved by imposing strict control on the possession and requiring the safe and secure storage and carriage of weapon”.

  1. [42]
    The objects are to be achieved as set out in the legislation.[5] A weapons licence may only be issued to a person if they are a fit and proper person to hold a licence. Relevantly for this review, Section 10 b provides;

“In deciding or considering 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. The mental and physical fitness of the person; and
  2. Whether a Domestic Violence Order has been made against the person; and
  3. 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
  1. 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

ii) That authorising the person to possess a weapon aawould be contrary to the public interest; and

  1. The public interest”.
  1. [43]
    In relation to the means of a fit and proper person and public interest, there are no definition of those in the Weapons Act. In a recent decision of this tribunal KZT v Weapons Licencing Unit – Queensland Police Service and Commissioner of Police[6] includes the following:

“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’.

[12] In MKN v Chief Executive of the Queensland Department of Justice and Attorney-General Commissioner of the Queensland Police Service (No 2)[14] the Tribunal summarised the relevant ‘public interest’ cases also referred to in Smith v Commissioner of Police, NSW Police Force and Anor.[15] The relevant extract from MKN’s case is as follows (citations not included):[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”.

I accept that the summary outlined is an accurate reflection of the current law in Queensland.

THE APPLICANTS SUBMISSIONS

  1. [44]
    The Applicant has filed written submissions. The submission continues a history of complaints in relation to the conduct of the Queensland Police Service, in general but in particular in their dealings with him in relation to this licence. He submits however that the tribunal would find that the general community has confidence in his character and reputation and there is sufficient evidence to find that he is a fit and proper person to hold a licence. He then goes on to submit that the tribunal should make a costs order in his favour and refers to an offer to settle made by him during the course of the proceedings.
  2. [45]
    He then makes submissions about the conduct of Inspector Smith in the proceedings and particularises complaints about him.
  3. [46]
    The Applicant submits that the evidence that he provided to the tribunal in relation to his medical fitness is sufficient. He is referring to a “report” from Warwick Mental Health Unit and a referral from Dr Doolan. Those documents were provided to the Respondent after the revocation. I accept however that they are relevant for the purposes of my consideration on this review. The documents referred to do not in fact assist the Applicant. The letter from Dr Doolan which is a referral to Warwick Mental Health Service records that he has a history of anxiety, alcohol abuse, PTSD and depression and that he was taking medication (Alopam).  The report from Warwick Mental Health Service records some notes but in the response letter to Dr Doolan clearly records that Dr Creado (Consultant Psychiatrist) recommends that the Applicant would need an independent review as:

“QPS might regard it as a conflict of interest between two government organisations.”

  1. [47]
    The Applicant also relies upon a Condamine Medical Centre certificate of 11 August 2015 addressed to whom it may concern under the hand of Dr Doolan which says,

“Having read the relevant documents regarding fitness to hold a gun licence and having obtained a recent report from Warwick Mental Health Service, I believe Ben is fit to hold a gun licence.”

  1. [48]
    Each of these documents comprises material which is relevant, they are however of little assistance to the tribunal. The function of expert witnesses is to provide the Tribunal with scientific criteria for application to the proved facts and to present expert opinion, which if accepted, becomes a factor for consideration but it is not to usurp the decision-making role of the tribunal or court.[7] Whilst I accept that this evidence is relevant, I find that, as the evidence does not outline the basis upon which the opinions have been formed and the authors were not available for cross-examination little weight can be placed upon the reports. The Applicant also submits that notwithstanding the completion of the renewal applications in the manner in which he did, that Sergeant Penrose of Weapons Licencing was aware of his medical history as were others given his service as an operational Police Officer and that this was sufficient.
  2. [49]
    I do not accept that the Applicant has complied with his obligations in relation to notifying the medical condition and it is clear on the evidence before me that the Application for renewal of licences, in particular the application in 2011 were inaccurate.

THE RESPONDENTS SUBMISSIONS

  1. [50]
    The Respondent submits that I would accept that the Applicant has disingenuously asserted that he was uncertain as to what the questions posed in completing his renewal applications. They submit that the Applicant has failed to demonstrate any insight or remorse into his conduct and further has engaged in a belligerent email and Twitter campaign against the authorised Officer, raising serious concerns about his future conduct. They submit that I would find that he is neither a fit and proper person nor would it be in the public interest for him to hold a weapons licence.

CONCLUSION

  1. [51]
    Earlier in these reasons, I made findings in relation to the manner in which the Applicant gave his evidence. I must prefer the respondents’ evidence where there is conflict between their evidence and that of the Applicant.Overall I was unimpressed with the applicant as a witness and find it difficult to accept any of his oral evidence. The respondents’ evidence is left unchallenged due to the Applicant not attending the Hearing on 8 August. The Applicant in addition to not himself attending the Hearing on 8 September did not produce his own witnesses for cross-examination by the Respondent. Where I have referred to facts throughout the course of my reasons, they should be regarded as a finding of fact unless I have expressed a contrary intention.
  2. [52]
    The Applicant has in my view, deliberately or at least recklessly answered questions in his applications for renewal of his weapons licences in an attempt to avoid any further queries relating to his mental health and alcohol issues. On the evidence before me, the applications to renew signed on 10 November 2011 and 12 December 2006 contain the same misleading statements.
  3. [53]
    The Applicant has shown a complete disregard for authority, in particular by his criminal history when at a time when he was a serving Police Office, he disobeyed a direction of a Police Officer at a random breath test and then avoided the Police to the point where they called off a pursuit of him by reason of safety.
  4. [54]
    The Applicant has shown in his conduct whilst a serving Police Officer that he lacks respect for authority and in his conduct since evidenced by his conduct towards Senior Constable Lambert when Senior Constable Lambert was attempting to serve a Suspension Notice, he does not respect the authority of the Police. He is prepared to publish on his Twitter account disrespectful material including photographs and comments.
  5. [55]
    On balance, I am not satisfied that the Applicant is a fit and proper person to hold a weapons licence, I am further satisfied that it is not in the public interest that he do so.
  6. [56]
    I confirm the decision of 7 September 2015 to revoke the firearms licence of the Applicant.

Footnotes

[1] Section 18(1) QCAT Act 2009 (Qld).

[2] Section 20 QCAT Act 2009 (Qld).

[3] Section 3(2) Weapons Act 1990 (Qld).

[4] Section 3(i) Weapon Act 1990 (Qld).

[5] Section 4 Weapons Act 1990 (Qld).

[6] [2016] QCAT 49.

[7] Davies v Magistrates of Edinburgh (1953) SC348.

Close

Editorial Notes

  • Published Case Name:

    Ben Alexander Ephraim Dyball v Queensland Police Service

  • Shortened Case Name:

    Dyball v Queensland Police Service

  • MNC:

    [2017] QCAT 20

  • Court:

    QCAT

  • Judge(s):

    Member Wood

  • Date:

    17 Jan 2017

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
AJO v Director-General Department of Transport [2012] NSWADT 101
1 citation
Jump To
Cite 1 - [2012] NSWADT 101
Davie v Magistrates of Edinburgh [1953] SLT 54
1 citation
Jump To
Cite 1 - [1953] SLT 54
Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34
1 citation
Jump To
Cite 1 - (1953) SC 34
Davies v Magistrates of Edinburgh (1953) SC 348
1 citation
Jump To
Cite 1 - (1953) SC 348
KZT v Weapons Licensing Unit - Queensland Police Service [2016] QCAT 49
2 citations
Jump To
Cite 1 - [2016] QCAT 49
Cite 2 - [2016] QCAT 49
MKN v Chief Executive of the Queensland Department of Justice (No 2) [2015] QCAT 452
1 citation
Jump To
Cite 1 - [2015] QCAT 452
Smith v Commissioner of Police NSW and Ors [2014] NSWCATAD 184
2 citations
Jump To
Cite 1 - [2014] NSWCATAD 184
Cite 2 - [2014] NSWCATAD 184
TS v Department of Justice and Attorney General - Industry Licensing Unit (No 2) [2015] QCAT 505
1 citation
Jump To
Cite 1 - [2015] QCAT 505

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.