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Bignell v Queensland Police Service – Weapons Licensing[2019] QCAT 211

Bignell v Queensland Police Service – Weapons Licensing[2019] QCAT 211

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Bignell v Queensland Police Service – Weapons Licensing [2019] QCAT 211

PARTIES:

LINDEN CORY BIGNELL

(applicant)

 

v

 

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR301-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 July 2019

HEARING DATE:

29 April 2019, with further material received on
4 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member McDonnell

ORDERS:

The decision under review is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where decision made to revoke on basis licensee is no longer a fit and proper person to hold a licence due to firearms related conduct – whether applicant is a fit and proper person to hold a licence

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

Weapons Act 1990 (Qld), s 3, s 10B

Australian Broadcasting Tribunal v Bond [1990] HCA 33

CAT v Queensland Police Services [2017] QCATA 43

Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 131 ALR 657

Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115

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

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Sergeant D Ayscough, Queensland Police Service – Weapons Licensing

REASONS FOR DECISION

Introduction

  1. [1]
    On 28 August 2018 a decision was made to revoke Linden Cory Bignell’s firearms licence number 26547668 on the basis that an authorised officer was of the opinion that he was not a fit and proper person to retain a firearm’s licence as it was not in the public interest.
  2. [2]
    Mr Bignell has applied for a review of that decision pursuant to s 142 of the Weapons Act 1990 (Qld). 

Background 

  1. [3]
    Mr Bignell has held a weapon’s licence (Recreational Shooting A and B and Shooting Club A and B) in Queensland since 16 September 2014.
  2. [4]
    On 31 December 2017, Mr Bignell, 2 of his children, his brother-in-law, Mr Caleb McIntosh and his 2 children, then 5 and 6 years old, were at Mr Bignell’s home at Perseverance where Mr Bignell had lived since early 2014. It was a 13 hectare property separated from neighbours, Mr and Mrs Chambers, by a road. The topography was not flat. Rather, Mr Bignell’s home was at the top of a hill and Mr and Mrs Chambers’ home was in a valley.
  3. [5]
    That evening, prompted by the observation by one of his sons that hares were eating recently planted, small trees, Mr Bignell decided to take the group out to shoot the hares. This was the first occasion he had gone shooting on this property. Mr Bignell used the firearm while the rest of the group undertook the task of ‘spotlighting’ the hares.
  4. [6]
    The shooting was undertaken from 2 locations on the property. It is unclear the number of shots fired but Mr McIntosh gave evidence that after the events of the evening there were some bullets left in the magazine, which had a 10 round capacity. Both Mr Bignell and Mr McIntosh observed that no buildings or lights could be seen from either shooting location and believed the shooting was into the side of a hill.
  5. [7]
    Approximately 20-30 minutes later police arrived at Mr Bignell’s home to make inquiries regarding a shooting. Mr and Mrs Chambers had been eating dinner in their outdoor area earlier in the evening, with the lights on, when Mr Chambers was shot in the hand as his hand had been lifted to his mouth to eat.
  6. [8]
    As a result of these events Mr Bignell was charged with discharging of a weapon on private land without owner’s consent and dangerous conduct with a weapon. On
    20 February 2018 he pleaded guilty to these offences and was fined, with no conviction recorded.[1]
  7. [9]
    As a result of these events an authorised officer suspended Mr Bignell’s weapons licence on 23 January 2018[2] and revoked it on 28 August 2018.[3]
  8. [10]
    Mr Bignell’s criminal history includes a 1996 offence for which no conviction was recorded and a 1996 speeding offence resulting in 3 demerit points and a fine. The Tribunal places no weight on these matters in its consideration of the applicant as a fit and proper person to hold a weapons licence. 

The law relating to the review

  1. [11]
    The purpose of the Tribunal’s review is to produce the correct and preferable decision,[4] on the evidence before it and according to law. For the review, the Tribunal stands in the shoes of the decision maker and makes the decision following a fresh hearing on the merits.[5] On review, the Tribunal may confirm or amend the decision; set the decision aside and substitute its own decision; or set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with or without directions.[6]
  2. [12]
    The entitlement to own and use firearms is regulated by the Weapons Act 1990 (Qld) (‘the Act’).
  3. [13]
    The principles and object of the Act are set out in s 3:

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

(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. [14]
    A licence may be revoked under s 29 of the Act if, relevantly, the authorised officer is satisfied that the licensee is no longer a fit and proper person to hold a licence.[7] Section 10B(1) of the Act provides that in determining whether a person is fit and proper the following matters, amongst other things, must be considered:

(a) the mental and physical fitness of the person; and

(b) whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and

(c) whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and

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

(i) the person is a risk to public safety; or

  1. (ii)
    that authorising the person to possess a weapon would be contrary to the public interest; and

(d) the public interest.

  1. [15]
    The expression ‘fit and proper person’ is not defined in the Act. The High Court in the decision of Australian Broadcasting Tribunal v. Bond & Ors[8] 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. [16]
    The Act requires also that the public interest be taken into account in determining whether a person is fit and proper to hold a licence. The public interest is a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation.[9]
  2. [17]
    The Court observed in Director of Public Prosecutions v Smith[10] that:

The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals

  1. [18]
    For the present purposes the term should be considered in the context of the object of the Act, to prevent the misuse of weapons.[11] In support of this object, public and individual safety are to take precedence over weapon possession, with strict requirements for licensing imposed.[12] Accordingly, when considering the public interest in the present context, individual and public safety are important factors to be taken into account.

Consideration

  1. [19]
    Mr Bignell no longer lives in Queensland having moved to the Northern Territory in August 2018, at about the time he sought this review. He gave evidence that he found out during the course of these proceedings that should his licence be returned to him, as he is no longer a resident of Queensland, he ceases to be eligible to hold the weapons licence. He indicated that, with this new knowledge, he pursued this review as he wishes to apply for a weapons licence (so that he may undertake recreational shooting with his children) and the equivalent of a blue card in the Northern Territory and is concerned that a decision to revoke this licence will impact adversely on those applications.
  2. [20]
    Mr Bignell gave evidence that prior to becoming licensed in Queensland he had held a weapons licence in New South Wales and in total has held a weapons licence for in excess of 26 years. He does not require a weapons licence for occupational purposes, although his evidence is that in the past he did shoot professionally.
  3. [21]
    While there is no formal onus of proof on either party, Mr Bignell clearly has a practical onus to establish that he is a fit and proper person.[13]
  4. [22]
    Mr Bignell says he is a fit and proper person to hold a weapons licence and that the respondent would have come to a different decision if all the relevant facts of the night of 31 December 2017 were before the decision maker. He says the relevant facts are that he has no criminal conviction, that he is a person of excellent character, and that the Magistrate found the actions of 31 December 2017 were accidental.  These facts were before the original decision maker.
  5. [23]
    He described the events in question as an unfortunate accident, and said that he was not reckless, and he thought he had a safe shot. He believed that he was shooting into a hill, and considered that at all times he was practising safe shooting.   
  6. [24]
    The Tribunal formed the view in the course of Mr Bignell’s oral evidence, that he did not accept responsibility for his actions, instead questioning the evidence of others in these proceedings and as well as statements made in the course of the investigation. In particular, Mr Bignell:
    1. (a)
      Observed that he did not consider Mr Chambers’ statement to be completely correct as he did not understand how Mr Chambers could be confused about whether he had been shot by a bullet or something else;
    2. (b)
      Questioned the police observation that the events were ‘millimetres from being a homicide investigation’[14]; and
    3. (c)
      Suggested that an ambulance officer who attended the scene to treat
      Mr Chambers should be called to give evidence in the present proceedings to address whether the injury may have been self-inflicted.  
  7. [25]
    Mr Bignell displayed no insight into either the appropriateness of his actions of that night nor the consequences of his actions.[15] Further, these remarks suggest to the Tribunal that Mr Bignell does not accept responsibility for his actions and is not remorseful.
  8. [26]
    The Tribunal has taken into account character references provided by Mr Larry Bell dated 29 May 2018, Mr Nicholas Borrows (undated) and two from Mr McIntosh, one dated 16 February 2019, and the other undated.[16] Only Mr McIntosh was cross examined. Each of these witnesses was aware of the circumstances giving rise to the revocation of Mr Bignell’s licence and all spoke of safe weapons handling and practices by Mr Bignell which they personally witnessed. The Tribunal accepts this evidence. 
  9. [27]
    While one of the referees indicated that Mr Bignell would be devastated by the loss of his weapons licence this is not relevant to the Tribunal’s consideration on review.
  10. [28]
    The respondent says that the events leading to the charges indicate that Mr Bignell is not a fit and proper person to hold a licence; that Mr Bignell, using a .22 calibre rifle with a danger range of 1.5km, shot in the dark on a small property, across a public road, which resulted in Mr Chambers, who was sitting at his home approximately 600 metres away, being shot.
  11. [29]
    Statements and victim impact statements from Mr and Mrs Chambers[17] were provided to the Tribunal. Clearly, the events of the evening were traumatic for both of them; they suffered and continue to suffer pain and other physical symptoms as well as financial loss, emotional impacts and lifestyle changes. Mr and Mrs Chambers both indicate that the shooting has adversely impacted their feeling of safety while in their home.
  12. [30]
    At the Tribunal’s request, the respondent provided the transcript of the sentencing remarks of the Magistrate at Mr Bignell’s guilty plea and the Tribunal invited the parties to make submissions in respect of these remarks.  The transcript was provided to the Tribunal on 4 June 2019.  Neither party provided submissions.
  13. [31]
    It is evident that the Magistrate took into consideration: Mr Bignell’s early plea of guilty; his remorse; his good character; and that it was an accident, while recognising the offences were quite serious, each carrying a term of imprisonment. The Magistrate observed that it was a case of Mr Bignell ‘not taking proper care in respect of the use of the weapon’. 
  14. [32]
    In making its decision the Tribunal is required to consider:
    1. (a)
      The conduct of Mr Bignell giving rise to the decision to remove his licence; and
    2. (b)
      The evidence relevant to Mr Bignell’s character including his general character, his insight into the behaviour giving rise to the licence removal, his understanding of the Act and his obligations under the Act.[18]
  15. [33]
    Mr Bignell’s use of weapons on 31 December 2017 was reckless, careless and unsafe. While the Tribunal accepts that the incident was an accident, it resulted from carelessness in the handling of a weapon and as a result of that carelessness serious harm was caused to Mr Chambers.
  16. [34]
    Mr Bignell chose to shoot in circumstances where he was clearly disorientated – instead of shooting into a hillside, he was, whilst in the dark, shooting in the direction of a neighbour’s house and over a public road. In so doing, he exhibited a disregard for the exercise of weapons’ safety and for the safety of the public.
  17. [35]
    The public is entitled to expect proper care be exercised by a firearms licence holder. Public interest demands that the holder of a weapons licence exercise greater caution in the use of weapons than was displayed by Mr Bignell. Public and individual safety is paramount.
  18. [36]
    Of further concern to the Tribunal is Mr Bignell’s failure to accept responsibility for his actions.  Consequently the Tribunal cannot be satisfied that Mr Bignell, finding himself in the same situation at some point in the future, would act differently than he did that night. 
  19. [37]
    Consistent with the concept of ‘public interest’ and the objects of the Act, the Tribunal must not place Mr Bignell’s personal interest in holding a weapons licence above the need to ensure public and individual safety.
  20. [38]
    The Tribunal considers that Mr Bignell lacks insight into his careless actions and the consequences of them, that it is not in the public interest for him to hold a weapons licence and accordingly the correct and preferable decision is that Mr Bignell is not a fit and proper person to hold a weapons licence under the Act.

Conclusion   

  1. [39]
    Having considered the evidence before the Tribunal, including the oral evidence and the factors in s 10B of the Act, the Tribunal is not satisfied that Mr Bignell is a fit and proper person for the purposes of holding a weapons licence under the Act.
  2. [40]
    The decision under review is confirmed.

Footnotes

[1]  Ex. 1, p. 20.

[2]  Ex. 1, p. 4-5.

[3]  Ex. 1, p. 22.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 20.

[5]  QCAT Act, s 20.

[6]  QCAT Act, s 24(1).

[7]  The Act, s 29(1)(d). 

[8]  [1990] HCA 33 [56].

[9] Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 131 ALR 657, 681; Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 [36].

[10]  [1991] 1 VR 63, 76.

[11]  The Act, s 3(2). 

[12]  The Act, s 3(1).

[13] Cormack v. Queensland Police Service Weapons Licencing Branch [2015] QCATA 115, [28]-[35].

[14]  Ex. 7.

[15] CAT v Queensland Police Services [2017] QCATA 43.

[16]  Ex. 3-6.

[17]  Ex. 9-11.

[18] CAT v Queensland Police Service [2017] QCATA 43 [42].

Close

Editorial Notes

  • Published Case Name:

    Bignell v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Bignell v Queensland Police Service – Weapons Licensing

  • MNC:

    [2019] QCAT 211

  • Court:

    QCAT

  • Judge(s):

    Member McDonnell

  • Date:

    16 Jul 2019

Appeal Status

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

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