Aslan v Queensland Police Service
[2022] QCAT 117
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- Unreported Judgment
- Aslan v Queensland Police Service[2022] QCAT 117
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Aslan v Queensland Police Service[2022] QCAT 117
Aslan v Queensland Police Service[2022] QCAT 117
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Aslan v Queensland Police Service [2022] QCAT 117 |
PARTIES: | Aslan (applicant) v Queensland POLICE SERVICE – Weapons Licensing (respondent) |
APPLICATION NO/S: | GAR410-20 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 29 March 2022 |
HEARING DATE: | 8 March 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Burson |
ORDERS: |
|
CATCHWORDS: | FIREARMS – LICENSING AND REGISTRATION _ APPLICATION FOR A LICENCE – FIT AND PROPER PERSON – where review of decision made to revoke weapons licence – whether the applicant is a fit and proper person to hold a licence Steven John Brown v Queensland Police Service [2021] QCAT 293 Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | Mr J Treanor, Solicitor, Hannay Lawyers |
Respondent: | Sgt D Ayscough, Queensland Police Service |
REASONS FOR DECISION
Background and Facts
- [1]The Applicant at the time of hearing was a 55 year old man who resides on the Gold Coast. The Applicant was previously a tow truck driver, but for the past two and half years has operated a business transporting tiny homes. The Applicant now does this almost exclusively.
- [2]The Applicant has been a member of the Gold Coast Pistol Club for two years and seeks the reinstatement of his weapons licences.
- [3]The Applicant’s weapons licences were revoked by an authorised officer under the Weapons Act 1990 (Qld) by way of notice dated 9 September 2020. The grounds included that the Applicant was not a fit and proper person to retain a licence[1] and that it was not in the public interest for the Applicant to hold a weapons licence with regard to all the information available to the Authorised Officer that the Applicant retain a weapons licence.
- [4]The Applicant has criminal history from 1992 until his latest Public Nuisance offence in 2019 with a conviction for that offence in 2020.
- [5]The Applicant seeks to have the Tribunal set aside the decision of the QPS revoking his weapons licences.
Merits Review
- [6]The Applicant has sought a review of the decision in the Tribunal. The decision of the Tribunal is by way of merits review.[2]
- [7]
- [8]The Tribunal’s powers to conduct proceedings are found in section 28 of the Queensland Civil and Administrative Act 2009 (Qld).
Queensland Police Service Position
- [9]The Respondent provided material paginated 1 to 53 outlining the documents for the Tribunal to consider in the review of the decision to revoke the weapons licences held by the Applicant.
- [10]This included the Applicant’s criminal history. The Applicant’s criminal history is outlined in pages 39 to 47 of the material from the Respondent.
- [11]The Respondent’s criminal history includes serious offending in the years between 1991 and 2009, these included offences of violence towards people.
- [12]The Respondent also has a lengthy traffic history that has been included in the material. This traffic history is not considered relevant for the purposes of this merits review.
- [13]The Respondent was convicted in September 2020 of an offence of public nuisance, the statements, QP9 (court brief), and relevant emails contained within pages 10 to 36 of the Respondent’s material.
- [14]Given the material provided by the Respondent, I am satisfied that the Respondent concluded that the Applicant was not a fit and proper person due to the Applicant’s lengthy criminal history and that it was not in the public interest for the Applicant to hold a weapons licence.
Applicant’s Position
- [15]The Applicant provided written responses, a certificate of completion of an anger management course, a psychologist report under the hand of Ms Julie Fox and five supportive character references.
- [16]In addition, the Applicant’s solicitors were given further time after the hearing to provide a copy of dash cam footage of the public nuisance matter with further written submissions.
- [17]The Applicant testified in the hearing that he had been resident in Queensland for approximately 8 to 10 years and was taken through his previous criminal history.
- [18]The Applicant testified that he undertook the Anger Management Course in 2020.
- [19]The Applicant testified that he saw Ms Fox, clinical psychologist on one occasion.
- [20]Ms Fox was unavailable during the hearing, time was provided during the hearing for the Applicant’s solicitors to attempt to contact Ms Fox. Ms Fox’s report does not reference the Applicant’s criminal history.
- [21]The character referees were not available during the hearing.
Considerations
- [22]Section 10B of the Weapons Act 2009 (Qld) outlines the considerations that must be taken into account when the authorised officer is determining whether a person is a fit and proper person to hold a weapons licence.
- [23]Section 3 of the Weapons Act 2009 (Qld) outlines the principles and objects of the Act. It makes clear, “weapon possession and use are subordinate to the need to ensure public and individual safety.”[4]
- [24]The Applicant in his favour has participated in an anger management course, attended upon a psychologist on one occasion and has positive character references. The Applicant also had ten years without an offence on his criminal history.
- [25]The Applicant has a lengthy criminal history, this includes offences of violence against people, possession of a handgun and ammunition without a licence. It is taken into account the majority of this criminal history occurred between 1992 and 2009.
- [26]The Applicant had one further plea of guilt in 2020 to a public nuisance charge. The facts as agreed by the solicitors representing the Applicant at the sentencing in this matter as identified in pages 32 and 33 of the Respondent are as follows:
“The Defendant has then continued to the driver’s door where the victim [Victim’s name no.1] had begun to exit the vehicle. Victim [Victim’s name no.1]’s body was situated between the vehicle and the door of the vehicle at this time. The Defendant has placed his hands on the driver’s door of the vehicle. At the same time Victim [Victim Name no.2] attempted to intervene and pull the Defendant away from the Driver’s door. It was during this interaction between the Defendant and [Victim Name no.2] that the Victim’s car door began to sing back and forth against Victim [Victim name no.1] causing her pain and discomfort.
After a short time some bystanders approached the Defendant and Victims and the Defendant walked away of his own accord.”
- [27]The public nuisance offence occurred in 2019 and the plea in 2020, it is a recent offence. By the Applicant’s own admission in further submissions the Applicant has exited the vehicle and approached the complainant’s car, this is evident in the dash cam footage.
- [28]The statements from the Victims in the matter outline the concerning behaviour prior to the public nuisance offence. The statements outline that the Applicant followed the Victims’ car for a period of time from a shopping centre car park, after one of the Victim’s has given the Applicant the finger.
- [29]Ms Fox’s report outlines that the Applicant
….does not engage in impulsive behaviour, is able to implement strategies for decision making in stressful situations that incorporate consideration of issues carefully, manages emotion appropriately and is considered to be low risk with regard to harm to self and others.[5]
- [30]As submitted by the Respondent, Ms Fox did not have a copy of the Applicant’s criminal history so was unaware of the plea of guilty to the 2020 public nuisance offence. In addition, Ms Fox was unaware of the Applicant’s criminal history between 1992 and 2009, which also have concerning serious offences. The weight that can be given to Ms Fox’s report in circumstances when the writer was also unavailable for cross examination is less than would otherwise be given to an expert witness.
- [31]The Applicant has undertaken an Anger Management and Conflict Resolution Course, to his credit in August 2020. The Applicant during cross-examination did not express any reason for undertaking the course, other than he was directed to by his solicitor.
- [32]The Applicant has some very complimentary references and I have taken these into account, particularly the reference under the hand of Former Leading Senior Constable of Police Victoria, Tyrone Cerminara dated 7 November 2020 that attests to the Applicant’s character towards his friends and his handling of firearms.
Conclusion
- [33]I have taken into account the case of Steven John Brown v Queensland Police Service.[6]
- [34]I have also considered the decision Australian Broadcasting Tribunal v Bond[7] as to the assessment of a ‘fit and proper person’, particularly “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.”
- [35]I note that in Brown’s case the Applicant also had a lengthy criminal history that was also of concern. I distinguish the case of Brown from this matter in that the Applicant in this matter has a recent public nuisance offence.
- [36]The information provided by the Queensland Police Service, along with the explanation and dashcam footage provide a background to the public nuisance offence that show a risk to public safety. I have taken into account the written submission of the Applicant’s solicitor regarding the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld).
- [37]The paramount objective when considering a weapons licence matter is identified in paragraph 23 of this decision.
- [38]The Tribunal makes a decision with regard to all evidence and facts before it. The Tribunal is not bound by the rules of evidence, but must observe the rules of natural justice.
- [39]The Applicant has a lengthy and serious criminal history with a recent offence.
- [40]The Applicant’s psychological report, positive references and completion of an anger management course are unable to overcome the paramount objectives of weapons licensing, that is that licensing of persons and possession of weapons is subordinate to public safety.
- [41]Further, the factors within section 10B of the Weapons Act 1990 (Qld) are met, particularly section 10B(1)(ca)(ii) that authorising the person to possess a weapon would be contrary to the public interest.
- [42]I am not satisfied that the Applicant is a ‘fit and proper person’ to hold a firearms licence.
- [43]I confirm the revocation of licence by the authorised officer of the Queensland Police Service.
Footnotes
[1]Section 10(2)(e) Weapons Act 1990 (Qld).
[2]Section 20(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[3]Section 142(1)(a) Weapons Act 1990 (Qld).
[4]Section 3(1)(a) Weapons Act 2009 (Qld).
[5]Page 6 Fox Health report dated 1 May 2020.
[6]Brown v Queensland Police Service [2021] QCAT 293.
[7](1990) 170 CLR 321 at paragraph 36 per Toohey and Gaudron.