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  4. MKJ v Queensland Police Service – Weapons Licensing - [2023] QCAT 84

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MKJ v Queensland Police Service – Weapons Licensing[2023] QCAT 84

MKJ v Queensland Police Service – Weapons Licensing[2023] QCAT 84

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

MKJ v Queensland Police Service – Weapons Licensing [2023] QCAT 84

PARTIES:

MKJ

(applicant/appellant)

v

Queensland police service – weapons licensing

(respondent)

APPLICATION NO/S:

GAR463-20

MATTER TYPE:

General administrative review

DELIVERED ON:

2 March 2023

HEARING DATE:

22 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

  1. The decision of the respondent is set aside.
  2. The applicant be issued a weapons licence for category A and B weapons for Occupational – Primary Producer on Rural Lands.
  3. Publication of any information that might identify the applicant, the applicant’s former partner and the police officer referred to in these reasons, other than to the parties to this proceeding, is prohibited pursuant s 66 of the Queensland Civil and Administrative Tribunal Act 2009

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND REGISTRATION – REVOCATION OF LICNCE – where applicant applied for a weapons licence for occupational purposes primary-producer – where applicant charged with breaches of domestic violence orders in 2012 – where applicant admitted breaches – where breaches did not involve violence, threats of violence or harm – where applicant failed to include history of mental health treatment in 2010/2011 on the application for a her license – where applicant persistently emailed the investigating police officer – where application for weapons licence rejected – whether applicant a fit and proper person to hold a weapons licence – whether in the public interest for the applicant to hold a weapons license.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66

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

Domestic and Family Violence Protection Act 2012 (Qld), s 159

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79

APPEARANCES & REPRESENTATION:

Applicant:

Mr Quin solicitor of Gilshenan & Luton

Respondent:

Sergeant Baur of Queensland Police Service – Weapons Licencing.

REASONS FOR DECISION

  1. [1]
    The applicant is a mature lady who lives alone on about 43 hectares in the west of Toowoomba. She is all but retired from a long and unblemished teaching career and runs about 30 cattle and a similar number of sheep on the property. The land ranges from open grazing into wooded areas which she is gradually opening up within reason. It is bordered on the foothills of heavily timbered ridge country. Her livestock is subjected to attacks from dingos and/or wild dogs. There is a feral pig problem as well as foxes. Just recently she lost about a dozen sheep to dog attacks. She is proficient in the use of a small calibre firearm and needs one to help control the feral animals on her land.
  2. [2]
    In 2020 she applied to the respondent for weapons licence. It was rejected because the authorised officer of the respondent contends she is not a fit and proper person to hold a weapons licence. Also, it would not be in the public interest to issue her with one. It seems there are two main bases for the rejection. Firstly, between 2010 and 2012 she breached a domestic violence order taken out against her by a former partner. Secondly, she has been harassing the police officer, who was then in charge of the local police station where she lived, with emails complaining about his conduct and lack of response to her complaints about her former partner. The most recent email was in July 2021. Although not a primary reason for rejection, there is a collateral question of the applicant’s mental fitness to hold a licence.
  3. [3]
    Prior to the making of the domestic violence orders, the applicant had held a weapons licence since licensing was introduced in 1996. Under the Weapons Act 1990 (Qld), on the making of the final Protection Order her weapons licence was automatically revoked and she had to surrender her bolt action .22 rifle to another licence holder for safe keeping.
  4. [4]
    Both parties have filed extensive material in the proceeding. There is an affidavit of the applicant setting out her history and the history of the relationship with her former partner and the issuing domestic violence orders. The particulars of the breaches and the convictions in relation thereto. She sets out her need for a weapons licence on the grounds of a genuine occupational need as a primary producer. A comprehensive forensic psychological report has been obtained addressing mental health issues.
  5. [5]
    Sergeant Pat has filed an affidavit dealing with his involvement with the applicant during the period of the domestic dispute between the applicant and her former partner. He expresses views as to whether the applicant is a suitable person to hold a weapons licence based on his experience as a police officer of some 22 years, and his interactions with the applicant.
  6. [6]
    Importantly, there is no real factual contest as to the history in relation to the domestic violence orders that were made, their breaches by the applicant nor does the applicant dispute the fact of the emails to the Sgt Pat.
  7. [7]
    As this is a review of the respondent’s decision to reject the applicant’s application for a weapons licence, Section 20 of the Queensland Civil and Administrative Tribunal Act requires me to make the correct and preferable decision by way of a rehearing on the merits.[1] That is to have regard to the evidence filed by both parties and also the further evidence given at the hearing. It is not the function of the Tribunal to identify error or mistake in the original decision but to look at all of the surrounding circumstances, as has often been said “stand in the shoes of the decision maker, and make another decision afresh”.
  8. [8]
    The issuing of a weapons licence to an individual is governed by the Weapons Act 1990 (Qld). The granting of a licence is not as of right and is subordinate to the need to ensure public safety. This is achieved by the imposition of strict conditions on the possession of weapons, their storage and carriage.[2] Section 10B of the Act provides that an individual must be a fit and proper person to hold a licence. It sets out those matters that can be taken into account, but it is not exhaustive. Relevantly here,
  1. (ca)
    whether there is any criminal intelligence or other information to which the authorised officer has access that indicates –
  1. (i)
    The person is a risk to public safety; or
  2. (ii)
    That authorising the person to possess a weapon would be contrary to the public interest; and
  1. (d)
    the public interest
  1. [9]
    The respondent submits that the term “fit and proper person” must be considered in all the circumstances of the case, and the context in which it is used in the Act.[3] Also the public interest must be considered by having regard to the objects of the Act, in particular public safety.[4]
  2. [10]
    Therefore, the question for determination in this review application is whether, in all the circumstances, the applicant is a fit and proper person to be issued with a weapons licence. The specific matters to be considered is the effect of the breaches of the domestic violence orders, the applicant’s interaction with Sgt Pat, her failure to disclose psychological treatment in 2010 on her application form and whether there are any ongoing mental health issues which need to be considered.

The applicant’s background

  1. [11]
    The applicant is in her early 60s. She grew up in south-western Queensland on her family agricultural property. Her family had been involved in the pastoral industry since the 1950s and she is familiar with all aspects of rural life. She qualified as a high school teacher after leaving school and has spent most of her life as an educator in Queensland and the Northern Territory. She has had responsible administrative positions in schools. Having mainly taught in country schools, she has been on school boards, engaged with the local community, including local authorities and church groups. Presently, she is a member of the local Agricultural Show Society and both as a community member and school teacher engages with the local police without any difficulty. Although she has reduced her availability for teaching to spend more time running her small agricultural enterprise, she is still available for “call out” teaching when needed.
  2. [12]
    The applicant manages her small property herself. She has made improvements to her property by some timber clearing, weed control, improving water supply and refurbishing her residence. She has trouble with feral animals, such as dingos/wild dogs, pigs, rabbits and foxes. She seems proficient in animal husbandry and sells the cattle she grows out to market, as well as the lambs she produces, save for the ones she slaughters for her own consumption. An example of her proficiency is when dogs recently attacked and mortally injured about a dozen of her sheep. Rather than wait for assistance, and because the sheep were suffering, she humanely destroyed them straight away they with a knife. This takes a heavy toll.
  3. [13]
    Other than the domestic violence issues, the applicant has no history with the QPS. She is otherwise a law-abiding citizen and an asset to the community within which she resides. There was no suggestion to the contrary by the respondent.

Protection Orders

  1. [14]
    That then brings me to the domestic violence orders that were made in 2010. She commenced a relationship with Jane (a pseudonym) in 2005 and they co-habited until 2010. The breakdown of their relationship was acrimonious and as a consequence Sgt Pat (a pseudonym) became involved and applied for domestic violence orders against both Jane and the applicant in April 2010. Temporary orders were made against the applicant and Jane. Then in August 2010, further temporary orders were made naming both the applicant and Jane as applicant and respondent. In other words, orders were taken out by each of them against the other.
  2. [15]
    In November 2010 temporary orders were made against the applicant naming Senior Constable Pat (as he then was) as the aggrieved and following that on 23 November 2010 a Protection Order was made naming Jane as the aggrieved with SC Pat as the applicant. The orders were varied in May 2011. Then in October 2011 the applicant, as the aggrieved took out a Protection Order against Jane.
  3. [16]
    Also, during this time there were contested proceedings on foot in the Family Court of Australia to determine whether a de facto relationship existed between the applicant and Jane.  It was held in a judgment handed down on 13 November 2013 that such a relationship existed. This obviously impacted on any property settlement between them, which was finalised in February 2014.
  4. [17]
    However, also during this time the applicant breached the orders made by the Magistrates Court. Although it cannot be said that any breach of a Protection Order is minor, there are degrees of seriousness of the breach having regard to the circumstances of the breach and the relationship. The applicant was prosecuted for the breaches and admitted guilt. The breaches were at the lower end of the scale as can be seen by the particulars of each breach, summarised below:
    1. (a)
      04.10.2010 – leaving a handwritten message and balloons at Jane’s on the mailbox at Jane’s residential address.
    2. (b)
      08.10.2010 – sending a text message to Jane saying “24 inches of rain by spring. Wow. We should be celebrating the end of the drought and our hard times together”
    3. (c)
      07.09.2011 – saying to Jane at the cattle yards at her home address, “you’re not a law unto yourself Jane. How dare you touch Vic’s cattle.”
    4. (d)
      02.04.2012 – after witnessing Jane come off her quad bike and injuring herself, and calling an ambulance, she sent a text message to her some days later and said: “you must tell the truth Jane. You have been in a serious accident and you must tell the truth”.
    5. (e)
      10.08.2012 – the applicant contacted Jane in relation to a horse that was caught in a wire gateway.
  5. [18]
    It is relevant to note that in all of the above communications, there were no threats, use of weapons nor were alcohol or drugs involved. Objectively, they were intermittent and would not necessarily cause fear or anxiety to Jane. That does not mean there is justification for the conduct, clearly there is not, but as Sgt Pat himself conceded at the hearing they are at the lower end of seriousness of breaches.
  6. [19]
    The Protection Order expired in July 2015 and the “relevant period” of 5 years had expired when the applicant applied for her weapons licence. The reason for the license expressed in the application was for Occupational – Primary Producer on Rural Lands. During the consideration of the application some confusion had arisen whereby it proceeded on the basis of the applicant requiring it for “club” purposes. I will return to this but that is clearly not the genuine reason, as there has been a mix up in communication.

Applicant’s complaints about Sergeant Pat

  1. [20]
    During the disputation with Jane the applicant developed a resentment towards Sgt Pat as a result of his involvement in obtaining the orders in the Magistrates Court against her. She contends that he disregarded her complaints about the behaviour of Jane, even the allegation that Jane discharged a firearm at her. From the QPrime records obtained through freedom of information, she particularises those complaints which include being shot at, assaulted and other incidents. She contends her complaints were not properly investigated by Sgt Pat and that in effect, she was the victim in the relationship with Jane.
  2. [21]
    She wrote to his superiors and lodged official complaints with the Ethical Standards Command of the QPS and the Crime and Corruption Commission about his conduct. Investigations were undertaken about her complaints, but the applicant’s major complaints were not substantiated. There was some guidance given to Sgt Pat about his use of inappropriate language and his recommendations to a third party that a house not be rented to the applicant. It is not for me to form any opinion about whether there is any validity to the complaints other that acknowledge the evidence of the applicant about these matters.
  3. [22]
    This then led to a fixation, in the mind of the applicant, that she was being ignored to the benefit of Jane. She then embarked on a series of emails to Sgt Pat personally, complaining about his conduct. The emails span a period from November 2012 to 2021.[5] There is little point in traversing the content of each email, but importantly not one contains any threat to Sgt Pat but reiterates what the applicant perceives to be his incompetence, dereliction of duty, lack of integrity and favouring the situation of Jane as opposed to herself.[6] I was particularly concerned by the email of 22 July 2021 whilst these proceedings were on foot and directly asked her the motivation for this. The applicant said she frustrated by the need to undergo a psychological examination, as directed by the Tribunal and, again, blamed this on Sgt Pat so took out this frustration with another email.

Evidence of Sergeant Pat

  1. [23]
    Sgt Pat has filed an affidavit setting out his experiences with the applicant. He records in detail the circumstances surrounding the obtaining of the orders obtained in the Magistrates Court. He records the complaints received from Jane about the applicant’s breaches of the orders and steps he took in relation to the breaches. He records other complaints from Jane about the applicant’s behaviour, but no other charges were laid against the applicant. He summarises his interactions with the applicant as follows:

During my dealings with the applicant I found her to be indignant and belligerent towards me. When pressed on specifics of complaints the applicant became defensive and argumentative. I recorded all interactions with the applicant. On occasion she would yell, scream and rant at me, accuse me of corruption and tell me I was a disgrace to the police force. I found the applicant's version of events, whilst possibly true in her own mind, were her version of the truth and often self-serving in nature sometimes only partially true, on occasion totally false.

  1. [24]
    He also records the accusation of being a bully and threatening the applicant with a gun which he deals with in his affidavit. He rejects entirely any suggestion of threatening the applicant with a gun conceding his action of placing his hand on his sidearm was an innocent and normal stance for him. He also rejects any suggestion of being influential in attempting to influence the authorised officer about the applicant’s weapons licence application. He did provide a letter with the accompany emails to the authorised officer as background information for consideration during the course of the application process. This was entirely appropriate.
  2. [25]
    Sgt Pat expressed strong views as to the applicant's suitability for a weapons licence having regard to his experience with her during her personal conflict with Jane and of course, the ongoing email stream to which he has been subjected. He expressed concern for other police who might be required to attend her premises for a normal weapons audit which is carried out periodically on those who have weapons licences. He also described the layout of the applicant’s residence which necessitated a visitor having to drive to the rear of her house, which is obscured from the main roadway, to speak with the applicant. Given her attitude to police, he expressed concern that if the applicant was surprised by an unexpected visit by police she may act irrationally.
  3. [26]
    He also queried the applicants need for a weapons licence because she lives on a small property with limited stock and if the need arose way to euthanise an animal a vet was only 30 kilometres away. Furthermore, he is aware of neighbours nearby who would readily assist the applicant if it was necessary to humanely destroy any injured animal.
  4. [27]
    He has contacted Jane to inform her of the applicant's application and she expressed concern to him about her own safety. She has moved to another town some distance away but remains concerned about the applicant.
  5. [28]
    Sgt Pat’s affidavit certainly raises a serious question mark about the applicant’s suitability to hold a weapon’s licence.

Mental health issues

  1. [29]
    As mentioned above the applicant underwent a psychological examination for the provision of a forensic report to assist the Tribunal. A report has been prepared by Lumsden Psychology and is dated 16 September 2021.[7] The author of that report was Johanna Harris, provisional psychologist. A supplementary report was also prepared by way of an affidavit by Margaret Lumsden, psychologist,[8] because Ms Harris was no longer at Lumsden Psychology. Ms Lumsden assisted in the assessment and reviewed the report before it was published to the applicant’s solicitors. She says in her affidavit that:

As a supervisor, I oversaw the assessment of (the applicant) which was completed by Ms Harris. I observed the initial face to face appointment Ms Harris conducted with (the applicant) and guided Ms Harris’ choice of assessment tools. In addition, I reviewed the report (attached in Appendix B – ten (10 pages) Ms Harris compiled in a professional supervision prior to its release.

  1. [30]
    The author acknowledges that the applicant has applied for a weapons licence and the reasons for it. It records the applicant’s personal history prior to the relationship with Jane. It is somewhat unremarkable, involving work as a teacher community activities and regular friendships. The report records the applicants self-report of the breakdown in the relationship with Jane and the involvement of Sgt Pat is much as described here, in summary,. Also how this impacted her psychologically. She also detailed her need for a firearm in operating her small rural enterprise. 
  2. [31]
    A number of objective psychometric tests were administered. These tests demonstrated that her distress was "clinically insignificant”, she was not depressed, mental state was normal, she showed no marked elevation of clinical psychopathology. Her alcohol consumption was in the higher range. She did not exhibit any significant indicia of post-traumatic disorder. The clinical opinion is as follows:

In regard to (the applicant’s) psychological assessment that has taken place over three face-to-face interviews, psychometric testing and numerous telephone conversations, I have no reasons or basis to suggest (the applicant) suffers from any psychopathological symptoms or syndromes. The applicant presents as a fit and healthy 63 year old woman living an independent and self-fulfilling life on her property in regional Queensland. She is a client with a wealth of life experience and knowledge, and shows high levels of insight and emotional intellect when it comes to her personal situation and current circumstances. (The applicant) has openly discussed and disclosed documents and details recounting her previously domestically violent relationship and distressing experiences with her local QPS, and has shown regard and respect throughout the process. In addition, (the applicant) has openly discussed her struggles with the past trauma, and I have made recommendations to (the applicant) (outside the scope of this report) to seek further psychological support if she deemed it necessary to assist in resolving any underlying historical trauma.

It's my belief that (the applicant) manages her anxiety in a measured and effective manner, is well supported by family and friends and has active strategies in place as to avoid her identified triggers. (The applicant) is well connected to a local community, compassionate and altruistic in nature, going above the general requirement of volunteers in community organisations. (the applicant) shows strong sense of family and a caring and nurturing nature, providing care and compassion for elderly neighbours, family members and throughout her teaching career. In my professional psychological opinion, (the applicant) is a mentally sound, intelligent, honest and a courageous woman that displays exemplary community character….. .[9]

Applicant’s current circumstances

  1. [32]
    It is obvious from all the evidence that the period between 2010 and 2013 was a very tumultuous and traumatic time for the applicant. During the breakdown of the relationship with Ms Blackurn the applicant confronted situations that, based on the Lumsden Report, she had not previously had to confront in her life. Coming out of the relationship and after the property settlement she purchased her small property and sought to re-establish some normality to her life and enthused by the prospect of developing it in her retirement years. She has a small herd of cattle and sheep which occupies her time and until recently was actively involved in part time teaching at local schools. She remains on the TRACER[10] roster for call outs when there are staff shortages.
  2. [33]
    Although I accept Sgt Pat’s concerns about the applicant as genuine, he has now moved to take up police duties in another town, so that stressor from the applicant’s perspective, has been removed. In saying that I am not making any finding that Sgt Pat is at fault, it is just a fact that there is no reason for there to be any contact with him in the future.

Fit and proper person

  1. [34]
    The Lumsden Report demonstrates there are no ongoing mental health issues with the applicant. She is content with her current circumstances, engages with her local community, school and is on the local Show Society. She has no difficulty, through her community activities interacting with local police.
  2. [35]
    Importantly, she had held a weapons licence for many years prior to the making of the Protection Order. There is no allegation of any past conduct on her part inconsistent with her obligations of keeping and using a firearm.
  3. [36]
    The QPS rely on the breaches of the Protection Order to assert she is not a fit and proper person. The breaches must be considered in the context of what was going on in the applicant’s life at the time, and the nature of the breaches which I have referred to. It also relies on the fact that the applicant did not disclose her treatment with a psychologist, Mr Henry, in 2010/2011 when she completed the application for a weapons licence.
  4. [37]
    In respect of the question whether she had ever received treatment for “psychiatric or emotional problems” she answered No. In view of the treatment the answer was obviously incorrect, but did it amount to a positive misleading response? When questioned by Sgt Bauer, the applicant readily admitted that given the treatment by Mr Henry the answer was incorrect but as it was nearly 10 years ago, and it was as a result of a relationship breakdown, she did not think it was relevant. The question itself is somewhat ambiguous in the sense it does not refer to any timeframe and also does not define “emotional problems”. Having admitted her mistake, and given the lapse of time, with no follow up treatment this mistake, in the circumstances is not a bar to the provision of a weapons license.
  5. [38]
    Her obsession with Sgt Pat is obviously a concern, but I am confident that with the resolution of this review application that interaction will cease. If it does not and there is cause for Sgt Pat to take action to protect his privacy this may adversely impact the applicant’s suitability to be hold or be issued a weapons licence in the future.

Decision

  1. [39]
    Having regard to the history provided by the applicant, the reasons for her interactions with Sgt Pat, the Lumsdem Report and her reasons for not including the previous psychological treatment on the application form, I have come to the view that the applicant is a fit and proper person to be issued a weapons licence. I do not accept that she would be any threat to police who might visit her premises, even Sgt Pat. No reason has been established to my reasonable satisfaction that the applicant would be a threat to the public. I therefore do not accept it would be in the public interest to refuse to issue her with a weapons licensee in the category applied for. During the hearing I enquired what type of weapon she had. She only has and has always had the one. It is a .22 calibre bolt action single shot rifle. The licence will issue for that type of weapon, the serial number of which will appear on the licence. I realise she can add other category A and B weapons to her license if she satisfies the requirements of a Permit to Acquire.
  2. [40]
    Under s 24 of the QCAT Act the Tribunal can set aside the decision and substitute its own decision. Therefore, I propose to set aside the decision of the authorised officer and substitute that decision with the decision that the applicant be issued with a weapons licence for category A and B weapons for Occupational – Primary Producer on Rural Lands as that is what was applied for in her application.
  3. [41]
    Under s 159 of the Domestic and Family Violence Protection Act 2012 (Qld), publication of any information that is likely to identify a person or witness involved in a proceeding under that Act is prohibited. As one of the main issues in this case involved the making of orders made under that Act I propose to make a non-publication order pursuant to s 66(1)(c) of the QCAT Act.

Footnotes

[1]Queensland Civil Administrative Tribunal Act 2009 (Qld), s 20.

[2] Weapons Act 1990 (Qld), s 3.

[3] Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56.

[4]Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 at [36].

[5]  Emails dated: 01.11.2012, 16.04.2015, 25.05.2015, 09.06.2015, 27.04.2017, 28.01.2019, 22.10.2020 and 22.07.2021.

[6]  My summation of the content of the emails.

[7]  Exhibit 2.

[8]  Exhibit 3

[9]  Exhibit 3 page 9-10.

[10]  Teacher Relief and Contract Employment Register.

Close

Editorial Notes

  • Published Case Name:

    MKJ v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    MKJ v Queensland Police Service – Weapons Licensing

  • MNC:

    [2023] QCAT 84

  • Court:

    QCAT

  • Judge(s):

    Member Richard Oliver

  • Date:

    02 Mar 2023

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
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
1 citation
Jump To
Cite 1 - (1990) 94 ALR 11
Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56
1 citation
Jump To
Cite 1 - (1990) 94 ALR 56
Moye v Queensland Police Service - Weapons Licensing [2017] QCAT 79
2 citations
Jump To
Cite 1 - [2017] QCAT 79
Cite 2 - [2017] QCAT 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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