Ma v Queensland Police Service – Weapons Licensing
[2024] QCAT 74
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- Unreported Judgment
- Ma v Queensland Police Service – Weapons Licensing[2024] QCAT 74
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Ma v Queensland Police Service – Weapons Licensing[2024] QCAT 74
Ma v Queensland Police Service – Weapons Licensing[2024] QCAT 74
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Ma v Queensland Police Service – Weapons Licensing [2024] QCAT 74 |
PARTIES: | YONGKANG MA (applicant) v QUEENSLAND PolICE SERVICE – WEAPONS LICENSING (respondent) |
APPLICATION NO/S: | GAR071-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 14 February 2024 |
HEARING DATE: | 8 February 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: | Application dismissed. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – PUBLIC INTEREST – allegation of rape – nolle prosequi entered – no evidence from applicant at hearing in response. Weapons Act 1990 (Qld) Queensland Civil and Administrative Act 2009 (Qld) Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 Mercer v Commissioner of Police, NSW Police (No 2) [2007] NSWADT 250 Re Costello and Secretary, Department of Transport (1979) ALD 934; Shi v Migration Agents Registration Authority (2008) 235 CLR 286. |
APPEARANCES & REPRESENTATION: |
|
Applicant: | R Clutterbuck instructed by GSR Lawyers |
Respondent: | Ms Carey |
REASONS FOR DECISION
- [1]By notice dated 9 December 2022, an authorised officer under the (the Act) revoked the applicant’s firearm’s licence because:
- the applicant was not a fit and proper person to hold a licence; and
- it was not in the public interest that the applicant hold a firearm’s licence.
- [2]Mr Ma held category A,B and H licences.
- [3]The authorised officer’s opinion was based on his appearance in the District Court at Warwick on 15 March 2021 when he was committed to trial on one charge of rape, one charge of sexual assault, three charges of sexual assault whilst armed in company and one charge of sexual assault – procure, while armed/in company.
- [4]The charges were never tried as the Director of Public Prosecutions (DPP) entered a nolle prosequi on 25 November 2022.
- [5]The explanation provided by the DPP was that the complainant had returned to China and was unable to return and the DPP was unable to obtain an order for video link evidence.
Background
- [6]The female complainant was a 31 year old Chinese national who had been in Australia for 6 years at the time of the alleged offence. At the time of the incident she was training as a real estate agent. For the purpose of anonymity, I will refer to her as the complainant.
- [7]On Monday 5 October 2020, she and some friends decided to drive to a resort near Warwick to undertake some shooting. They arrived at about 1:30 to 2:00 am, after stopping for meals on the way. In all, the party comprised a group of five. One of the party J was friendly with Mr Ma, who they met on arrival at the resort. All had been drinking including Mr Ma.
- [8]One member L was particularly inebriated and was helped to bed by the complainant and Mr Ma.
- [9]The complainant provided a detailed statement dated 6 October 2020 under the Justices Act 1886 (Qld) of what happened next:
44. The man who owns the range[1] and I then left L’s room.
45. As I walked out of L’s room and walked a short distance the man who owns the range pushed me against the wall. The man used his open hands to top (sic.) of my shoulders and pushed me hard to the wall. My back was against the wall.
46. The man who owns the range then started kissing me on my face. He was kissing me on my left cheek and my lips. I was turning away and pushing him away with my hands. I was telling him to 'Stop it’. He didn’t say anything.
47. The owner of the range seemed a little bit drunk.
48. I pushed him off and started to run away very fast. I ran to a room which 1 thought had been the room we had all been drinking in.
49. When 1 got in to that room I saw that there was a bed in the room and saw that it wasn’t the room with the square table. I turned around to get out but the man who owns the range was behind me in the doorway.
50. The man who owns the range closed the door behind him and he pushed me on my shoulders hard. He pushed me on to the bed. I was lying on my back on the bed.
51. The man who owns the range got on top of me on the bed and was still trying to kiss my face.
52. 1 kept turning my head away and told him to stop.
53. 1 told him that J and my friends were writing for me and that I needed to go. He said that they are already asleep and not to worry about them.
54. The man then pulled my black shirt anal light green bra upwards. This exposed my breast.
55. The man used his leg and his weight to push down on my left leg so I couldn't move.
56. The man started kissing my breast. I was trying to push him away.
57. The man then put his left hand down the front of my black track pants and underpants I was wearing.
58. The man then put his finger inside me. Into my vagina. I could feel his cold hand. It was hurting. The man didn't say anything.
59. 1 grabbed his hand to pull it out from my pants.
60. The man who owns the range then pulled down his pants a little way. He grabbed my hand and made me touch his naked penis. His penis was hard. He grabbed my hand, so it wrapped around his penis.
61. I heard someone knocking on the door and could hear some people outside the door.
62. I tried to lie to get away and said to the man that I could go and talk to my friends and would come back to him. 1 said this because I wanted to escape and was very afraid of the man as he had a gun on his side.
63. The man said, 'Don't worry’.
64. The man kept kissing my face and my body.
65. The man then tried to take off my pants. The man grabbed them from the side and pulled them down. As he did this l was kicking at him.
66. There was then a second knock at the door.
67. I heard someone call my name and I saw the door start to open.
68. I kicked the man away as he started pulling up his pants. I got off the bed and ran out the door.
69. 1 saw my friend B at the floor. I kept running past B at the floor and out in to the open area. 1 ran towards the room that I had been in with the square table and found J.
7(1. I told J what had happened.
71. J told me ‘We can leave now. Just bring your things’.
72. I had not told P and C what had happened, yet they were outside.
73. When J said for us to leave I said I would stay because P and C wanted to go shooting. J told me that we needed to leave and talk to the Police.
- [10]Mr Ma’s WeChat text messages to the complainant after the event contained messages of an apologetic nature.
- [11]Although there were no eyewitnesses to the alleged offences, several witnesses gave statements of their observation soon after. One opened the door after knocking twice and the complainant ran past him quickly exiting the room. He subsequently, observed the complainant to be very upset and dishevelled. Others gave similar evidence of the dishevelled state of the complainant, one commenting upon her swollen and red lips.
- [12]The complaint was made to the police within hours of the alleged offence. Police fully investigated the matter.
Applicants case
- [13]Counsel for Mr Ma submits that the decision of the Respondent is invalid as it involves a jurisdictional error. His reasoning is that the decision maker has not explained the legal and factual basis for the decision or how the decision has been reached. Nor does the decision go into the particular statute and identify with particularity, the relevant provisions upon which the decision-maker relies.
- [14]Counsel referred to the authorised officer’s findings, which for completion I will set out below.
I considered when determining if a person is a fit and proper person to retain a license, in the public interest, an authorised officer has to have regard to all information available and based on that, I am of the opinion you are not a fit and proper person to retain a firearms’ license. I note you appeared at Warwick District Court on 25.11.2022 for charges of sexual assaults whilst armed in company (x 5) and rape and I note the charges received a nolle prosequi. When determining if a person is a fit and proper person to retain a license in the public interest an authorised officer must have regard to all the information available. Taking into consideration the seriousness of the charges, I have determined that it is not in the public interest for you to continue to hold a firearms license. As such your license is now revoked.
- [15]Counsel makes the further submission
With respect, the decision-maker does not identify any aspect of the absence of reasonable standards of human conduct nor particularise the absence of any form of good order that will be allegedly breached by the Applicant. There is no society standard or fear of wellbeing of society's members or who the members are to which reference has been made.
- [16]Those submissions refer to the proceedings in the District Court at Warwick and to an application by the DPP, presumably, to have the complainant give her evidence by video link. The transcript referred to is not in evidence nevertheless I accept counsel’s submissions which were as follows:
- That the complainant would not advise the DPP of her location;
- That the complainant would not provide any information to advise as to whether she could travel or not;
- That the complainant would not communicate with the DPP about providing any information that would assist the Court.
- That the Complainant it was suggested by his Honour, could go to the Australian Embassy to give evidence;
- That there is no impediment to the Complainant leaving China to come to Australia;
- That the Crown needed to consider its position and was given time to do so and subsequently entered a nolle prosequi.
- [17]Counsel finally submitted that no conviction has been recorded against the Mr M. Neither has any proceeding been brought against him nor is he the subject of any further proceeding. Mr Ma has been operational since 16 July 2006 without blemish and the Shooting Club at the resort which operates as a non-profit Club.
The evidence
- [18]Counsel proposed that the matter was to be determined on the papers. He was advised that this was a hearing and that the Tribunal wished to hear from Mr Ma.
- [19]I should interpolate here that Mr Ma has never provided an explanation of the events alleged to have occurred on 6 October 2020. He was represented by a lawyer when arrested and declined to be interviewed, which was his right. He has not provided any explanation in his Application for Review. He has never filed any statement denying any of the allegations alleged against him.
- [20]At the hearing Mr Ma was sworn and gave some peripheral evidence with the assistance of an interpreter. However, counsel sought a short adjournment to advise his client. Following the adjournment, he advised the tribunal that his client did not wish to answer any further questions on the ground that the answers may incriminate him. It was pointed out to Mr Ma that the Tribunal would find it difficult to make a decision, favourable to him, without hearing from him.
- [21]Counsel then submitted that there was no evidence before the Tribunal that indicated that Mr Ma was not a fit and proper person to have his licence reinstated and that there was no public risk in doing so. None of the factors set out in s. 10B of the Act, he submitted, were applicable to him.
The legislation
- [22]By s 142(2) of the Act, a person aggrieved by a decision of an authorised officer may seek to have this Tribunal review a decision.
- [23]The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. The hearing is a fresh hearing on the merits in order to produce the correct and preferable decision.[2] The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision-maker.[3]
- [24]The decision made by the Tribunal is on the basis of the facts before it at the review hearing and on the basis of the law applicable at the date of the hearing.[4]
- [25]The issuing of a weapons licence in Qld is governed by the Act. 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.
- [26]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.
- [27]Relevantly here, s. 10B provides,
(ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates –
(i) The person is a risk to public safety; or
(ii) That authorising the person to possess a weapon would be contrary to the public interest; and
(d) the public interest
- [28]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. Also, the public interest must be considered by having regard to the objects of the Act, in particular public safety.
- [29]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 behaviour on the night in question his level of intoxication and the fact that he was wearing a side arm.
Resolution
- [30]It is not correct to submit that none of the above matters are applicable to Mr Ma. The reference to “other information to which the authorised officer has access” would include the results of the police investigation.
- [31]Mr Clutterbuck of counsel seemed to submit that because the charges were not proceeded with the Tribunal should not consider such information when considering Mr Ma’s suitability to hold a weapons licence. Although, it would be a matter of common sense that such allegations should be considered there is authority that support the Tribunal’s view.
- [32]In Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service[5], the NSW Tribunal considered an application by the applicant to reinstate his weapons licence, for use as a security officer, in circumstances where he had been charged with assault occasioning bodily harm for beating his wife with a garden hose. The charge was fully investigated but did not proceed because his wife refused to give evidence. The Tribunal made the following observations:
41. … Mrs Bazouni’s statement is first hand hearsay evidence of facts of which she has personal knowledge. Mr Bazouni does not contest that Mrs Bazouni made the statement, and he does not suggest any reason why she might have fabricated or elaborated on the facts in that statement. I am unaware of any effort Mr Bazouni made to have her available for cross-examination. There is no material before me on which I can make an inference that her statement should be treated as less than reliable. Mrs Bazouni’s failure to attend court in relation to the criminal proceedings is an agreed fact, but there is no evidence before me which explains that fact, or on which I can make any inference as to the unreliability of Mrs Bazouni’s statement. In my view Mrs Bazouni’s statement is admissible as evidence of the facts set out in it, and is reliable evidence of those facts.
42. On the same day Constable Jamieson witnessed “welts” on the body of Mrs Bazouni. NSW Police photographs were in evidence before me. They show red marks on the skin of a woman’s upper body, and on a person’s buttocks. Constable Jamieson’s evidence is that the photographs are of Mrs Bazouni, taken on the same day that she made her statement.
- [33]A distinguishing fact from the case under review and the above case is that at the Tribunal hearing Mr Bazouni denied the facts giving rise to the complaint. Although he had other firearm charges relating to storage and handling found against him the Tribunal considered the issue of domestic violence to be one of the matters against finding him a fit and proper person.
- [34]The above decision was approved and followed by Judicial Member Leal in Mercer v Commissioner of Police, NSW Police (No 2)[6] the member observed:
A determination on whether it would be in the public interest for Mr Mercer to continue to hold a firearms licence is not, however, contingent on the court result but rather on Mr Mercer’s actions: Bazouni & Ors v Commissioner of Police [2002] NSWADT 100.
- [35]As Mr Ma has put nothing before the Tribunal to rebut the prima facie case of the sexual assault complaints against him I have no alternative but to dismiss his application.
Footnotes
[1] Mr Ma.
[2]Queensland Civil and Administrative Act 2009 (Qld) (QCAT Act) s 19, s 20 and s 24
[3] QCAT Act s. 23
[4] Re Costello and Secretary, Department of Transport (1979) ALD 934; Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
[5] [2002] NSWADT 100
[6] [2007] NSWADT 250