Stretton v Queensland Police Service
[2018] QCATA 37
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- Unreported Judgment
- Stretton v Queensland Police Service[2018] QCATA 37
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Stretton v Queensland Police Service[2018] QCATA 37
Stretton v Queensland Police Service[2018] QCATA 37
CITATION: | Stretton v Queensland Police Service [2018] QCATA 37 |
PARTIES: | Trevor James Stretton (Applicant) |
| v |
| Queensland Police Service – Weapons Licensing (Respondent) |
APPLICATION NUMBER: | APL258-16 |
MATTER TYPE: | Appeals |
HEARING DATE: | 7 August 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Paratz Member Traves |
DELIVERED ON: | 20 March 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appeal of decision by Tribunal to confirm decision of respondent to revoke applicant’s weapons licences – whether Tribunal made error of law FIRE, EXPLOSIVES AND FIREARMS – LICENCES AND RELATED MATTERS – whether test of “fit and proper person to hold a licence” properly applied in original Tribunal decision – where criminal intelligence used in original Tribunal decision – whether denial of procedural fairness in the process of using criminal intelligence – whether Member misled the applicant as to the weight to be applied to the criminal intelligence Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 146 Weapons Act 1990 (Qld), s 3, s 4(d), s 4(e), s 10B, s 29(1)(d), s 142A Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264 KZT v Weapons Licensing Unit – Queensland Police Service [2016] QCAT 049 |
APPEARANCES: |
|
APPLICANT: | Mr M White of Counsel instructed by Butler McDermott Lawyers |
RESPONDENT: | Mr C Capper, Senior Legal Officer, QPS Legal Unit |
REASONS FOR DECISION
- [1]The Tribunal made an Order on 5 July 2016 after an oral hearing as follows:
The decision of 7 April 2015 of the Queensland Police – Weapons Licensing to revoke Firearms Licence Number 12616391 and Concealable Firearms licence Number 30015359 is confirmed.
- [2]Mr Stretton filed an Application for leave to appeal or appeal against that decision to the Appeal Tribunal on 2 August 2016. The grounds of appeal were as follows:
- The Member erred in law by failing to apply the appropriate legal test in determining whether or not the Applicant is a ‘fit and proper’ person to hold a weapons licence insofar as the learned Member considered the Applicant’s offending conduct in isolation, without giving proper consideration to:
- the character references tendered in support of the Applicant to the extent that they spoke to the Applicant’s standing and reputation in the community in the context of weapons use and safety;
- whether there was any real prospect of the Applicant misusing his weapons in the future so that his licences should be revoked; and
- whether the general community could have confidence that the Applicant’s right to possess firearms did not represent a real risk to public and individual safety
- The Member failed to give consideration to the sentencing remarks of the presiding Judge in the District Court proceedings at which the Applicant’s offences against the Weapons Act 1990 (Qld) (Weapons Act) were dealt with in the first instance.
- The Member failed to give consideration to the conditions upon which Mr Stretton sought to have apply to his weapons licences should they be reinstated, and the consequence these conditions would have on the likelihood of him re-offending.
- The Member failed to afford the Applicant procedural fairness in the Tribunal’s consideration of the evidence tendered by the Queensland Police Service pursuant to section 142A of the Weapons Act.
- [3]Mr Stretton sought the following orders:
- That the decision be set aside and substituted for a decision that:
- The decision of 7 April 2015 of the Queensland Police – Weapons Licensing Branch to revoke Firearms Licence Number 12616391 and Concealable Firearms Licence Number 30015359 is set aside.
- The Applicant’s Firearms Licence Number 12616391 is reinstated for the following purposes:
- Rural/Recreational purposes;
- Occupational purposes;
- Sports/Target Shooting purposes.
- That upon reinstatement, the Applicant’s Firearms Licence Number 12616391 is subject to the condition that the Applicant may only possess the following class A and B firearms:
- One (1) .22 Calibre Rim Fire Rifle;
- One (1) .410 Calibre Shotgun (Coach gun);
- One (1) 12-Gauge Shotgun (Coach gun);
- One (1) Centrefire .243 Rifle;
- One (1) Centrefire .308 Rifle (7mm Remington Magnum Parker Hale);
- One (1) Black Powder Muscat;
- One (1) Clay Target 12-Gauge Shotgun.
- The Applicant’s Firearms Licence Number 30015359 is reinstated for the following purposes:
- Sports/Target Shooting purposes.
- That upon reinstatement, the Applicant’s Firearms Licence Number 30015359 is subject to the condition that the Applicant may only possess the following class H concealable firearms:
- One (1) .44 Calibre Pistol/Revolver.
- That in order to identify the serial numbers of any weapons that have been seized by Police and which were licenced to him at the time of the search warrant, the Applicant is entitled to view those weapons and to identify each weapon by its serial number which he would seek to have and which would correspond with each of the weapons listed in the preceding orders.
- [4]The Application for leave to appeal or appeal was heard by oral submissions on 7 August 2017. The matter was fully argued, it being necessary to do so in order to determine whether leave should be granted, and if so, whether the appeal should be allowed or dismissed.
- [5]This is the decision on the Application for leave to appeal or appeal.
- [6]The appeal is made only on questions of law, and not of fact. Therefore, leave to appeal is not required.[1] We proceed then to determine the appeal. In determining the appeal the Appeal 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 to the tribunal for reconsideration; or make any other order it considers appropriate.[2] We note at the outset that a decision does not involve an error of law unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different.[3] An appeal on a question of law is not a rehearing. Unless the determination of the question of law is capable of determining the matter as a whole in the applicant’s favour, the proceeding must be sent back to the Tribunal for reconsideration.[4]
Submissions of Mr Stretton
Ground 1 “fit and proper” test
- [7]Mr Stretton submits that a court or tribunal should look beyond the individual’s offending conduct to also consider the individual’s character (as an indication of likely future conduct) and reputation (as an indication of public perception as to likely future conduct).[5]
- [8]He submits that “the Applicant’s offending conduct alone informed the Member’s ultimate decision to confirm the revocation of the Applicant’s weapons licences.”[6]
- [9]He submits that “many of the character references tendered in support of the Applicant, and in particular those of Mr Cunningham, Mr Cooke and Mr Breene, speak not only to the character of the Applicant in a general sense, but also to his character in the specific context of weapon use and safety”[7] and that the Member failed to consider those statements to demonstrate the Applicant’s character and reputation such that the community can have confidence that the Applicant will not reoffend, and the Member erred in her application of the appropriate legal test.
- [10]Mr Stretton submits that there is no discussion anywhere in the Reasons regarding his likely future conduct in any sense, and this constitutes a clear error on the part of the Member by failing to apply the appropriate legal test in the determination of whether Mr Stretton is a “fit and proper person” to hold a weapons licence.[8]
Ground 2 – Sentencing remarks
- [11]
Ground 3 – Conditions on licence
- [12]Mr Stretton submits that his “offending conduct centred around the possession and storage of a large number of firearms, which was accepted had been accumulated by the Applicant and his family across the space of approximately 50 years”[11] and that the unique circumstances of the offending and conditions on a licence meant that the community could have confidence that the likelihood of him reoffending would be very low.
- [13]He submits that by failing to consider reinstating Mr Stretton’s licence subject to the proposed conditions as a limiting factor to the likelihood of his re-offending, the learned Member erred in applying the appropriate legal test.[12]
Ground Four
- [14]Mr Stretton refers to the admission of evidence in his absence, pursuant to s 142A of the Weapons Act. He notes that the Member heard evidence from Mr O'Toole in closed proceedings, and then upon re-opening the hearing advised that:[13]
- The Acting Inspector had ‘not got very far’ in his examination of Mr O'Toole;
- Mr O'Toole’s evidence would be of ‘limited value’ to the tribunal;
- The learned Member was inclined to think the weight of Mr O'Toole’s evidence was relatively low, and it could not be that it would not feature greatly in the reasons one way or another;
- The Applicant should not be concerned that the whole hearing would turn on the evidence he had not heard, because it would not.
- [15]He submits that, despite these reassurances, Mr O'Toole’s evidence “clearly factored heavily in the Tribunal’s decision, such as to cause the Member to find the Applicant’s evidence regarding his dealings with Mr O'Toole to have been untruthful.”[14]
- [16]Mr Stretton submits that he was denied procedural fairness in two ways by the handling of the evidence of Mr O'Toole.
- [17]The first is that he submits that “after hearing Mr O'Toole’s evidence in closed court, the Member obviously did question the Applicant’s credibility.”[15] He submits that to afford him procedural fairness:
…Mr O'Toole should have been examined regarding the confidential methodology employed by police to obtain particular information first, and then the hearing could have been re-opened to allow the applicant to hear Mr O'Toole’s subsequent evidence as to his conversations with the Applicant.[16]
- [18]He submits that he was not given the opportunity to properly respond to those parts of Mr O'Toole’s evidence which did not contain criminal intelligence, or at least the allegations raised by Mr O'Toole’s evidence.[17]
- [19]The second is as to the Member’s comments as to the weight to be placed on Mr O'Toole’s evidence. He submits that if the Member had stated:
…that Mr O'Toole’s evidence had caused her to find Mr Stretton to be untruthful, or that there was at least a real possibility of this, the Applicant would have sought an adjournment of the matter in order to properly consider the implications of this finding in the context of section 142A of the Weapons Act.[18]
- [20]Mr Stretton submits that he was denied procedural fairness by being misled as to the weight to be attributed to Mr O'Toole’s evidence.[19]
Submissions of the QPS
Grounds 1 - 3
- [21]The Queensland Police Service (‘QPS’) submits as to Grounds 1 to 3 that a review of the reasons ‘clearly demonstrates’ that the Tribunal: [20]
- Correctly identified the objects and principles prescribed in s 3 of the Weapons Act;
- Identified the appropriate legal tests of fit and proper person and public interest;
- Identified that the concept of “fit and proper” must be considered in the context of the activities Mr Stretton will be engaged in and is a value judgment;
- Noted that Mr Stretton’s offending was not an isolated incident but rather demonstrated offending over many years;
- Noted that Mr Stretton was lax with adherence to the requirements for safe storage of firearms; failed to surrender the unregistered firearms during amnesties and buybacks; and only identified the unregistered firearms on his property when specifically asked by police. It submits that each of these matters go to the likelihood of misusing firearms and to the likelihood of compliance with the Weapons Act;
- Noted the sentencing remarks. It submits that factors which may have weight in determining an appropriate sentence may have different weight in review proceedings of this nature where the primary issue is the suitability of a person to continue to hold a firearms licence;
- Noted the positive references provided as to Mr Stretton’s standing and reputation in the community, and submits that the references appear to have been accepted and considered in Mr Stretton’s favour;
- Recognised Mr Stretton’s belief that the possession and use of his firearms was a necessity for his professional life. It submits that the grant of a licence is subordinate to the need to ensure public and individual safety.
- [22]The QPS submits the submission of Mr Stretton that “the unique circumstance which gave rise to the possession of the sheer volume of weapons …rendered the offence virtually impossible to be repeated,” “fails to recognise that it is the risk of any further improper conduct the Tribunal is considering, not a repeat of the same offence”.[21]
Ground 4
- [23]The QPS submits that the Tribunal was satisfied that the criteria of s 142A of the Weapons Act were satisfied in the proceedings, and that:
…as the information was criminal intelligence the effect of section 142A is to override common law or specific statutory rights which would otherwise entitle a person to receive information about themselves held by the Respondent.[22]
- [24]The QPS submits as to reliance upon evidence from O'Toole by the Tribunal that:
The Tribunal made observations at paragraph [61] about the Appellant’s truthfulness as it concerned his interactions with Mr O'Toole, however does not refer to Mr O'Toole’s evidence in this regard. The appellant was clearly subject to cross examination about his interactions with Mr O'Toole (which is conceded at paragraph [56] of the Appellants submissions) and the findings of the Tribunal that the Appellant was untruthful may be attributable to his answers to those questions. As noted by the Appellant, any reliance upon Mr O'Toole’s evidence to form this view is speculation and inferential at best.[23]
- [25]The QPS submits that Mr O'Toole could not have been recalled to give further evidence if his evidence went beyond the information disclosed to Mr Stretton, as that process itself would have offended the protections intended to be afforded by the provisions of s 142A.[24]
Discussion
- [26]Mr Stretton was first issued with a firearms licence (number 12616391) on 28 June 1991. This licence authorised Mr Stretton to have possession and use registered category A and B weapons for the purpose of Recreational and Sporting Club use. Mr Stretton was also issued with a Concealable Firearms licence (number 30023471) on 7 March 1992 for the purpose of an occupational requirement for primary production with registered category H weapons. Both licences were revoked by Acting Senior Sergeant CC Bradford, Weapons Licensing, Queensland Police on 7 April 2015.
- [27]Prior to the revocation of Mr Stretton’s licences, Mr Stretton had a personal gun collection of approximately 38 guns which were registered. Mr Stretton also had a large number of guns (approximately 60) he had inherited from his father and grandfather. The inherited guns were moved from his family’s property in the Gulf country down to a property outside Kilcoy in 1998.
- [28]The inherited guns were stored in a large pallet box that used to belong to his father, in shipping containers and in two sealed 44 gallon drums which were buried under the hay shed. Mr Stretton dug up the guns in the drums in 2013, on his evidence, because he was hoping to surrender them at the designated firearms amnesty. However, Mr Stretton was unable to surrender the guns with his local gun dealer because that dealer was only authorised to take category A or B guns. Mr Stretton then surrendered 10 firearms for registration to his licence at the amnesty in 2013. The remainder of the guns were left in the drums which were covered with hay and left in the corner of the shed.
- [29]On 2 December 2013, members of the Queensland Police attended Mr Stretton’s property to execute a search warrant. The search located a large cache of firearms including handguns, several category D assault rifles, shortened shotguns, silencers and also an Owen machine gun. Police located around 100 firearms or major components thereof about the property. In a cupboard in a spare bedroom police located a Heckler and Koch model 770 .308 rifle. Mr Stretton was ultimately charged with four offences. On 16 February 2015, Mr Stretton pleaded guilty to one count of failing to keep 10 weapons or more in a secure storage; two counts of failing to ensure that a firearm was unloaded and one count of possessing a magazine for a category R weapon. Mr Stretton was fined $4,000 and no conviction was recorded. A charge relating to the supply of firearms was discontinued.
- [30]The Member, in making her review decision, found that Mr Stretton’s familiarity with guns had “lead him to be very lax with his adherence to the rules in Queensland for the ownership and storage of weapons.”[25] She found that the storage of the weapons did not comply with the Regulations.
- [31]The Member found that Mr Stretton had the opportunity to surrender the unlicensed weapons at three amnesties, but did not do so.
- [32]The Member confirmed the decision of Queensland Police that the licences issued to Mr Stretton should be revoked, and summed up her findings as follows:
[68] Having the advantage of observing Mr Stretton, I see a respected community man and generally law abiding person, who has a knowledge and love of guns, who has used them all his life but who became careless, cavalier and acted foolishly in his approach to the weapons and their storage, mainly through familiarity.
[69] I found Mr Stretton’s credit as a witness lacking in some areas and the sheer numbers of weapons and laxity as to storage and his responsibilities for the unlicensed guns, to be factors sufficient for me not be comfortably satisfied that he should hold weapon’s licences going forward.
[70] On balance, whilst I accept that Mr Stretton is otherwise an upstanding member of the community, I cannot be satisfied that Mr Stretton is a fit and proper person for the purposes of holding a weapons licence under the relevant legislation.[26]
Ground One
- [33]The applicant submits that the Member viewed Mr Stretton’s offending conduct in isolation.
- [34]In deciding, for a revocation, whether a person is, or is no longer a fit and proper person to hold a licence, the Tribunal must consider, among other things, the public interest. There are no prescribed factors to be taken into account in considering whether it is in the public interest to revoke a licence. The discretion should therefore be exercised in a way that promotes the principles and objects of the Weapons Act.
- [35]The object of the Weapons Act is to prevent the misuse of weapons. The principles underlying the Act are that weapon use and possession is subordinate to safety and that safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
- [36]The Member referred to these principles and to Australian Broadcasting Tribunal v Bond[27] where the High Court held that the expression “fit and proper person” takes its meaning from its context.[28] The Member also observed that the question of whether a person is fit and proper involves a value judgment.[29] In describing the process of undertaking that value judgement, Mason CJ in Bond stated:
The question whether a person is fit and proper is one of value judgment. 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.
- [37]While the Member did, arguably, place considerable weight on the nature of the offending conduct, she was entitled to do so. The possession offence was the most serious possession offence there is under the Act, carrying a maximum penalty of 13 years.[30] In any event, the conduct leading to the offences and the fact of the offences are directly relevant, in our view, to the issue of whether Mr Stretton is no longer a fit and proper person to hold a licence.[31] The conduct leading to the offences in this case was directly related to the licensee’s attitude towards the exercise of responsible control over firearms. A licensee who is a fit and proper person in the context of the Weapons Act must have an appreciation of their 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 to not to be, a fit and proper person.[32]
- [38]The applicant submits that the Member was in error in not giving proper consideration to the character references tendered in support of the applicant or to whether there was any real prospect that he would misuse his weapons in the future. The Member specifically refers to the references from “many senior people in the community” which she says “show Mr Stretton as having been actively involved in the business, social and political life of his community for many years”.[33] The Member also acknowledges that the references were written with knowledge of the police charges.
- [39]After referring to the need to make a decision on review which “is a matter of balance”[34], the Member refers to the fact that Mr Stretton is “clearly an upright member of his community, respected by many influential people and very remorseful for his actions and carelessness in the handling and storage of his firearms.”[35] It can be inferred, in our view, that the Member has in fact taken the character references into account and weighed them in the balance.
- [40]The character references provided on behalf of Mr Stretton do speak to his standing and reputation in the community. The test, however, is not as to whether a person is “fit and proper” in a general sense, but specifically as to their suitability to hold a weapons licence.
- [41]The Member drew this distinction clearly, and assessed Mr Stretton’s suitability as to holding a weapons licence based upon his poor compliance with weapons licencing provisions, evidenced by his unsatisfactory storage of both licenced and unlicensed weapons, and his failure to take the opportunity to surrender unlicensed weapons at amnesties. The Member did not err in our view in not giving the references more weight. There is no error of law in a tribunal failing to place “adequate weight” upon a relevant consideration.[36]
- [42]It has been held by the High Court in Gronow v Gronow,[37] that a conclusion that a judge has given excessive weight to some factors does not alone provide basis for an appellate court to substitute its discretion for the judge’s.
- [43]It is also, in our view, apparent that the Member, in view of the sheer number of weapons and Mr Stretton’s laxity to storage and his responsibilities, generally had turned her mind to the manner in which, in the future, he might deal with the weapons and had formed the view that he should not have a licence “moving forward”.
- [44]The Member outlined Mr Stretton’s past history of failure to comply with weapons licensing. It was open to the Member to find that whilst it is highly unlikely that Mr Stretton would ever again amass such an enormous number of weapons, that she was not, by reason of his previous demonstrated attitude, reasonably satisfied that he would not in the future represent a real risk to public and individual safety.
- [45]The Member did not err in law in assessing whether Mr Stretton was fit and proper to hold a weapons licence.
Ground Two
- [46]The remarks of the sentencing judge in relation to the offences were directed at penalty for those offences, and assessed Mr Stretton’s conduct in a historical context. Those remarks may assist the Tribunal in assessing Mr Stretton’s past conduct, but are in a different context to the assessment of the suitability of a person to thereafter continue to hold a weapons licence. His Honour refers to the “very serious matters” and to the seriousness of the offending and points out that it would be open to him to impose a term of imprisonment. He was, however, persuaded that this was an exceptional case, for the reasons that Mr Stretton has no previous convictions, that he is of otherwise good character, that he raised his seven children on his own after his wife left him, that the risk to the public was minimal, the fact that he had inherited the bulk of the firearms from his father and grandfather, that some of the firearms were to go to Victoria Barracks and that there was “absolutely no commercial aspect to this case”. The judge also took into account the potential effect on Mr Stretton’s livelihood if a conviction was recorded and he was to lose his pilot’s licence as a result.
- [47]The purposes of sentencing for offences committed under the Weapons Act, and the decision whether to revoke a licence on the basis a person is no longer a fit and proper person to hold a licence, are very different things: one affects the liberty of a person, the other his or her property rights. Judge Noud was considering whether to impose a custodial sentence. The Tribunal was merely determining whether the privilege of having a firearm licence should be revoked. It is also relevant that the material on which Judge Noud based his decision was different to the material before the Tribunal.
- [48]We would add that the Member was not, by the Act, bound to take the sentencing judges’ observations into account and, that being so, there would be no error of law in failing to do so.
- [49]We are therefore of the view that there was no error of law.
Ground Three
- [50]Where the Tribunal considers that a person is fit and proper to hold a weapons license, it is open to then further consider whether such licence should be bound by certain conditions.
- [51]However, the initial threshold issue is whether a person satisfies the “fit and proper” test, before conditions can be considered.
- [52]The Member found that Mr Stretton did not satisfy the “fit and proper” test, and therefore the issue of conditions did not arise. In determining whether Mr Stretton is “fit and proper” it is not necessary to consider whether he would be “fit and proper” if conditions were imposed.[38] In Australian Broadcasting Tribunal v Bond[39] the High Court held in relation to whether conditions should have been considered before rejecting a broadcasting licence:
It was for the tribunal to decide whether it would consider the imposition of conditions before proceeding to a determination of the fitness and propriety issue. As a matter of logic and common sense there is much to be said in favour of the course taken by the tribunal, that is, deciding, first, the fitness and propriety issue and then, in the light of that decision, deciding whether the public interest called for the imposition of conditions, suspension, revocation or some other action. A determination of what would be appropriate and sufficient conditions could not sensibly be made in the circumstances of this case until a finding was made as to the fitness and propriety of the licensees.[40]
- [53]No error of law appears on this ground.
Ground Four
- [54]Section 142A, the section which provides for the protection from disclosure of criminal intelligence, was inserted by the Weapons (Handguns and Trafficking) Amendment Act 2003 (Qld).
- [55]The Explanatory Notes to the Bill state that the proposed amendments were to give effect to the objectives of the Council of Australian Governments (COAG) agreement, related Australasian Police Ministers Council (APMC) resolutions and to the terms of the National Firearms Trafficking Policy Agreement. The impetus for the amendments was a shooting incident by a licensed handgun owner at Monash University on 21 October 2002.
- [56]The proposals developed were designed to tighten handgun control. Part of the approach included the implementation of broader licence revocation powers, including suspending, revoking or refusing a licence on the basis of criminal intelligence and negligent storage. Criminal intelligence was also to be protected from disclosure in certain circumstances. It was said of the proposed provision:
The provision provides sufficient authority for the court not to disclose the content of any criminal intelligence when deciding an appeal or reviewing a decision to which this section applies. The term ‘criminal intelligence’ is defined for the section. The protections provided under the section only apply to specific types of information, and not all information that was used for a decision under s 10B or 10C of the Act.[41]
- [57]The limitation on information being available to a person who appeals a decision by the Commissioner to refuse or revoke a licence on the basis of criminal intelligence was considered necessary to protect the community:
The COAG Agreement provides for allowing the Commissioner to refuse or revoke a licence on the basis of criminal intelligence or other relevant information. It is considered that these amendments are necessary to ensure the QPS has sufficient licensing powers to protect the community from persons who, based on criminal intelligence, have the potential to risk to public safety, or where the issuing of a licence to that person would be contrary to the public interest. These amendments are consistent with the purpose of the Act, which is to limit the availability of firearms to fit and proper persons who have a genuine reason to possess a firearm.
A person will have the right to appeal the decision. However, only the judicial officer considering the appeal will be provided with the reasons for the decision. This limitation is necessary. The proposed authority would be unusable if the Queensland Police Service was forced to reveal sensitive operational information as part of an appeal process.[42]
- [58]Section 142A provides:
142A Confidentiality of criminal intelligence
- This section applies to—
- a review, under the QCAT Act, of a relevant decision; or
- a review, under the Judicial Review Act 1991, of a relevant decision; or
- an appeal, under the QCAT Act, in relation to a relevant decision.
- The court or tribunal deciding the appeal or reviewing the decision—
- must ensure that it does not, in the reasons for its decision or otherwise, disclose the content of any criminal intelligence on which the decision is based; and
- in order to prevent the disclosure of the criminal intelligence must receive evidence and hear argument in the absence of the public, the appellant or applicant for review and the appellant’s or applicant’s lawyer or representative; and
- may, as it considers appropriate to protect the confidentiality of criminal intelligence, take evidence consisting of criminal intelligence by way of affidavit of a police officer of at least the rank of superintendent.
(2A) If the court or tribunal considers information categorised as criminal intelligence by the commissioner has been incorrectly categorised as criminal intelligence, the commissioner may withdraw the information from consideration by the court or tribunal.
(2B) Information that is withdrawn by the commissioner under subsection (2A) must not be—
- disclosed to any person; or
- taken into consideration by the court or tribunal.
(2C) The Public Records Act 2002 does not apply to activities of, or records made or kept by, the court or tribunal to the extent that Act would otherwise enable criminal intelligence to be disclosed.
- In this section –
"criminal intelligence" means criminal intelligence or other information of the kind mentioned in section 10B(1)(ca) or 10C(1) that could, if disclosed, reasonably be expected—
- to prejudice the investigation of a contravention or possible contravention of this Act; or
- to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of this Act, to be ascertained; or
- to endanger a person’s life or physical safety; or
- to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of this Act; or
- to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
- [59]Section 10B provides, relevantly, that in deciding for the revocation of a licence whether a person is no longer a fit and proper person to hold a licence, an authorised officer must consider, among other things:
…
(ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates -
the person is a risk to public safety, or
that authorising the person to possess a weapon would be contrary to the public interest.
- [60]“Criminal intelligence” is defined in the Dictionary to the Weapons Act, relevantly, as follows:
Criminal intelligence, in relation to a person, means any information about the person’s connection with or involvement in criminal activity…[43]
- [61]“Criminal intelligence” is further defined for the purposes of s 142A. As such, to be criminal intelligence protected from disclosure, the information must not only relate to a person’s involvement with criminal activity but could, if disclosed, reasonably be expected to result in one of the outcomes listed in s 142A(3).
- [62]If the information satisfies the definition of criminal intelligence for the purposes of s 142A, the criminal intelligence on which the decision is based is protected from disclosure prior to the hearing, during the hearing and in the reasons for decision.[44] The same protections apply to an appeal.[45]
- [63]Mr Stretton submits that an error must have been made in the categorisation of the information as criminal intelligence and in how the information was used.
- [64]The respondents at the review hearing relied on the grounds in s 142A(3)(d) and s 142A(3)(e).
- [65]The Member determined she was in receipt of criminal intelligence on the basis that the information, if disclosed, could reasonably be expected to prejudice the investigation of a contravention or possible contravention of the Weapons Act.[46]
- [66]In order to arrive at that conclusion, the Member must have been satisfied that the definition of criminal intelligence[47] and that the criteria in s 10B and s 142A(3) were met. They are important and substantive criteria which should not be met merely by conclusionary statements by the respondents.[48]
- [67]We are satisfied that the information satisfied the necessary criteria in that:
- It concerned a person’s involvement in criminal activity;
- It indicated that a person is either a risk to public safety or that authorising them to possess a weapon would not be in public interest; and
- If disclosed, it could reasonably be expected to prejudice an investigation of a contravention of the Weapons Act; prejudice a lawful method or procedure for dealing with contraventions of the Weapons Act; or prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety.
- [68]Section 142A(3)(d) does not necessarily require that the prejudice be to an investigation of a contravention by the applicant. The statute merely requires that prejudice be caused to an investigation of a contravention of the Weapons Act. It is not concerned by whom.
- [69]We are satisfied that the information did not go beyond that which was protected by s 142A.
- [70]We are also satisfied that the non-disclosure of this information was necessary because otherwise it could have prejudiced an investigation into a contravention of the Weapons Act or the maintenance and enforcement of a lawful method or procedure for protecting public safety.[49]
- [71]We turn then to consider whether there was any error in how the criminal intelligence was used.
- [72]For the time the Member received that information, the hearing was closed. The Reasons and transcript were also redacted so that the information was not disclosed. The Member was required to do all these things in respect of any criminal intelligence upon which the decision was based.[50]
- [73]Mr Stretton submits that there has been a denial of procedural fairness in the manner in which the information was heard and in the representation by the Member at the hearing as to the weight she would give it.
- [74]Provided the information is properly categorised as criminal intelligence within the meaning of s 142A(3), it is protected from disclosure to the extent provided for in s 142A(2). This section denies to an applicant for review or appellant, the rights he or she would normally have to know what the content of the information is, so that he or she can address it.
- [75]It is possible to abrogate the principles of procedural fairness by clear words of necessary intendment. The wording of s 142A, in our view, is clear that it operates to exclude requirements to disclose which would normally be implied by the requirements of procedural fairness.[51]
- [76]The applicant submits that he should have been re-called once the Member heard the information to have any matters put to him which went beyond the scope of the information protected by s 142A.
- [77]The applicant argued, in effect, that the information protected by s 142A is limited to protection, relevantly, of police methodologies and that the information obviously went beyond that if it caused the Member to doubt the truthfulness of some of Mr Stretton’s responses.
- [78]In our view, this argument assumes the content of the information can be divorced from the method used to obtain it. This is not the case. It was not possible to re-call Mr Stretton to put to him some or all of the content of the information without prejudicing an investigation or lawful police methods and procedures for protecting public safety. It should be noted that s 142A(2)(a) prohibits disclosure of criminal intelligence in the reasons for decision “or otherwise” which would, of course, extend to answers to questions made under cross examination.
- [79]There is no error in the Member forming conclusions about the truth of Mr Stretton’s testimony based on the criminal intelligence. While it is true Mr Stretton was denied the opportunity to respond to Mr O'Toole’s evidence, that is the effect of s 142A in this case. The provision abrogates the procedural protections that ordinarily apply to the reception of evidence. The Weapons Act mandates a closed hearing to determine whether information should be categorised as criminal intelligence and closed hearings when the criminal intelligence is subsequently tendered.
- [80]There is no express requirement in the legislation that a person be given notice that an application under s 142A is going to be made. Given that the application itself is to occur in a closed court and without reference to the other parties, it is not clear what purpose such notice would serve.
- [81]The statement by the Member to the effect that Mr O'Toole’s evidence would not be given any considerable weight, was not, in our view misleading, nor does it constitute a denial of procedural fairness.
- [82]The appellant complains that the Tribunal’s statement that Mr O'Toole’s evidence would not be given considerable weight was misleading and, as a consequence, that the appellant was denied procedural fairness. It is said by the appellant that he was not given notice of that part of Mr O'Toole’s evidence that was not criminal intelligence and that, had notice been given, it would have taken steps to refute any adverse inference that might have been drawn against him.
- [83]As we said above, we are satisfied that all of the evidence given by Mr O'Toole in the closed hearing was “criminal intelligence”. That being so, the Tribunal was prohibited from disclosing to the appellant the content of the criminal intelligence, the appellant was not entitled to notice of that evidence and, to the extent he was denied procedural fairness in respect of it, the legislation compelled that to be so.
- [84]While we are satisfied that some reliance was placed by the Member on Mr O'Toole’s evidence, it has not been demonstrated that considerable weight was given to that part of the evidence heard in closed hearings. It is not axiomatic that the finding of credit against the appellant, in some respects, was based on the evidence in closed hearing. For example, it could have been based on the Tribunal’s assessment of the appellant in the witness box.
- [85]Finally, even if the Member placed “considerable weight” on Mr O'Toole’s evidence in closed hearings, she was entitled to do so. That the Tribunal had taken such a view based upon evidence in the closed hearing was not something that the Tribunal could have disclosed in any meaningful way to the appellant without disclosing “criminal intelligence”. It follows that even if the Tribunal gave “considerable weight” to Mr O'Toole’s evidence in closed hearings the Member’s intimation that she would not do so did not have the consequence of denying the appellant procedural fairness.
- [86]The Tribunal on review was required, in effect, to decide whether to revoke Mr Stretton’s licences. In doing so, it is required to consider all material placed before it. In the event the Tribunal has criminal intelligence put before it, it must assess that information (that is, to assess the cogency and veracity of the evidence that is tendered as “criminal intelligence” information) and is not bound to act on it.[52]
- [87]Despite the fact that criminal intelligence information cannot be tested or addressed by the other party, it is within the power of the Tribunal to determine its weight and, in appropriate cases, have regard to the fact that it may be unreliable suspicion or hearsay. It would also be entitled to have regard to the fact that the material has not been tested in any way.
- [88]How much weight the information was given was a matter within the discretion of the Member.
- [89]We would add, that had we found an error of law, we would have set aside the decision and substituted our own decision to revoke Mr Stretton’s licences.[53]
- [90]We would make that decision, without relying on the criminal intelligence, on the basis that Mr Stretton is no longer a fit and proper person to hold a gun licence. We are satisfied that it would not be in the public interest for Mr Stretton to hold a licence given his conduct over a long period of time in relation to, in particular, compliance with the licensing and registration laws that apply to weapons. His transgressions were not minor incidents or the result of an accident, but applied to the storage and possession of scores of firearms including firearms in highly restrictive categories such as military weapons, magazines and silencers over a considerable period of time.
- [91]Our conclusion is one consistent with the principles underlying the Weapons Act which make it clear that weapon possession and use are subordinate to public and individual safety.
- [92]The appeal was in respect of alleged errors of law. Leave to appeal was therefore unnecessary. An error of law has not been demonstrated.
- [93]Accordingly, the appeal should be dismissed.
Conclusion
- [94]No error of law is shown by the Member in interpreting or applying the “fit and proper” test as to suitability to hold a weapons licence; in failing to take proper consideration of character references, sentencing comments, or conditions on a licence; or in failing to afford procedural fairness.
- [95]The appeal is dismissed.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142.
[2] Ibid, s 146.
[3] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 353.
[4]Ericson v Queensland Building and Construction Commission [2014] QCA 297.
[5] Applicant’s Outline of Argument filed on 11 October 2016, [20].
[6] Ibid, [21(b)].
[7] Ibid, [26].
[8] Ibid, [35], [36].
[9] Ibid, [37].
[10] Ibid, [41].
[11] Ibid, [44].
[12] Ibid, [46].
[13] Ibid, [48(f)].
[14] Ibid, [49].
[15] Ibid, [59].
[16] Ibid, [61].
[17] Ibid, [64].
[18] Ibid, [66].
[19] Ibid, [68].
[20] Ibid, [11].
[21] Ibid, [11].
[22] Ibid, [13].
[23] Ibid, [14].
[24] Ibid, [15].
[25] Reasons, [51].
[26] Reasons, [68]-[69].
[27] (1990) 170 CLR 321.
[28] Ibid, 380.
[29] Reasons, [43].
[30] Weapons Act, s 50A.
[31] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380; CAT v Queensland Police Service, Weapons Licensing Branch [2015] QCAT 264.
[32]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 349 (Mason CJ).
[33] Reasons, [37]-[38].
[34] Reasons, [57].
[35] Reasons, [58].
[36] Minitti v Commissioner of Police [2010] WASCA 198, [20] citing Real Estate and Business Supervisory Board v Carey [2010] WASCA 109.
[37] (1979) 144 CLR 513.
[38]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[39] Ibid.
[40] Ibid, 351.
[41] Weapons (Handguns and Trafficking) Amendment Bill 2003 (Qld), s 29.
[42] Ibid, s 5, s 6.
[43] Weapons Act, Schedule 2.
[44] Ibid, s 142A(2).
[45] Ibid, s 142A(1)(c).
[46] Reasons, [32].
[47] Weapons Act, Schedule 2.
[48] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38, [75].
[49] Weapons Act, s 142A(3)(e).
[50] Ibid, s 142A(2).
[51] Vella v Minister for Immigration and Border Protection [2015] FCAFC 53, [83] in relation to the effect of similar provisions (s 503A) in the Migration Act 1958 (Cth).
[52]Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38.
[53] QCAT Act, s 146(b).