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Adams v Queensland Police Service - Weapons Licensing QCAT 47
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Adams v Queensland Police Service - Weapons Licensing
 QCAT 47
STEPHEN JAMES ADAMS
QUEENSLAND POLICE SERVICE - WEAPONS LICENSING
General administrative review matters
5 March 2019
30 January 2019
The Decision made by the respondent on 14 February 2018 is confirmed.
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS –where the applicant’s application for a weapons licence was refused – whether the applicant is a fit and proper person to hold a licence – where the applicant cohabited with a person who is disqualified from holding a weapons licence – where psychiatric reports supported the mental fitness of the applicant to hold a weapons licence – where false and misleading statements made in the application
Weapons Act 1990 (Qld), s 10(2)(e), s 10B(1)(c)
Australian Broadcasting Tribunal v Bond  HCA 33; (1990) 170 CLR 321
Dabek v Chief Constable of Devon and Cornwall (1991) 155 JP 55
APPEARANCES & REPRESENTATION:
Inspector Andrew Smith and Senior Constable Yvette Burgess
REASONS FOR DECISION
- Mr Adams lived in New South Wales before moving to Queensland. He has been in Queensland approximately 11 years. He had held a weapons licence in New South Wales and then held one in Queensland until 9 January 2017. For five years in Sydney, he was also licensed to carry a handgun as an armoured truck operator.
- He was two days late in applying to renew his weapons licence, due 9 January 2017, which meant he had to apply afresh for a new licence. He did that on 27 January 2017, but his application was refused on 14 February 2018. He has applied to the Tribunal to review the decision refusing him a new weapons licence.
Not fit and proper
- In the information notice attached to the notice of rejection he was informed he was not considered a fit and proper person to hold a licence as required by s 10(2)(e) of the Weapons Act 1990 (Qld) (‘the Act’), given the following stated factors:
- (a)That he cohabits with a person who is disqualified from obtaining a firearms licence;
- (b)That he has suffered from psychiatric or emotional problems and was required to obtain a clearance from a psychiatrist as part of a weapons licence application process and had not done so;
- (c)That he failed to disclose to another psychiatrist, who was also assessing his mental state and the appropriateness of him holding a weapons licence, that he had once been conveyed to an authorised mental health facility and he told the psychiatrist that he had not had thoughts of harm either to himself or others, which was wrong.
- At the hearing it was also submitted that in making his fresh application he had made false or misleading statements in a number of material particulars.
The psychiatric evidence
- It is appropriate to deal first with the assertion that Mr Adams suffered from psychiatric or emotional problems; had been required to obtain a clearance from a psychiatrist as part of a weapons licence application process; and had not done so because he had been obliged but failed to attend further counselling.
- According to the police, at approximately 9:40pm on 16 November 2015 police at Rockhampton received a telephone call from a witness who reported a domestic violence incident involving her neighbours, Mr Adams and his partner Mr Inslay.
- Police attended at 10:30pm at the address of the witness who said she had heard Mr Adams and his partner arguing and they were both extremely intoxicated. Mr Adams arrived at the witness’ home whilst the police were there. They spoke to him and he did appear to be grossly intoxicated, unsteady and had slurred speech.
- The police then spoke to his partner Mr Inslay who told them Mr Adams had come home after a bad day, Mr Adams had been drinking excessively and there had been
an argument. Mr Adams had started to smash glass and was screaming at Mr Inslay. Mr Adams had made threats to kill himself and to find the gun safe keys. Mr Inslay said he had retreated to their house and locked himself inside but Mr Adams had gained entry. Mr Inslay said he was fearful that Mr Adams would hurt himself and there had been a struggle over keys on the stairs. Mr Inslay had taken the keys and hidden them and then had gone to bed and then the police had arrived.
- In result, police took Mr Adams to Rockhampton Watch house and whilst in custody Mr Adams said to the Watch house sergeant that he wished to end his life and that he thought of suicide all of the time. He said when he did it, it would not be an attempt. It was noted by police that Mr Adams was heavily intoxicated at the time.
- He was taken to the mental health unit at Rockhampton Base Hospital. Police returned to his home and seized his firearms.
- Mr Adams said he was subsequently required to attend Rockhampton Magistrates Court where the police sought a domestic violence order against him on behalf of Mr Inslay, as the aggrieved party, and sought his firearms licence be revoked. He says the application was dismissed. He says the Magistrate accepted his version of the events of the night, namely, that his partner had ‘half flipped’ after drinking and locked himself in the house. By the time the police arrived Mr Adams had also become intoxicated. Mr Adams was trying to find his gun cabinet and car keys and fell into an altercation with Mr Inslay over them. Mr Adams said the police accepted what was said by Mr Inslay rather than what was said by him on the night.
- Certainly there is a long history of domestic violence orders against Mr Inslay. On two occasions the aggrieved has been Mr Adams. On other occasions it has been Mr Inslay’s parents. There have been no protection orders issued against Mr Adams.
- After the Magistrates Court appearance the police, in any case, suspended Mr Adams weapons licence. He was required to provide a current medical report issued by a doctor, psychologist or psychiatrist outlining his present suitability to continue to hold a weapons licence. Mr Adams’ general practitioner referred him to consultant psychiatrist, Dr Peter Rofe, who provided a report on 20 May 2016.
- Dr Rofe had for his consideration the notes from the hospital about the incident on the night of 16 November 2015 and the police record of Mr Adams statements to them. Dr Rofe understood the police notes suggested Mr Adams had attempted to gain access to weapons with a view to self-harm.
- Dr Rofe noted Mr Adams was assessed at the Rockhampton Base Hospital and was allowed to go home without any further follow-up with mental health. Dr Rofe was of the opinion that Mr Adams did not have any significant psychiatric impairment or illness. There was some mild social anxiety. Dr Rofe says about the hospital assessment of the incident on 16 November 2016:
When assessed at the Base Hospital, he was allowed to go home and chose no further follow up with Mental Health. Their assessment seems that he was pathologically intoxicated at the time.
- Dr Rofe was of the opinion Mr Adams did not suffer from any significant psychiatric impairment or illness although he had some mild social anxiety. He gave qualified
support for him to possess and use firearms although he thought the alcohol was a concern.
- Dr Rofe referred to Mr Adams as suffering pathological intoxication on the night of 16 November. As I understand it, use of the expression pathological intoxication, or idiosyncratic intoxication, means something much more than simply another way to describe someone who is very drunk. Rather, it means an extreme and unusual or peculiar response in personality, mood, and behavior to alcohol not representative of the person’s usual behaviour, mood or personality when not intoxicated.
- Dr Rofe said the incident of 16 November 2015 was the only transgression and he could not find any definable significant psychiatric disorder and, as such, he felt Mr Adams had the capacity to possess and use firearms.
- Mr Adams suspension of his weapons licence was subsequently lifted on 16 June 2016.
- His weapons licence then fell for renewal on or about 9 January 2017 but Mr Adams didn’t have the funds to pay on the due date and when he did, two days later, he was told he had to apply for a new licence.
- There is nothing to suggest any incident occurred after Dr Rofe’s report of May 2016 to raise fresh concerns about Mr Adams mental health, but on 5 May 2017 Mr Adams was told by police he had to supply another ‘current report’ from a psychiatrist indicating whether he was a fit and proper person to be issued with a weapons licence.
- Mr Adams therefore attended on Dr Vayalirakkathu, another consultant psychiatrist, on 30 May 2017 for the purpose of obtaining a report. Dr Vayalirakkathu found:
Currently her (sic) remains well in his mental health with no residual symptoms of any mental illness, is cognitively intact and is able to make informed decisions, he denied any thoughts of harm to self or others. He does use alcohol in the evenings but he denied any current dependence or harmful use.
In my opinion he has reasonable mental health and capacity to maintain a weapons licence. I have recommended that he continue to engage with mental health service to a psychologist and psychiatrist to maintain his mental health.
- Weapons Licensing submit the recommendation in the report that Mr Adams continue to engage with mental health services of a psychologist and psychiatrist was a requirement. Mr Adams says it was simply a comment of a general nature suggested to him during the course of the consultation and there was no requirement for him to attend for future sessions.
- From my reading of the report the psychiatrist was simply making a recommendation that Mr Adams might benefit if he had further engagement with mental health services. I do not understand the psychiatrist to be qualifying in any way his otherwise clear assessment that Mr Adams had capacity to maintain a weapons licence. Dr Vayalirakkathu concluded that Mr Adams was of good mental health and that he had no residual symptoms of any mental illness.
Failure to inform Dr Vayalirakkathu
- Weapons Licensing further submit Mr Adams failed to disclose to Dr Vayalirakkathu that he had been conveyed to an authorised mental health facility on the evening of 16 November 2015 and misleadingly stated to the psychiatrist that he had not had thoughts of harm, either to himself or others.
- Effectively the submission by police amounts to this. They did not accept the mental health assessment by Dr Rofe. If Dr Vayalirakkathu knew about the events of 16 November 2015, he may have provided a different assessment to Dr Rofe.
- Whilst it appears the events of 16 November 2015 were not mentioned to Dr Vayalirakkathu, it is certainly the case that they were fully revealed to Dr Rofe who, despite that, found Mr Adams to be a fit and proper person to hold a weapons licence.
- Dr Vayalirakkathu’s report assesses Mr Adams state of mind as at the date of the report. Generally in outcome he concurs with the opinion of Dr Rofe.
- Mr Adams says he did not have thoughts of self-harm on the night of 16 November 2015. He was drunk and angry when he spoke to police and he was simply being ‘flippant’. Dr Rofe supports him in that, given his observation based on the hospital records, that on the night of 16 November 2015 Mr Adams suffered pathological intoxication. In other words the statements made to police on 16 November 2015 about self-harm were out of character and did not reflect his usual state of mind.
- Mr Adams said he told Dr Vayalirakkathu that he had no thoughts of harm to himself or others and that that was true and that was his state of mind at the time of the consultation and remains his state of mind.
- I see no reason not to accept Dr Rofe’s professional opinion about the matter. I conclude on balance that Mr Adams is, in so far as his mental health is concerned, a fit and proper person to hold a weapons licence and that conclusion does not change because Mr Adams failed to advise Dr Vayalirakkathu about the incident on 16 November 2015.
Cohabiting with a disqualified person
- Weapons Licensing submit Mr Adams is not a fit and proper person to possess a weapons licence because he cohabits with a person who is disqualified from obtaining a firearms licence and he may be able to access Mr Adams stored weapons.
- An English authority for this proposition is cited, Dabek v Chief Constable of Devon and Cornwall (1991) 155 JP 55. That was an appeal decision from a decision made by Justices of the Peace where a woman, who was the holder of a shotgun certificate, had the certificate revoked because her husband had previous convictions for possessing drugs and had subsequently associated with known drug users.
- Her appeal was dismissed. The appeal court said it was a fair argument that the question of the revocation of a shotgun certificate should be assessed entirely on the holder’s own character. However, that argument was not practicable because the fact that an innocent person possesses a shotgun is no safeguard if somebody who cannot be relied upon is in a position to have access to it.
- But the circumstances there may be distinguished from the matter at hand. In Dabek the weapons and ammunition had not been kept locked before the revocation order was made by the Chief Constable. Here there is no question that Mr Adams’ weapons have always been appropriately kept in a gun safe. The appeal court in Dabek found the factual matrix was weak, describing it as a borderline case, however the appeal court accepted the conclusion of the Chief Constable was within the parameters of discretion available under English law and therefore they would not overturn the decision of the Justices of the Peace.
- Given Inspector Smith, representing Weapons Licensing, accepted that appropriate conditions could be added to any grant of licence specifying storage of weapons at a site other than Mr Adams’ home, I cannot accept that Mr Adams’ simple cohabitation with a disqualified person makes Mr Adams not a fit and proper person to possess a weapons licence.
- Finally Weapons Licensing submits Mr Adams is not a fit and proper person to possess a firearms licence because in making his fresh application for a licence in 2017 he made false or misleading statements.
- By s 10B(1) of the Act:
- (1)In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things—
- (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
- (ii)that authorising the person to possess a weapon would be contrary to the public interest; and
- (d)the public interest.
Subject of a domestic violence order
- At section 6 of the application a number of questions were asked. The first was whether the applicant had, in Queensland or elsewhere, ever been the subject of a domestic violence order regardless of outcome or cessation of time. Mr Adams said no. Weapons Licensing submit that was misleading, deceptive and wrong. He was the aggrieved in respect of a domestic violence application brought by police against his partner.
- Mr Adams says he thought that question applied to offenders not the aggrieved. I agree with him given the way the question is framed.
- The submission made at hearing by Inspector Smith was that police want to know whether an applicant resides with someone disqualified from holding a weapons licence. If the police wish to ask that question they should ask that question. But that is not the question in the application.
- In the application form the reference to ‘subject of’ a domestic violence order must surely, on any reasonable objective interpretation, be understood to ask whether or not the applicant is a person against whom a domestic violence order has been sought or made. It does not, in my view, encompass the far broader issue of whether the applicant has ever been the aggrieved party to a domestic violence application.
- I do not find that Mr Adams was being misleading or deceptive when he stated he was not the subject of a domestic violence order.
- Section 7 of the application form asks the applicant to indicate if the applicant has ever required treatment for, amongst other things, psychiatric or emotional problems. Mr Adams indicated no. Weapons Licensing submit that was a false and misleading statement given his attendance on the psychiatrists for the purpose of obtaining psychiatric reports.
- There is no credit in this submission. The only reason Mr Adams attended on the psychiatrists was to comply with directions by police for the purpose of obtaining mental health clearances. I conclude he was entirely justified in stating that he had never required treatment for psychiatric or emotional problems.
Traffic offence; previously suspended weapons licence
- In section 6 of the application it asks whether the applicant in Queensland or elsewhere had ever been charged with any offence, including any traffic offence, that had resulted in a court attendance. Mr Adams said no.
- Some 2 or 3 years prior to making the application Mr Adams had in fact been fined for driving an unregistered motor vehicle. He said at hearing that that had occurred shortly after label-less registration was introduced. He had driven not realising his vehicle had fallen out of registration. He was required to attend a court hearing and, according to Mr Adams, though the Magistrate wanted to release him without charge, a fine had been mandatory.
- In section 6 it also asked whether the applicant had in Queensland or elsewhere ever had a licence or authority for a weapon cancelled, disqualified, suspended or revoked. Again Mr Adams said no.
- In fact he had had his weapons licence suspended after the incident in November 2015. The suspension was only lifted after he attended on Dr Rofe and obtained the psychiatric report.
- In section 14 of the application Mr Adams certified that the information he had given in the application was true and correct in every detail. Immediately after that, there
was a note warning the deponent that it was an offence to state anything in the document which the person knew to be false or misleading. A maximum penalty of 100 penalty units or 2 years imprisonment was noted for breach. Immediately after that notation appears Mr Adams signature and the date he signed the application.
- In all respects other than his declarations about his traffic history and past suspension of weapons licence, the matters submitted suggesting he is not a fit and proper person to possess a weapons licence are not made out.
- In respect of the declarations about traffic history and past suspension of weapons licence however, I conclude that Mr Adams made intentional false and misleading statements, and as such he is not a fit and proper person to hold a weapons licence.
- At hearing it was put to him that he made false and misleading statements in his application. Mr Adams responded variously:
…(there was) a lot to explain on paper
…they had all this information at their office
…usually on these sorts of forms you start ticking yes you automatically don’t get through
- In respect of the latter proposition he gave an example. He said he had applied for a position at a prison in Rockhampton recently, and had been successful to the extent he was shortlisted for the job and he was then asked whether or not he had any previous offences, and he disclosed, apparently, the driving offence. He said he did not win the position and he put that down to his admission about previous offences.
- I conclude Mr Adams intentionally concealed his traffic offence and the suspension of his weapons licence because he considered he had a better chance of being successful in obtaining the new weapons licence than if he revealed them. I find it was not an accidental omission on his part.
- Toohey and Gaudron JJ said in Australian Broadcasting Tribunal v Bond:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, 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 that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct)
may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
- What is the context within which the expression is used in the Act? By s 3(1) the object of the Act is to prevent the misuse of weapons and by s 4(d) that object is achieved in part by providing strict requirements that must be satisfied for licences authorising possession of firearms.
- By s 10(2)(e) a licence may only be issued to an individual if the person is, amongst other things, a fit and proper person to hold a licence. By s 10B(1)(c), which is set out above, in deciding or considering the issue of a licence and whether a person is a fit and proper person to hold one, one of the things that must specifically be considered is whether the person has stated anything in connection with an application which the person knows is false or misleading in a material particular.
- Significant weight, in my opinion, is to be accorded false or misleading statements in applications for a weapons licence, though the final decision requires an exercise of discretion.
- However given my finding that Mr Adams intentionally made the false and misleading statements about his traffic history and his previous weapons licence suspension, because he saw a disadvantage in disclosing same, I conclude the correct and preferable decision in the circumstances is a finding that he is not a fit and proper person to hold a weapons licence.
- Published Case Name:
Adams v Queensland Police Service - Weapons Licensing
- Shortened Case Name:
Adams v Queensland Police Service - Weapons Licensing
 QCAT 47
05 Mar 2019