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Yan v Queensland Police Service – Weapons Licensing[2024] QCAT 295

Yan v Queensland Police Service – Weapons Licensing[2024] QCAT 295

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Yan v Queensland Police Service – Weapons Licensing [2024] QCAT 295

PARTIES:

TONY HAO-JIE YAN

(applicant)

v

Queensland Police Service – Weapons Licensing

(respondent)

APPLICATION NO/S:

GAR456-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

22 July 2024

HEARING DATE:

20 June 2024

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

The decision made by the Respondent on 6 October 2022 to revoke the Applicant’s Firearms Licences is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to revoke firearms licence under Weapons Act 1990 (Qld) – where applicant charged with drugs and firearms offences – where no conviction recorded – where alleged incident of domestic violence – where applicant had subsequently taken positive steps including drug counselling and a course of study on firearms ownership, possession and use – whether the applicant is no longer a fit and proper person to hold a firearms licence

Human Rights Act 2019 (Qld), s 3, s 4, s 13, s 24

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 24

Weapons Act 1990 (Qld), s 3, s 10B, s 29, s 142, Schedule 2

BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150

CTA v Queensland Police Service [2018] QCAT 440

Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201

MB [2022] QCAT 185

Powell v Queensland Police Service [2019] QCAT 418

Stretton v Queensland Police Service [2018] QCATA 37

APPEARANCES & REPRESENTATION:

Applicant:

G. Kable of Hartmann & Associates

Respondent:

Senior Sergeant D. Ayscough

REASONS FOR DECISION

Introduction

  1. [1]
    By an Application to review a decision filed on 1 November 2022 (‘the Application’), the Applicant has applied to review a decision of the Respondent made on 6 October 2022 (‘the Decision’) to revoke the Applicant’s Firearms Licence issued on 27 November 2019 and his Concealable Firearms Licence issued on 29 January 2021 (collectively, ‘the Licences’).  The Licences were revoked on the basis that the Respondent considered that the Applicant was no longer a fit and proper person to hold the Licences pursuant to s 29(1)(d) of the Weapons Act 1990 (Qld) (the Weapons Act’). At the hearing of the Application, the Respondent also relied upon on the ground that the Applicant had contravened a condition of the Licences (see s 29(1)(c) of the Weapons Act).[1]
  2. [2]
    The Applicant seeks to have the Decision set aside and the Licences ‘returned’.

The statutory basis for reviewing the Decision

  1. [3]
    I consider that the Decision is a ‘reviewable decision’ pursuant to s 142(1)(e) of the Weapons Act, being a decision revoking a licence under the Weapons Act.
  2. [4]
    The Tribunal has jurisdiction to review the Decision by virtue of s 142(2) of the Weapons Act and s 9(1) and s 9(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’).
  3. [5]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[2] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[3]  The Tribunal must have access to any information that could have been or was considered by the original decisionmaker, plus any other material that becomes available and may be lawfully considered.[4]
  4. [6]
    The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made and there is no presumption that the original decision is correct.[5]

The relevant provisions of the Weapons Act

  1. [7]
    Pursuant to s 29(1) of the Weapons Act, an authorised officer may, by a revocation notice given to a licensee, revoke the licensee’s licence if the authorised officer is satisfied that, relevantly, the licensee has contravened a condition, participation condition or special condition of the licence (s 29(1)(c)) or the authorised officer is satisfied that the licensee is no longer a fit and proper person to hold a licence (s 29(1)(d)).[6]
  2. [8]
    Section 10B of the Weapons Act provides for various things the authorised officer must consider in deciding or considering, for the revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence. That section provides:
  1. (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—
  1. (a)
    the mental and physical fitness of the person; and
  2. (b)
    whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
  3. (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
  4. (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. (2)
    However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period—
  1. (a)
    the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—
  1. (i)
    an offence relating to the misuse of drugs;
  2. (ii)
    an offence involving the use or threatened use of violence;
  3. (iii)
    an offence involving the use, carriage, discharge or possession of a weapon; or
  1. (b)
    a domestic violence order, other than a temporary protection order, has been made against the person.
  1. (3)
    Also, for the issue, renewal, suspension or revocation of a licence, a licensed dealer is not a fit and proper person to hold a licence unless each associate of the person is a fit and proper person to be an associate of a licensed dealer.
  2. (4)
    A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon.
  3. (5)
    In this section—

relevant period means—

  1. (a)
    for the issue or renewal of a licence—the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or
  2. (b)
    for the suspension or revocation of a licence—the 5 year period immediately before the date of the suspension notice under section 28, or a revocation notice under section 29, is given for that suspension or revocation.
  1. [9]
    The principles and object of the Weapons Act are set out in s 3 which provides:
  1. (1)
    The principles underlying this Act are as follows—
  1. (a)
    weapon possession and use are subordinate to the need to ensure public and individual safety;
  2. (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.
  1. (2)
    The object of this Act is to prevent the misuse of weapons.
  1. [10]
    I now turn to a consideration of s 29(1)(d) of the Weapons Act. In doing so I will consider the issue of s 29(1)(c) of the Weapons Act which relates to two of the Charges.

Subsection 29(1)(d) of the Weapons Act

  1. [11]
    As noted above, s 29(1)(d) brings into play s 10B.
  2. [12]
    I will address each of the prescribed matters in s 10B which the Tribunal must consider in relation to the Applicant.

Mental and physical fitness

  1. [13]
    As to the mental and physical fitness of the Applicant,[7] there is no evidence to support a conclusion that the mental or physical fitness of the Applicant is such as would make him not a fit and proper person to hold a firearms licence. 

Whether a domestic violence order has been made (or other considerations apply)

  1. [14]
    There is no evidence of a domestic violence order having been made, a police protection notice issued, or release conditions being imposed against the Applicant.[8]
  2. [15]
    However, there is an issue concerning domestic violence which I consider material to the question of public interest and which is addressed below.

Whether the Applicant has stated anything in or in connection with the Licence Application he knows is false or misleading in a material particular

  1. [16]
    There is no evidence the Applicant has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, that the Applicant knew was false or misleading in a material particular.[9]

Criminal intelligence etc

  1. [17]
    The Respondent has not pointed to any criminal intelligence or other information as contemplated by s 10B(ca).

Public interest

  1. [18]
    Subsection 10B(d) refers to the ‘public interest’.
  2. [19]
    As to the proper approach to this issue, I respectfully adopt the following observations of Member Traves (as Senior Member Traves then was) in Lamble v Queensland Police Service – Weapons Licensing:[10]
  1. [16]
    The matters which must be taken into account in considering whether a person is no longer fit and proper to hold a licence, include the public interest. 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.
  2. [17]
    It is a term of wide import which has been said to embrace matters, among others:

… of standards of human conduct … tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.

  1. [18]
    The term ‘public interest’ in the context of weapons licensing should therefore be applied in the context of the object of the Weapons Act which is to prevent the misuse of weapons. In furtherance of this object, public and individual safety are to take precedence over weapon possession and use. These purposes are achieved, in part, by strict requirements for licensing. Accordingly, when considering the public interest in the context of weapons licensing, individual and public safety are important factors to be taken into account.

(citations omitted)

  1. [20]
    As to whether a person is ‘fit and proper’, the test is not concerned with whether that person is ‘fit and proper’ in a general sense, but specifically with the person’s suitability to hold a weapons licence.[11]
  2. [21]
    A licensee who is a fit and proper person in the context of the Weapons Act must have an appreciation of the person’s responsibilities and must discharge them; conversely, a licensee who lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be adjudged not to be, a fit and proper person.[12]

The Respondent’s case

  1. [22]
    The Respondent points to the following matters which, it submits, demonstrate that the Applicant is not a fit and proper person to hold the Licence having regard to the public interest:
    1. nine drugs and firearms charges brought against the Applicant, seven of which he pleaded guilty to (and the circumstances of those charges);
    2. circumstances involving alleged domestic violence against the Applicant’s previous partner.
  2. [23]
    I will address these matters in turn.

Drugs and firearms charges

  1. [24]
    On 25 June 2021, police officers executed a search warrant at the Applicant’s home address on the Gold Coast.
  2. [25]
    As a result of the search, the Applicant was charged with nine offences. Two of the charges were not ultimately pursued by the police and the Applicant pleaded guilty to seven of the charges on 7 April 2022. On all seven charges, no conviction was recorded and the Applicant was fined $5,000.00.[13] The charges involved firearms and drugs offences.
  3. [26]
    The charges were as follows:
    1. Charge 1: unlawful possession of a weapon, namely a quantity of category R silencer attachments which were category R weapons weapon (in contravention of s 50(1)(c)(i) of the Weapons Act).
    2. Charge 2: unlawful possession of a weapon, namely category R weapon being a home-made Taser which was a category R weapon (in contravention of s 50(1)(c)(i) of the Weapons Act). This charge was not pursued.
    3. Charge 6: failing to keep a weapon (being a Walther PPQ pistol) in secure storage facilities when no person was in physical possession of the weapon (in contravention of s 60(1) of the Weapons Act).
    4. Charge 7: when storing an explosive (namely a quantity of ammunition) failed to take reasonable precautions to minimise the likely effects of an explosive incident failing to keep a weapon (in contravention of s 49 of the Explosives Act 1999).
    5. Charge 9: being a licensee under the Weapons Act, possessing an unregistered firearm (being a Walther P 38 pistol) in secure storage facilities when no person was in physical possession of the weapon (in contravention of s 50A(1) of the Weapons Act).
  4. [27]
    With respect to Charge 1, the Applicant stated that he did not know that the silencers were ‘prohibited’ or that they constituted a firearm. When questioned at the hearing whether he believed that it was lawful to possess silencers, the Applicant appeared to accept that it was not lawful to do so but adopted curious language that possessing the silencers was ‘bad’ or ‘naughty’. In adopting such language and emphasising that he did not know that a silencer was a weapon, I consider that the Applicant did not fully acknowledge the seriousness of the charge.
  5. [28]
    The Applicant’s evidence was that the Taser the subject of Charge 2 and the weapon the subject of Charge 9 (which the Applicant stated was in pieces, not a whole weapon), were the property of some tenants who had vacated a property owned by the Applicant and that he had removed various items in laundry baskets from that property and placed them in his garage at home. With respect to Charge 9, the police Court Brief states the Applicant stated that it was a replica gun and not a real gun.
  6. [29]
    With respect to Charge 6, the pistol was in an unlocked case in a room within the house in which a large safe was situated (which required a PIN code access). The safe housed a number of weapons. However, the pistol was not within the safe. The Court Brief states that the Applicant said that he had forgotten to put the pistol away. At the hearing, the Applicant stated that he had taken the pistol out for cleaning.
  7. [30]
    I am satisfied that the circumstances of Charge 6 also constitute a breach of a condition of the Licenses that all weapons were to remain in secure storage unless otherwise authorised, justified or excused by law. Whilst this falls within the scope of s 29(1)(c) of the Weapons Act, I consider that it is properly to be viewed as part of the circumstances relevant to the question of whether the Applicant is a fit and proper person.
  8. [31]
    The drugs offences were as follows:
    1. Charge 3: unlawfully had possession of a dangerous drug namely gamma hydroxybutyrate (which the Court Brief states is commonly referred to as ‘GBH’). This charge was not pursued.
    2. Charge 4: unlawfully had possession of a dangerous drug namely cannabis.
    3. Charge 5: unlawfully had possession of a dangerous drug namely methamphetamine.
    4. Charge 8: unlawfully had in his possession a thing, namely quantity of glass pipes that had been used in connection with the smoking of a dangerous drug.
  9. [32]
    The Applicant’s written statement included a statement that the drugs the subject of Charges 3 and 4 were not his but were part of the items retrieved from his unit when the tenants vacated.[14]
  10. [33]
    With respect to Charge 3, in oral evidence at the hearing, the Applicant maintained that these drugs were not his. The Court Brief indicates that the Applicant stated that his friends drink it when they come over but that he did not drink it. Whilst there is an inconsistency between this evidence and the Applicant’s written statement, in circumstances where the charge was not pursued, I am prepared to accept that, on either view, the Applicant did not knowingly bring those drugs to his house.
  11. [34]
    With respect to Charge 4, in oral evidence at the hearing, the Applicant denied that these drugs were his. However, the Court Brief states that when the Applicant was asked whether he wished to declare anything prior to the search, he pointed to the dining buffet and stated that there was cannabis there. When questioned by investigators, he admitted to smoking cannabis. This evidence plainly indicates that the Applicant was aware that the drugs were in his possession and that he smoked cannabis, regardless of whether he brought that particular quantity of cannabis to his house.
  12. [35]
    With respect to Charge 5, the Court Brief states that the Applicant admitted to smoking methamphetamine with his friends when they came over to his place. In oral evidence at the hearing, the Applicant admitted that these drugs were his.
  13. [36]
    With respect to Charge 8, the Court Brief states that the Applicant said he did not know it was an offence to be in possession of the utensils. In oral evidence at the hearing, the Applicant admitted that the utensils were his.
  14. [37]
    As submitted by the Respondent, had a conviction been recorded in respect of any of Charges 1, 4, 5, 6 or 9, the Applicant would have been deemed to be not a fit and proper person pursuant to s 10B(2)(a).

Domestic violence

  1. [38]
    The police investigated an incident of alleged domestic violence made by the Applicant’s previous partner alleged to have occurred on 10 February 2016. It was alleged that the Applicant punched his previous partner in the back of the head with a closed fist. The police filed an application for a protection order on 10 February 2016. A hearing to determine whether a protection order should be made did not proceed. In correspondence from the Applicant’s previous partner’s solicitors to the police dated 18 March 2016, it was stated that the previous partner had indefinitely moved to Canada, that she did not fear for her personal safety, and did not believe that a protection order was necessary or desirable to keep her safe. It was also indicated that the previous partner would not support the police application. In this proceeding, the Applicant denied the incident occurred.
  2. [39]
    The police report also referred to an earlier incident between the Applicant and his previous partner which occurred approximately 3 to 4 weeks previously. In short, the report stated the previous partner began yelling, that the Applicant believed that it was directed at his mother, and that he slapped his partner in the face allegedly causing her to fall to the ground. The Applicant admitted at the hearing to having slapped his previous partner, stating that he believed she was directing foul language at his mother. I consider this conduct to demonstrate a lack of self-control on the part of the Applicant.

The Applicant’s case

  1. [40]
    The Applicant has provided evidence of a number of matters which I consider to be positive factors in relation to the issue of whether he is a fit and proper person.
  2. [41]
    First, the Applicant completed a course of study on firearms ownership, possession and use in November 2023. The letter accompanying the certificate provided to the Applicant stated that the Applicant had successfully completed a course in firearms legislation relating to New South Wales and Queensland. The course was designed to improve the general knowledge of firearms laws, and covered a firearm licence holder’s responsibility as to matters including safe storage, transportation, use/carriage/possession of firearms. The letter also noted that the course included an examination of the issues that gave rise to the cancellation of the Applicant’s firearms ‘licence’ and the knowledge and measures necessary to prevent any re-occurrence.
  3. [42]
    Second, the Applicant’s storage of firearms at his property, whilst inadequate in relation to the matters the subject of Charges 6 and 7, otherwise reflected a recognition of the need for safe storage. In this respect, the room inside the house where the firearms were stored required a PIN code to access, as did the firearms safe within the room. The garage also required PIN code access. The Applicant also referred to having the house monitored by an alarm, although I consider this to be a common security feature adopted by many homeowners, regardless of whether they own weapons. The Applicant has subsequently utilised a six-foot container to store his reloading equipment in, which is securely locked away. He has also transformed a double lock-up garage into a dedicated space for storage, work and study, exclusively for all things related to shooting.
  4. [43]
    Third, the Applicant states that he has discontinued contact with certain persons who had an adverse influence on his behaviour prior to the charges, and now has a settled family life with three young children.
  5. [44]
    Fourth, the Applicant has stated that he has ceased taking illicit drugs and has produced evidence of the negative drug test results collected on the following dates: 9 July 2021, 18 August 2021, 12 November 2021, 25 February 2022, 4 November 2022 and 10 February 2023. The Applicant also attended alcohol and drug related counselling.
  6. [45]
    Fifth, the Applicant is a regular volunteer performing community work as a Justice of the Peace witnessing documents.
  7. [46]
    Sixth, the Applicant has produced positive character references from the President of the gun club which he attended, from a friend of his who he met through the gun club, from his current wife, and from his previous wife who he was married to from 1996 to 2006.

Is the Applicant a fit and proper person for the purposes of the s 29?

  1. [47]
    Whilst accepting the positive factors identified above, I consider that the following countervailing factors satisfy me that that the Applicant is no longer a fit and proper person to hold a weapons licence having regard to the public interest:
    1. the nature and the seriousness of the charges, involving both drugs and firearms offences, and a charge under the Explosives Act involving ammunition;
    2. the Applicant’s limited period of weapons licensing and ownership before committing offences under the Weapons Act and an offence under the Explosives Act (with the corollary that there is an absence of a history of responsible weapons ownership);
    3. the Applicant’s evidence in relation to possession of the silencers which demonstrates a failure to fully acknowledge the seriousness of the offence;
    4. the Applicant’s prior history of drug taking;
    5. the admitted act of domestic violence towards his previous partner by slapping her in the face, which I consider indicates a lack of self-control;
    6. the period of time that has passed since the offences occurred, in all of the above circumstances, is not such as to persuade me that the Applicant is presently a fit and proper person to hold a firearms licence.
  2. [48]
    Having regard to all of the matters addressed at paragraphs [24] to [47] above, and consistently with each of the principles underlying, and the object of, the Weapons Act, I am satisfied the correct and preferable decision is that the Licenses should be revoked, and that the Respondent’s decision to revoke the Firearms Licences should be confirmed.

Human Rights Act

  1. [49]
    I consider that in making this Decision, the Human Rights Act 2019 (Qld) (the ‘HRA’) has application.[15]
  2. [50]
    Although no argument was directed at this issue, I have proceeded on the basis that the Application potentially impacts the Applicant’s human rights, including under s 24 of the HRA.  This section provides:
  1. (1)
    All persons have the right to own property alone or in association with others.
  2. (2)
    A person must not be arbitrarily deprived of the person’s property.
  1. [51]
    I find that the Applicant’s human rights have not been limited to an extent and in a manner that is not reasonable and justifiable.[16]  In so finding, I have had regard to:
  1. (a)
    the nature and importance of the purpose of the limitations imposed by the Weapons Act, including:
  1. the principle under the Weapons Act that weapon possession and use are subordinate to the need to ensure public and individual safety;[17]
  2. the principle under the Weapons Act that public and individual safety is improved by, relevantly, imposing strict controls on the possession of weapons;[18]
  3. the object of the Weapons Act to prevent the misuse of weapons;[19]
  1. (b)
    the matters addressed above, including the matters set out at paragraph [48].

Orders

  1. [52]
    For the above reasons, pursuant to s 24(1)(a) of the QCAT Act, the decision made by the Respondent on 6 October 2022 to revoke the Applicant’s Firearms Licences is confirmed.

Footnotes

[1] Whilst s 29(1)(c) provides a discrete ground from s 29(1)(d) for the revocation of a weapons licence, I consider that the factors that are material to the exercise of the discretion under s 29(1)(c) include the factors set out in s 10B of the Weapons Act.

[2] QCAT Act, s 20(1).

[3] QCAT Act, s 20(2).  See also Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34, [7].

[4] CTA v Queensland Police Service [2018] QCAT 440, [11].

[5] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[6] Subsection 29(1)(d) notes that s 10B states matters for consideration.

[7] Section 10B(a).

[8] Section 10B(b).

[9] Section 10B(c).

[10] [2018] QCAT 201, [16]-[18].

[11] Stretton v Queensland Police Service [2018] QCATA 37, [40].

[12] Ibid, [37].

[13] In my view, the charges and the guilty plea may be taken into account on this review, even though a conviction was not recorded: see, e.g., Powell v Queensland Police Service [2019] QCAT 418, [78] and the case cited therein.

[14] Applicant's statement, [12]-[14].

[15] See BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150 at [46]. See also MB [2022] QCAT 185 at [16]-[18].

[16] See s 13 of the HRA.

[17] Subsection 3(1)(a).

[18] Subsection 3(1)(b).

[19] Subsection 3(2); see also s 4.

Close

Editorial Notes

  • Published Case Name:

    Yan v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Yan v Queensland Police Service – Weapons Licensing

  • MNC:

    [2024] QCAT 295

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    22 Jul 2024

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
BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150
2 citations
CTA v Queensland Police Service [2018] QCAT 440
2 citations
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
2 citations
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201
2 citations
MB [2022] QCAT 185
2 citations
Powell v Queensland Police Service [2019] QCAT 418
2 citations
Stretton v Queensland Police Service [2018] QCATA 37
2 citations

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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