Hardy v Queensland Police Service – Weapons Licensing
[2024] QCAT 347
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- Unreported Judgment
- Hardy v Queensland Police Service – Weapons Licensing[2024] QCAT 347
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Hardy v Queensland Police Service – Weapons Licensing[2024] QCAT 347
Hardy v Queensland Police Service – Weapons Licensing[2024] QCAT 347
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hardy v Queensland Police Service – Weapons Licensing [2024] QCAT 347 |
PARTIES: | PAUL ANDREW HARDY (applicant) v queensland police service – weapons liceNsing (respondent) |
APPLICATION NO/S: | GAR375-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 20 August 2024 |
HEARING DATE: | 12 August 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND REGISTRATION – REVOCATION OF LICENCE – where applicant’s weapons licence revoked – where applicant misplaced category H weapon at his residence – where applicant notified police on realising the weapon was missing – where police attended the applicant’s residence – where weapon subsequently found at the applicant’s residence the following morning – where applicant failed to ensure category H weapon was securely stored – where applicant charged with an offence under the Weapons Act 1990 and pleaded guilty – where no conviction recorded and discharged – whether applicant a fit and proper person to hold a weapons licence – whether in the public interest for the applicant to hold a weapons licence. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, and s 24 Weapons Act 1990 (Qld), s 3, s 10B Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56. Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Senior Sergeant Aysclough of Weapons Licensing Branch |
REASONS FOR DECISION
- [1]The applicant lives on rural block of land near Atherton with his partner. He is a retired electrician in his 60’s. He has held a weapons licence since the introduction of licensing. He engages in recreational shooting which includes target shooting with pistols (category H weapon) for which he is licenced. He has a number of rifles as well as the pistols which are kept in secure storage in compliance with the requirements of the Weapons Act 1990. It is not disputed he is a person of good character, and has no history with the Queensland Police Service. This is exemplified by the fact that his weapons licence has been renewed over the years as required under the Act.
Background
- [2]An unfortunate incident arose on 7 December 2022 (a Thursday) when some neighbours called in at his property to inspect a tank stand the applicant was building for them. At the time they called in the applicant just happened to be cleaning his .22 pistol for a club meeting on the following weekend. When they arrived, rather than putting the pistol away in the secure storage, he put the pistol, without ammunition, into his belt in his lower back. There was some discussion about firearms. The neighbours were curious, and were shown the pistol and asked if they could look at the stainless steel rifles he had in the gun safe in his house. There was another main storage facility which was a locked shipping container located on the property some 50 metres from the house. Inside the shipping container was another gun safe fixed to the container.
- [3]He retrieved the stainless steel rifles from the gun safe in the house showed it to the neighbours. During this and, after examining the work on the tank stand they had a couple of beers. The applicant maintains they were low alcohol beers and have no more than .2 percent alcohol. The neighbours left the property about 6:30 pm because it was getting dark. During this time the applicant had the pistol on his person.
- [4]After the neighbours left, he then went to put the stainless steel rifles back in the gun safe inside the house. When doing this, he removed the pistol, and he thinks he may have placed it on a couch near the gun safe. Whilst putting the weapons away, he was distracted by chatting with his partner who was cooking dinner. Then, when he went to put the pistol away in the gun safe he couldn't find it. He conducted a thorough search of where he had been during the afternoon with the neighbours, but it could not be found.
- [5]Not being able to find the pistol, he had a concern that one of the neighbours might have taken it, even though this was unlikely. Because of this concern, and given it was a category H weapon, he contacted local police through the 000 number around 8pm. At approximately 9:00 pm that evening two police officers arrived at his residence to enquire about the missing firearm.
- [6]There is a record of what occurred in the entry into the QPS computer system (QPrime) which starts as follows:
…..during the evening the group had been consuming alcohol, where the victim has removed the Ruger pistol from his gun safe to show the named persons during the night. The victim has then placed the pistol behind his back underneath his beltline, while he continued socialising with the named persons. At some stage the pistol has dropped out from behind his beltline and fallen onto the ground behind where the victim has been seated in the yard at the location. He was aware that the pistol has fallen out from his behind his back believing that he would pick it up later. The offender has picked up the pistol from the ground and departed the location with the firearm
- [7]The record in the computer system is based on an assumption by the applicant as to what might have happened with the pistol rather than the fact of what did occur. He reported to the police his concerns about the missing weapon.
- [8]In statements provided to the tribunal, the applicant denies, he removed the pistol from the gun safe (it was the rifles) and that they were “moderately intoxicated” and had been socialising into the night. He does not recall observing the police officer making notes of the conversation at the time of the conversation only recording serial numbers on weapons when they inspected the storage facility. It would appear that the entry into the computer system was made at 2:41am the following morning, after police had been at the applicants residence.
- [9]The suggestion that the weapon had been left in the yard after it dropped from his belt, has been contradicted by the statement of the applicant where he said:
[The] Officer implied that I had dropped the weapon in the yard and lost it, when my statement at the time confirmed that it had fallen from my belt while seated, but immediately recovered and was not lost. [The] Officer requested I speculate as to what happened and I replied that it may have been picked up by one of my visitors and assumed in her report that it was left on the ground, which is not the case.[1]
- [10]The following morning the applicant continued looking for the weapon and found it behind a couch. It had dropped into a shopping bag. In finding the weapon, the applicant immediately notified the police.
- [11]As to the assertion that the applicant was somewhat intoxicated, his brother Benjamin Hardy attended his house that evening and has provided a written statement saying that “Paul was in no way intoxicated, due to recent surgery and other ailments that prevent such.” The applicant denies being affected by alcohol.
- [12]I am inclined to accept the applicant's version of events in that the visitors arrived late afternoon, and had left before sundown after having had a couple of light beers. He accepts that he should have put the pistol away in the gun safe after the neighbours arrived and also, removing the stainless steel rifles from the guns safe to show the visitors was also inappropriate.
- [13]Subsequently the applicant was charged with an offence under the Weapons Act in the Atherton Magistrates Court, he pleaded guilty to the charge of a breach of section 60 (1) secure storage of weapons. The plea was accepted but no conviction was recorded and he was released absolutely. No penalty was imposed.
- [14]The applicant’s conduct clearly demonstrates a lack of judgement and it was, it seems, unfortunate that the neighbours arrived whilst he was in the process of cleaning his pistol which attracted their curiosity. He is certainly remorseful and realises that he needs to be more cognizant of the conditions of his weapons licence and the obligations to comply strictly with the requirements of the Weapons Act.
- [15]On 5 May 2023, as the result of the circumstances as recorded in the computer generated documents and the statement of the prosecuting officer in the QP9, an authorised officer revoked the applicant’s weapons licence. The grounds for revocation were that he his conduct was such that he was not a fit and proper person to hold a licence as is required by s 10B of the Weapons Act 1990.
The Review Application
- [16]On 6 June 2023 the applicant filed an application to review the decision of the authorised officer. As this is a review of the respondent’s decision to revoke the applicant’s weapons licence, section 20 of the Queensland Civil and Administrative Tribunal Act requires the Tribunal to make the correct and preferable decision by way of a rehearing on the merits.[2] 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”.
- [17]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.[3] 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,
- (d)the public interest
- [18]
- [19]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 are his conduct in respect of the category H weapon, and also the cavalier attitude to displaying his firearms to his neighbours. Although, he was charged with an offence under the Weapons Act, no conviction was recorded and therefore it carries little weight in the overall circumstances.
- Decision
- [20]Apart from the conduct referred to above, as I said the applicant is person of good character who has held a weapons licence for many years. He is acutely aware of his responsibilities as a firearms owner, made more so by this incident. To his credit, although required to do so in any event under the Act, he notified police as soon as he realised that the firearm may have been taken by a third party. He did not try to cover up what occurred and I accept he was truthful to police when informing them of what occurred. As for the differing versions of what occurred that evening as recorded by the police officer and the applicant’s challenge to that, the fundamental issue I have to decide is whether the applicant is a fit and proper person to hold a licence. He has a number of firearms, some of which he has an interest in restoring. These are the .303 calibre, some of which may date back to the early 20th century.
- [21]Although no specific third party references have been produced, I do take into account the statement by Benjamin Hardy which corroborates what the applicant had to say about his health.
- [22]In the charge to which he pleaded guilty, although serious in the sense that weapons storage is critical to public safety, there is no suggestion that any person was at risk of harm because of what occurred that evening. In my opinion this one breach is not sufficient to warrant a finding not the applicant is not a fit and proper person to hold a licence. I should also add that I am confident at this incident has given the applicant a salutary lesson in ensuring his ongoing compliance with his obligations under the Weapons Act.
- [23]Pursuant to s 24 of the Queensland Civil and Administrative Tribunal Act, I propose to set aside the decision of the authorised officer to revoke the applicant’s weapons licence dated 5 May 2024.