IWM v Queensland Police Service Weapons Licensing
[2022] QCAT 224
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- Unreported Judgment
- IWM v Queensland Police Service Weapons Licensing[2022] QCAT 224
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IWM v Queensland Police Service Weapons Licensing[2022] QCAT 224
IWM v Queensland Police Service Weapons Licensing[2022] QCAT 224
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | IWM v Queensland Police Service Weapons Licensing [2022] QCAT 224 |
PARTIES: | IWM (applicant) v Queensland police service – weapons licensing (respondent) |
APPLICATION NO/S: | GAR315-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 8 June 2022 |
HEARING DATE: | 6 June 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS LICENCES AND RELATED MATTERS LICENCES AND REGISTRATION – LICENCE OR PERMIT REVOCATION, CANCELLATION SUSPENSION OR SURRENDER – ADMINISTRATIVE LAW ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL WEAPONS – CRIMINAL INTELLIGENCE – where applicant’s firearms licence revoked – where applicant filed an application to review – where decision-maker filed material in the review proceeding – where decision-maker identified information filed in the review proceeding as ‘criminal intelligence’ – whether information has been correctly categorised as ‘criminal intelligence’ for the purposes of s 142A of the Weapons Act 1990 (Qld) whether the applicant fit and proper person. Queensland Civil and Administrative Tribunal Act 2009 (Qld) Weapons Act 1990 (Qld) |
APPEARANCES & REPRESENTATION: | |
Applicant: | D Neuendorf solicitor |
Respondent: | Sgt D Ayscough |
REASONS FOR DECISION
Introduction
- [1]The Applicant seeks a review of the decision of the Queensland Police Service – Weapons Licensing (“QPS”) made on 16 April 2021 to revoke his firearm licence under the Weapons Act 1990 (Qld) (“the Act”).
- [2]The basis of the revocation was stated in the Information Notice as follows:
- (a)The licensee was not a fit and proper person. (s. 10B of the Act).
- (b)It was not in public interest. (s. 10B(1)(d) of the Act).
- (c)The licensee had contravened a condition of his licence. (s. 29 (1) (c) of the Act.)
- (d)The licensee is no longer a fit and proper person. (s. 29 (1) (c) of the Act.)
- (a)
- [3]The reasons for the decision were stated in the Notice as follows:
I note you were convicted on 04/03/2021 in the Townsville Magistrates Court for the charges 2 x Secure storage weapons – licensee and 1 x Fail to properly store explosives. I note that you received a penalty of no conviction and a fine of $400.
You also received a drug diversion 02/02/2021.
- [4]The circumstances leading up to these events were that police, involved in the Organised Crime Gangs Group – Task Force Maxima, executed a search warrant at the Applicant’s address where there they found two air rifles at the bottom of a walk in rob and a quantity of air rifle pellets on the top of the gun safe in the walk-in wardrobe and on top of the dresser in the main bedroom. Although described in the Police Brief as explosive ammunition I am informed by the Solicitor for the Applicant (not disputed by the QPS) that air rifle pellets (even though they contain no explosive material) fall within the category of explosive ammunition.
Criminal intelligence
- [5]In addition to the charges referred to above the QPS rely upon criminal intelligence under s. 10B for the basis of their finding that the Applicant is not a fit and proper person. The term ‘criminal intelligence’ is defined in s. 142A(3) of the Act for the purpose of that section as meaning:
criminal intelligence or other information the kind mentioned in section 10B(1)(ca) or 10C(1) that could, if disclosed, reasonably be expected -
- (a)to prejudice the investigation of a contravention or possible contravention of this Act; or
- (b)to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of this Act, to be ascertained; or
- (c)to endanger a person’s life or physical safety; or
- (d)to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of this Act; or
- (e)to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
- [6]Schedule 2 defines ‘criminal intelligence’ in relation to a person, as meaning ‘any information about the person’s connection with or involvement in criminal activity’.[1]
- [7]Section 142A, inter alia, requires the Tribunal reviewing a decision to ensure that it does not, in its reasons for decision or otherwise disclose the content of any criminal intelligence on which the decision is based and to prevent disclosure must receive evidence and hear argument in the absence of the public, the applicant or the applicant’s lawyer.
- [8]QPS filed an application for a closed hearing. Directions were made that the QPS file an affidavit annexing the criminal intelligence. It was then directed that the tribunal will determine as a preliminary question whether the information has been correctly or incorrectly categorised as criminal intelligence. The Queensland Police Service – Weapons Licensing filed the material, but it is not annexed to an affidavit. In a direction made on 10 September 2021 the application for a closed hearing was granted.
- [9]It was left to me to determine whether the material was properly categorised as criminal intelligence.
- [10]Even though not annexed to an affidavit, I believe this ‘raw’ material is correctly categorised. I do not intend to give reasons for my decision. It is now necessary for me to determine to what extent it relates to or involves the Applicant and what weight I should give it in determining whether the Applicant is a fit and proper person within the meaning of the Act.
Review Application
- [11]I now turn to consider the merits of the Application.
- [12]The Applicant is 57 years of age, he is divorced and lives with 3 of his 4 adult children. He runs his own business and has for the last 30 years. He currently employs 14 people but has employed up to 30 people in the business. His son has now joined him as a co-director of the business.
- [13]Initially, he said in evidence that he has held a firearm licence for 15 to 20 years. It was pointed out to him that he has been licensed for 13 years. Nothing turns on this.
- [14]Prior to the revocation notice he had 22 or 23 licensed firearms in his possession stored in a secure locker. Many of the firearms he described as collectors’ items inherited from his late father. He held category A and B weapons for sport and target shooting. It was clear he had not done target shooting for some years and had not been sport shooting for much the same time, though I take account that his license was revoked in April 2021.
Fit and proper person
- [15]Section 10B of the Act sets out what matters should be taken into consideration of who is a fit and proper person. The phrase is not otherwise defined. Section 10B provides:
Fit and proper person-licensees
- (1)In deciding or considering, for the issue, renewal, suspension or revocation of a license, whether a person is, or is no longer, a fit and proper person to hold a license, 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 license, or an application for the renewal of a licence, the person knows is false and misleading in a material particular; and licence, the person knows is false and 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.
- [16]The Applicant has no history of mental or physical illness, and he has no domestic violence history. He does have an extensive traffic history for minor infringements. He has no criminal history other than the offence the subject of this application. There is no suggestion he has made false or misleading information in obtaining his licence.
- [17]That leave only the criminal intelligence and the offences which formed the basis of the revocation decision.
The offences
- [18]He says that the air rifles found in the bottom of his walk-in robe were in the process of being repaired and that he was waiting for some parts he had ordered and had forgotten he had left them there. They were inoperable. He disputed that there was explosive ammunition strewn around the main bedroom and says that air rifle pellets were in a bowl on the dresser in the main bedroom. He says that the ammunition comprised air rifle pellets. I accept that. He was also found with cannabis which he told the Magistrate he was feeding to his pigeons. This was not explored further in the hearing
- [19]These offences compared with the range of offences of varying degrees of seriousness for the storage and use or misuse of firearms under the Act must be considered at the minor end of the range.
Criminal Intelligence
- [20]I am restricted in referring to the criminal intelligence, but I can refer to the Applicants own material where he refers to his association with an individual whose family, he had close ties with. He felt obliged to assist this person because of this relationship. I accept it was honourable and with good intent that he assisted this person. This individual became involved with an outlawed motorcycle gang. On becoming aware of this the Applicant says that he dissociated himself from the individual.
- [21]The criminal intelligence has not been tested and is not supported by affidavit evidence or otherwise. It is difficult to give weight to it so far as the Applicant’s involvement is concerned. I note that the warrant executed by the police only revealed contraventions of the Act involving air rifles and their ammunition and not any of the 22 odd rifles or ammunition which were properly stored in gun lockers.
- [22]Other than for the offences for which he was charged the Applicant has not been interviewed or charged for any of the other matters arising from the execution of the search warrant or any matters that founded the basis for the warrant.
- [23]I am reluctant to give much weight to the criminal intelligence which comprise what I have described as ‘raw’ reports and have not been attested to by any member of the Queensland Police Service. There are aspects of the criminal intelligence that, although unsubstantiated, give some concern about the Applicant’s suitability as a fit and proper person to hold a firearm licence. However, on balance I am not prepared to make an adverse finding on the material as presented.
Public Interest
- [24]In deciding whether the Applicant is a fit and proper person to hold firearms licence I have regard to the objects of the Act which include public and individual safety but also that the person can demonstrate a genuine reason for possessing a firearm. In this case the Applicant as a significant number (22 or 23) firearms. He did not volunteer any evidence of his interest in target shooting or in sports shooting. When questioned by the tribunal he was vague as to when he last used his firearms for target or sports shooting. He explained that a number of firearms he keeps as a collector, and some have been passed down from his father.
Resolution
- [25]The Applicant has shown insight and remorse for his offences which his solicitor has described as an excusable contravention and an aberration. He has since his breaches of the Act completed the theory stage of a weapons safety course. On all the material I am not prepared to find that he is not a fit and proper person.
Non-publication decision
- [26]Pursuant to s. 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal has a discretion to de-identity a party, along with the contents of a document, or another person affected by the proceedings. That discretion can be exercised if the Tribunal considers the making of a de-identifying order is necessary for a number of reasons, including to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice.
- [27]Because of the criminal intelligence referred to the Tribunal and the restrictions of s. 142A of the Act I direct that the publication of any document filed or produced to the Tribunal and any evidence given to the Tribunal by any witness to the extent that it could lead to the identity of IWM, or any member of his family or any non-party to the proceedings is prohibited. That does not include these reasons.
- [28]I set aside the decision and direct that the Applicant licence be reinstated.
Footnotes
[1] Weapons Act, Schedule 2.