Willingham v Queensland Police Service – Weapons Licensing
[2024] QCAT 361
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- Unreported Judgment
- Willingham v Queensland Police Service – Weapons Licensing[2024] QCAT 361
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Willingham v Queensland Police Service – Weapons Licensing[2024] QCAT 361
Willingham v Queensland Police Service – Weapons Licensing[2024] QCAT 361
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Willingham v Queensland Police Service – Weapons Licensing [2024] QCAT 361 |
PARTIES: | James peter willingham (applicant) v queensland police service – weapons licensing (respondent) |
APPLICATION NO: | GAR281-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 27 August 2024 |
HEARING DATE: | 13 August 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member Scott-Mackenzie |
ORDERS: | The decision of the respondent made 31 March 2023 to revoke the applicant’s firearm’s licence number 26568020 under the Weapons Act 1990 (Qld) is set aside. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND RELATED MATTERS – REVOCATION OF LICENCE – FIT AND PROPER PERSON – PUBLIC INTEREST – where applicant charged with assault but not convicted – meaning of ‘fit and proper person’ and ‘public interest’ – where applicant is a person of good character – consideration of the way a court should exercise its discretion to revoke a firearms licence – whether there is a real prospect of the applicant misusing his weapons such that his licence should be revoked – whether the applicant is a real risk to public and individual safety – whether applicant is a fit and proper person to hold a weapons licence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Weapons Act 1990 (Qld), s 10, s 10B, s 24, s 142 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors [1995] IRCA 540; (1995) 131 ALR 657 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] 1 VR 63 Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378 Phillips v. Woolcock [2002] QDC 35 Stower v Smart [2007] QDC 4 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr Neuendorf |
Respondent: | Acting Sergeant Bauer |
REASONS FOR DECISION
Application
- [1]The applicant has made application to the Tribunal (application) to review a decision of the respondent to revoke his firearms licence number 26568020 (firearms licence) (revocation decision). The decision is dated 31 March 2023.
Legislative framework
- [2]The principles and object of the Weapons Act 1990 (Qld) and how the object is to be achieved for firearms are found in sections 3 and 4 respectively of the Act. The principles are:
- weapon possession and use are subordinate to the need to ensure public and individual safety; and
- 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.
- [3]The object of the Act is to prevent the misuse of weapons. It is to be achieved for firearms by:
- prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances; and
- establishing an integrated licensing and registration scheme for all firearms; and
- requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and
- providing strict requirements that must be satisfied for:
- licences authorising possession of firearms; and
- the acquisition and sale of firearms; and
- ensuring that firearms are stored and carried in a safe and secure way.
- [4]Limitations on the issue of a licence under the Act are found in section 10. Relevantly, a licence may be issued to an individual only if the person is a fit and proper person to hold a licence.
- [5]The matters an 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, are found in section 10B(1) of the Act. Amongst other things, the authorised officer must consider the public interest.
- [6]A person aggrieved by a decision revoking a licence under the Weapons Act may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) to the Tribunal for a review of the decision.[1] In exercising its review jurisdiction, the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[2] It must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[3]
- [7]The Tribunal may:
- confirm or amend the decision; or
- set aside the decision and substitute its own decision; or
- set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.[4]
Information notice and statement of reasons
- [8]The information notice and statement of reasons contains, in part C, the following explanation for the revocation decision:
- On the 8th day of February 2022, the victim of the assault attended Woodend Ct, Park Ridge to drop off machinery. In order to drop off the machinery, the victim was required to offload the heavy machinery from his truck and trailer to an address on Woodend Ct.
- Whilst the victim was offloading, you have approached him and asked what he was doing with the machinery. He told you that he was dropping off the machinery to his business partner who runs a dry hire business.
- Once the victim finished unloading the equipment, he proceeded to Tradelink Drive, Hillcrest where he has re loaded machinery to drop off to the same incident address. As the victim has returned to Woodend Ct, Park Ridge he was approached by fellow residents who appeared to be intoxicated. The residents approached the victim and started instigating the victim by making comments the machinery was stolen and that he can’t be dropping off the machinery.
- The victim has told the residents that he is allowed to be there and all he is doing is unloading and moving the machinery to the address he was provided by his business partner. This has then turned into a disturbance where multiple verbal arguments occurred between the victim and resident of Woodend Ct, Park Ridge.
- Once the victim finished unloading the machinery, he walked back to his truck while still verbally arguing with residents. As the victim approached his truck, you have approached the victim from behind and punched him in the back of his head with a closed fist. The victim has collapsed to the ground and sustained injuries to his face.
- The victim was treated by the Queensland Ambulance Service later at Browns Plains Police Station.
- On the 9th day of February 2022, Police conducted neighborhood inquires and have located you and provided you with rights and cautions before participating in a field Interview.
- You informed Police you assaulted the victim as you felt that you and your family were in danger, and you were unsure if the victim was walking towards his truck to get a weapon.
- You could not provide Police with any lawful or emergent reason for assaulting the victim.
- Police reviewed CCTV footage of the incident and at no stage, were you provoked by the victim and at no stage did the victim make threats of a weapon or produce a weapon.
- Subsequently, you were issued with a notice to appear before the Beenleigh Magistrate Court on the 9th day of March 2022 in relation to this matter.
- I note you pleaded guilty on the 9th of March 2022 for the charge of Common assault. You were fined $500.00 with no conviction recorded.
- [9]The explanation concludes:
Taking into consideration the seriousness of your offence, I have determined that it is not in the public interest for you to continue to hold a firearms licence.
Response
- [10]In response to the application, the respondent filed the revocation notice and information notice and statement of reasons. It also filed the court brief for the prosecution of the applicant heard and decided by the Magistrates Court of Queensland at Beenleigh on 9 March 2022. The brief repeats the background to the alleged offending in the information notice and statement of reasons.
- [11]The applicant is without a criminal or traffic history, the brief records. Close circuit television (CCTV) footage of the incident, it is said once again, is available.
- [12]The brief instructs the prosecutor to seek no conviction nor further punishment due to genuine remorse.
- [13]The applicant, on one charge of the common assault, was fined $500.00. No conviction was recorded.
Applicant’s statement of evidence
- [14]The applicant, in accordance with directions given by the Tribunal, filed a statement of evidence. His account of the circumstances surrounding the incident giving rise to the charge and revocation decision is somewhat different to that in the information notice and statement of reasons and court brief.
- [15]In his statement, the applicant describes the victim of the assault unloading machinery from a truck blocking his driveway and partially blocking the road. He left and returned after receiving a telephone call.
- [16]The statement continues:
- After receiving the call the driver has then come back to the property. By this stage myself, and my children were playing and several other neighbours were still talking in the street.
- Upon exiting the vehicle the driver has become extremely aggressive and started shouting and pointing in my face and swearing at me for contacting his boss and was being aggressive to the other neighbours. This was in front of the children in the street who were out playing.
- Neither myself or the other residents were intoxicated as is alleged in the QP9.
- The neighbours across the road have then contacted the police due to the driver’s aggressive behaviour. I asked him to leave and to not carry on this behaviour in front of the children. He advised me that he did not care as they was not his kids.
- I then told my children to go inside the house away from him.
- He continued to abuse me and the other residents in the street. The driver then jumped into the excavator and swung the arm of the excavator towards me whilst I was talking to him and then drove towards me at speed. 1 had to run out of the way. He continued to drive towards one of the neighbours who was on a small bike where he jumped off the bike in fear of him hitting him.
- He has then driven no more than 100 metres down the road to drop the machine off and park it out the front of the appropriate house.
- The driver has then walked back down the street still aggressive and shouting at me.
- When he approached me, I thought he was going to hit me l immediately reacted and hit him.
Applicant’s oral evidence
- [17]The applicant gave sworn evidence. He expanded on his statement adding he very much regrets the incident. He has not otherwise been charged with an offence.
- [18]He first obtained a firearms licence in 2016.
- [19]In cross-examination by Acting Sergeant Bauer, who appeared on behalf of the respondent, the applicant described the situation as hostile. The victim entered the excavator and, after starting it, he swung the arm around towards him.
- [20]He struck the victim on the side of the head with a closed fist. He should have walked away, the applicant conceded. It was a poor decision.
- [21]The applicant uses his weapons for recreational shooting, he stated.
- [22]In re-examination by Mr Neuendorf, who appeared on behalf of the applicant, the applicant said he made full admissions to police. He added he is 38 years of age. He holds a blue card (working with children card) and is a volunteer firefighter with the K’gari Rural Fire Brigade on K’gari (formerly Fraser Island).
Consideration
Introduction
- [23]As I have said, the applicant’s account of the circumstances surrounding the incident giving rise to the charge of assault and revocation decision is somewhat different to that in the information notice and statement of reasons and court brief. It is apparent from the material filed neighbours and the applicant were interviewed by the investigating police officers. It is likely the victim was interviewed. CCTV footage of the incident was available to the investigating police officers and the court hearing the prosecution. Unfortunately, without being critical of the respondent, the statements and CCTV footage were not available to the Tribunal at the hearing of the application.
- [24]I accept the applicant’s account.
- [25]It is not suggested the applicant is not a fit and proper person to hold a firearms licence within the meaning of section 10B of the Weapons Act by reason of the considerations in sections 10B(1)(a), (b), (c) or (ca), 10B(2)(a) or (b), or 10B(4). The issue to be decided by the Tribunal is whether the applicant is a fit and proper person to hold a licence considering the public interest by reason of the assault on the victim in the circumstances described. The issue calls into consideration the meaning of the terms ‘fit and proper person’ and ‘public interest’ in section 10B of the Weapons Act.
Fit and proper person
- [26]The term ‘fit and proper person’ is not defined in the Weapons Act. It is a legal standard used to determine if an individual is suitable to hold certain positions of responsibility or authority, particularly in regulated industries or professions, and commonly applied in various contexts, such as in licensing, employment, and professional standards.
- [27]The assessment of whether a person is a fit and proper person to hold a firearms licence is different from, but related to, an assessment of whether a person is of good character. Mason CJ, in Australian Broadcasting Tribunal v Bond[5], a decision of the High Court of Australia, explained the question whether a person is a fit and proper person is one of value judgement. He then continued:
In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
- [28]The term, Toohey and Gaudron JJ held in the same decision, standing alone carries no precise meaning:
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.[6]
(Emphasis added)
- [29]Applying the principles distilled from the decision in Australian Broadcasting Tribunal v Bond, in deciding whether the applicant is a fit and proper person to hold a firearms licence, the question to be addressed is whether public and the applicant’s safety is at risk by the applicant possessing and using weapons.
Public interest
- [30]The term ‘public interest’, like the term ‘fit and proper person’, is not defined in the Weapons Act. The specific meaning and application of ‘public interest’ can vary depending on the context and the legislation or legal principles involved. Generally, it serves as a guiding principle to ensure that actions, decisions, and laws are designed to benefit society as a whole and address broader community needs.
- [31]
The purpose of the reference to ‘public interest’ is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission’s consideration. The effect of the reference is to amplify the ‘scope and purpose’ of the legislation.[8]
- [32]The Full Court of the Supreme Court of Victoria (Kaye, Fullagar and Ormiston JJ), in Director of Public Prosecutions v Smith[9], earlier held:
... The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals ...
- [33]The term public interest is an inherently broad concept giving a decision-maker the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.[10] It allows for issues going beyond the character of a person to be considered, including concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system.[11]
Exercise of discretion
- [34]The way a court should exercise its discretion to revoke a firearms licence was considered by the District Court of Queensland in Phillips v. Woolcock[12]. There, the appellant pleaded guilty to two charges, one of possession of dangerous drugs and one of possession of utensils used in connection with the use of dangerous drugs. Convictions were recorded and a fine was imposed with a default period of imprisonment. His firearms licence was then revoked.
- [35]McGill DCJ (as he then was), at [29], observed:
There was, in my opinion, nothing in the circumstances before the Magistrate which was capable of supporting a conclusion that the appellant was not a fit or proper person to hold a weapons licence. The magistrate’s conclusion to the contrary indicates that he must have applied the wrong test. The object of the Act is to prevent the misuse of weapons: s. 3(2). The discretion given in s. 29 must be exercised with reference to that objective, no other considerations being specified by the legislation. All the Magistrate was concerned with was the mental fitness of the licensee, and he ought to have been considering whether there was some aspect of his mental state which gave rise to some real risk of misuse of weapons by him. A propensity to display violence towards others might well lead to such a conclusion, but merely getting angry occasionally (not accompanied by violent behaviour to others) in my opinion is too remote and does not give rise to a logical concern about the fitness of the licensee because of a propensity to misuse weapons.
- [36]Subsequently, in Stower v Smart[13], a case in which the appellant’s firearms licence was suspended after he was charged with serious assault and committed for trial, Skoien SJDC said the following about the court’s exercise of discretion:
- [22]The fact of the charge of serious assault was the sole ground to which Her Honour referred in her reasons as the triggering event to cause her to apply s 28. But as I said in para [12], a decision based solely on that would not be an exercise of discretion. To begin with, the question to be considered should be the nature of the assault. Here, while Brown was aged 69, Stower was himself 57, well into middle age. Then the nature of the assault must be considered. An assault, after all, can be constituted by something as trivial as blowing in someone’s face or, when within arm’s length, making as if to strike a person. Here the alleged assault was not as trivial as those, but it still fell at the low end of the range. The effect of the assault is relevant. No injury was suffered. The reason for the assault, if known, would be a relevant consideration. Here one can glean from the evidence of Inspector Smart that it arose out of some sort of power struggle within the Historical Society. Such things can become heated and apparently did so here, but did not allegedly provoke Stower to punch, kick, or use any sort of weapon or offensive instrument. What occurred, allegedly, was some pushing and shoving. There is no suggestion that Stower uttered threats of violence, in particular any threat to harm Brown or anyone else and most relevantly any threat to use a firearm. What appears from all of that is that it was the sort of event (if the allegations are true) in which ordinary, generally law abiding people, can find themselves behaving quite out of character, often to their immediate regret and lasting embarrassment. In this case Stower offered an immediate apology to Brown “the reason being that I’ve known the man for so long and also to be able to move on from the incident”. Stower was not cross-examined.
- [23]Then the proper exercise of a discretion would require the learned Magistrate to evaluate the evidence of the character of Stower. It was quite unchallenged that he has had a blameless past, had held and holds responsible positions, is not a violent man, has had an exemplary past so far as his use of firearms is concerned, that he offered an immediate apology to Brown, that there is no suggestion of bad blood between them such as might lead him to wish to harm Brown.
- [24]From considerations such as those the proper exercise of discretion would then lead to the questions: “In those circumstances is there any real prospect of Stower misusing his weapons so that his licence should be suspended? Is his right to possess firearms a real risk to public and individual safety?” While it may be right to say, as Her Honour did, that the public interest had priority, public interest is best served by a proper application of the provisions of the Act.[14]
- [37]In summary, in exercising the discretion given it in the circumstances here, the Tribunal must address the following questions:
- the nature of the assault;
- the effect of the assault;
- the reason for the assault;
- the character of the applicant;
- any other relevant matter; and
- whether, in all the circumstances, the applicant holding a firearms licence is a risk to public and individual safety.
The nature of the assault
- [38]The respondent asserts the applicant punched the victim on the back of his head with a closed fist. The applicant stated in evidence he hit the victim on the side of his head. He does not dispute he did so with a closed fist.
- [39]The nature of the assault was serious, and I so find.
The effect of the assault
- [40]The only evidence of the effect of the assault on the victim is that contained in the information notice and statement of reasons. There, it is asserted the victim was treated by the Queensland Ambulance Service at Browns Plains Police Station.
- [41]The victim fell to the ground and sustained injuries to his face. The nature and extent of the injuries is unclear. Treatment by Queensland Ambulance Service and not at a hospital or by a doctor suggests the effect was not serious.
The reason for the assault
- [42]I have accepted the applicant’s evidence on the circumstances surrounding the assault. The victim returned to move the machinery from in front of the applicant’s home. The applicant’s children were playing in front of his home and neighbours were present.
- [43]On leaving his motor vehicle, the victim behaved in an aggressive and provocative manner abusing the applicant in front of his children for contacting his employer. A neighbour telephoned the police.
- [44]After moving the machinery, the victim again approached the applicant in an aggressive and provocative manner. The applicant states, and I accept, he believed the victim was going to hit him. The applicant reacted and hit the victim.
- [45]The reason does not justify the assault. It is fortunate it did not result in a more severe injury to the victim. As the applicant conceded, he should have walked away.
The character of the applicant
- [46]The applicant is 38 years of age. He and his partner have four children, aged five, six and fourteen years (twin girls).
- [47]He was born in the United Kingdom. After leaving school, he completed an apprenticeship and has been employed as a floor layer since the age of 16 years.
- [48]The applicant immigrated to Australia in 2001. In November 2013 he established a commercial floor laying business. The company now has 12 employees.
- [49]He holds a blue card (working with children card) and a white card (construction induction card).
- [50]He is a volunteer firefighter with the K’gari Rural Fire Brigade on K’gari (formerly Fraser Island).
- [51]Apart from the charge of assault, the applicant is without a criminal or other history, he is mentally and physically fit, a domestic violence order has not been made against him, and he has not been charged with an offence against the Weapons Act.
- [52]The applicant filed three references. The respondent does not dispute the applicant is a person of good character. It did not require the referees to attend the hearing of the proceeding for cross-examination.
- [53]The references speak highly of the applicant.
- [54]Mr D Handley: Mr Handley has known that the applicant for five years. He describes him as a family man with a high degree of respect and integrity.
He is aware of the incident. He believes it to be a “one-off occasion”.
- [55]Mr J Skinner: Mr Skinner is a director of World Commercial Flooring Pty Ltd. The applicant has installed flooring for his company for about eight years.
Mr Skinner describes the applicant as a model worker and family man.
He later describes the applicant as “… a great husband and father, very loving and always puts his family’s best interests first.”
- [56]Mr K Probert: Mr Probert is a project manager employed by Future Floors (Qld) Pty Ltd. He has worked with the applicant for more than six years.
Mr Probert describes the applicant as an honest, hard-working family man.
- [57]I accept the applicant is a person of good character. Equally, I accept he understands the seriousness of his actions, is remorseful for what he did, and the conduct was very much out of character.
Any other relevant matter
- [58]The applicant cooperated with police following the incident. He entered a plea of guilty when charged with assault.
- [59]The applicant, I find, understands the seriousness of his conduct and what might have been consequences. He is genuinely contrite expressing remorse for his conduct.
- [60]The assault, as I have found, occurred in circumstances where the victim was aggressive and provocative. The applicant’s reaction to the situation was out of character.
Whether, in all that the circumstances, the applicant holding a firearms licence is a risk to public and individual safety
- [61]In my opinion, in all the circumstances, there is no real prospect of the applicant misusing his weapons such that his licence should be revoked. He is not a real risk to public and individual safety, and I so find.
- [62]The revocation decision should be set aside.
Decision
- [63]The decision of the Tribunal is that the decision of the respondent made 31 March 2023 to revoke the applicant’s firearm’s licence number 26568020 under the Weapons Act 1990 (Qld) is set aside.
Footnotes
[1]Weapons Act, s 142.
[2]QCAT Act, s 19.
[3]QCAT Act, s 20(2).
[4]QCAT Act, s 24(1).
[5](1990) 170 CLR 321, at [63].
[6]Ibid, at [36].
[7][1995] IRCA 540; (1995) 131 ALR 657.
[8]Ibid, at 681.
[9][1991] 1 VR 63.
[10]See Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25].
[11]See Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16, at [33].
[12][2002] QDC 35.
[13][2007] QDC 4.
[14]See also Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378, per Senior Member O'Callaghan at [24]-[27].