Humphreys v Queensland Police Service – Weapons Licensing
[2024] QCATA 52
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- Unreported Judgment
- Humphreys v Queensland Police Service – Weapons Licensing[2024] QCATA 52
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Humphreys v Queensland Police Service – Weapons Licensing[2024] QCATA 52
Humphreys v Queensland Police Service – Weapons Licensing[2024] QCATA 52
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Humphreys v Queensland Police Service – Weapons Licensing [2024] QCATA 52 |
PARTIES: | darren bruce humphreys (applicant/appellant) v queensland police service – weapons licensing (respondent) |
APPLICATION NO/S: | APL210-23 |
ORIGINATING APPLICATION NO/S: | GAR220-23 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 10 May 2024 |
HEARING DATE: | 10 May 2024 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Traves |
ORDERS: |
|
CATCHWORDS: | APPEAL – GENERAL ADMINISTRATIVE REVIEW – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF MIXED FACT AND LAW – where applicant’s weapons licence revoked by the respondent – where applicant applied to the tribunal for review and to stay the original decision – where stay refused – where applicant applied for leave to appeal or appeal the decision to refuse the stay – whether leave to appeal should be granted Police Powers and Responsibilities Act 2000 (Qld), s 19, s 22, s 25 Police Powers and Responsibilities Regulation 2012 (Qld), Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22, s 142 Weapons Act 1990 (Qld), s 29, s 30 Weapons Regulation 2016 (Qld), r 93, r 94. Australian Coal and Shale Employees’ Federation v Commonwealth of Australia (1953) 94 CLR 621 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 Heywood v Commissioner of Police [2020] QCA 226. Willmott v Carless [2021] QCATA 132 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
REASONS FOR DECISION
- [1]On 15 February 2023 the Queensland Police Service – Weapons Licensing (QPS) made a decision to revoke the applicant’s firearms licence pursuant to s 29(1)(d) of the Weapons Act 1990 (Qld).
- [2]On 28 February 2023 three police officers attended the applicant’s property and served the revocation notice upon which his licence was revoked. The notice directed the applicant to immediately surrender his licence and every weapon held under the licence to the police officer who served the notice. Seven firearms were consequently seized by the police. Two of the seven firearms were loaded at the time they were seized and, according to the respondent, not appropriately stored.
- [3]On 22 March 2023 the applicant filed an application in the tribunal to review the decision to revoke his licence. That same day, he also lodged an application to stay the decision under review under s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
- [4]On 15 May 2023 the tribunal dismissed the application for stay. The applicant now seeks leave to appeal from that decision refusing the stay (the stay decision). The review is listed to be determined on the merits on 17 June 2024.
- [5]The applicant requires leave to appeal against the stay decision under s 142(3)(a)(ii) of the QCAT Act. As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage.[1] Accordingly, in deciding whether to grant leave the Appeal Tribunal will usually make some preliminary assessment of the proposed appeal.[2]
- [6]The decision by the Tribunal below to refuse the stay application is a discretionary decision. There is a strong presumption in respect of appeals involving discretionary judgments that the decision appealed from is correct.[3] A discretionary decision should therefore be affirmed unless the Appeal Tribunal is satisfied it is clearly wrong. It may be sufficient to overcome the strength of the presumption in favour of the decision appealed against where there is an error which consists in acting on a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts.
- [7]Under s 22(3) of the QCAT Act the tribunal may stay the operation of all or part of a reviewable decision if a review proceeding has started. The tribunal may order a stay only if it considers the order is desirable after having regard to the matters in s 22(4). Those matters comprise:
- the interests of any person whose interests may be affected by the making of the order or the order not being made;
- any submission made to the tribunal by the decision-maker for the reviewable decision;
- the public interest.
- [8]That involves a positive finding in favour of a stay which means that the factors in support of a stay must together outweigh any factors pointing the other way.[4]
- [9]It is also relevant to note that the public interest consideration is particularly significant in the case of stays of the operation of decisions made under laws designed to protect the public.[5] The significance of the public interest and the need for compelling reasons to overcome it has been applied in applications to stay decisions involving weapons licensing.[6]
- [10]Other relevant considerations have been held to include whether the applicant has an arguable case on the review, and whether the balance of convenience favours a stay.[7]
- [11]
Application for fresh evidence
- [12]The applicant sought leave to adduce fresh evidence contained in an affidavit by the applicant dated 30 June 2023. The applicant’s affidavit addresses the allegation made in affidavits of Senior Constable Hawkey and Senior Constable Donaldson dated 18 April 2023 that some of the firearms seized had been stored incorrectly. In response the applicant states that the two firearms that were found to be loaded and not stored securely were, in effect, ‘in use’ by him at the time. The affidavit also addresses the applicant’s need as a primary producer to have access to firearms to control feral animals on his property.
- [13]The test to adduce fresh evidence in an appeal is set out in Clarke v Japan Machines (Australia) Pty Ltd:[9]
- the evidence could not have been obtained with reasonable diligence for use at the trial;
- the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
- the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, though it need not be incontrovertible.
- [14]The applicant submits that the evidence would, in effect, afford procedural fairness by allowing him to respond to what were ‘fresh allegations’ that had not been relied upon in making the original revocation decision and were not referred to in the respondent's submissions opposing the stay.
- [15]The respondent does not object to the applicant being granted leave to adduce the fresh evidence contained in the affidavit.
- [16]Although the tribunal is not confined to the reasons relied upon by the respondent in making the original decision, I am satisfied that the applicant was unaware the respondent would be relying on issues relating to the storage of his firearms in the stay proceeding and that, by the time the supporting affidavits were filed, the applicant had already filed his material. In those circumstances and given the relevance of the evidence to the decision whether to grant a stay, I grant leave to adduce the fresh evidence contained in the applicant’s affidavit sworn by him on 30 June 2023.
Grounds of appeal
- [17]There are three grounds of appeal:
- Applying the wrong principle
The Member erred in law in assessing whether there was an arguable case by finding the applicant had no right to exclude police from entering his property (referring to [11] of the Reasons). The applicant submitted that the Member referred to the reasons for the original decision at [7] which stated that Senior Constable Donaldson had a lawful right to enter the applicant’s property to conduct weapons storage compliance inspections and firearms audits under s 19 of the Police Powers and Responsibilities Act 2000 (PPRA). The applicant submitted that the Member adopted these reasons at [11] and that this constituted an error of law.
- Taking into account matters that were irrelevant, and not taking into account material considerations in not affording the applicant procedural fairness
The Member erred by accepting the untested and contested evidence of Senior Constable Hawkey relating to the storage of the applicant’s weapons, without affording procedural fairness to the applicant. The applicant has attempted to address this by leading fresh evidence to show that the applicant, as a primary producer, had a loaded gun at his disposal for ‘use to shoot’ as provided for under r 93 of the Weapons Regulations. The other weapons were properly stored.
- Inadequate reasons
The Member erred by failing to give adequate reasons as to why he rejected the applicant’s submissions, merely stating that the submissions appear[ed] to focus on police procedural matters that have no impact on Weapons Licensing authorised officer decisions. This indicates the Member completely disregarded, without adequate reason the submission that the request by the police to conduct a weapons’ audit and insistence after the applicant refused to allow Senior Constable Donaldson to enter his property, was based on s 19 of the PPRA Act that gave no such authority to conduct such an audit.
Consideration
- [18]This is an appeal against an exercise of discretion and, accordingly, the principles in House v The King[10] apply. Further, it is an appeal against a decision of practice and procedure, and the courts show further restraint on appeal in interfering with decisions of that nature.
- [19]Of course, where it is demonstrated that there has been an error vitiating the discretionary decision below, although the decision is set aside, the appeal court must again exercise the discretion.
- [20]A notable feature of the grounds of appeal is that, although they go to the issue of error, they do not heavily bear upon the ultimate exercise of the discretion as to whether or not a stay is desirable. That is, even if error is demonstrated, the errors do not bear heavily upon whether it was desirable to grant the stay, bearing in mind the matters to which regard must be had under s 22 of the QCAT Act.
- [21]It is, in my view, plain that the third ground of appeal should fail. On their face the reasons are adequate. The second ground of appeal raises a matter which is, in a practical sense, remedied by my permitting the fresh evidence on this appeal. I am prepared in respect of the first ground to proceed on the basis, without finding, that there is an arguable case that the applicant had a right to exclude the police from entering his property without a search warrant. I note, however, that the applicant does not go so far as to submit that any evidence thereby obtained was inadmissible: cf Bunning v Cross.[11]
- [22]However, even assuming that error is demonstrated (and I wish to make it clear that I do not so find), in my view the applicant has not demonstrated that it would be desirable for the stay to be granted. There is a significant public interest in the safe storage of firearms and strict adherence to the laws relating to them. There is considerable force in the respondent’s submission that the applicant’s position suggests that he, as a primary producer, who may need to use the firearms on short notice, is not bound by the strict requirements of the Act or Regulations.[12] There is also, I find, and without accepting one account over the other, a considerable body of evidence that demonstrates that the applicant stored the weapons in breach of the regulatory requirements.
- [23]In the circumstances, bearing in mind the authorities referred to above and the evidence relied upon by the respondent and the applicant, I am not satisfied that the applicant has discharged the onus upon it to satisfy me that it is desirable to grant a stay.
- [24]In so finding I have had regard to the interests of the applicant, who contends that he needs the firearms for the conduct of his primary production business; to the submissions made to the tribunal by the decision-maker; and to the public interest which, in my view, heavily favours the stay not being granted. I do not accept that there is a sufficient public interest in the applicant being able to eliminate feral animals on his property or indeed stock, in a humane way, before such time as the application for review will be heard, to persuade me otherwise.
- [25]Finally, I note the matter is listed for hearing of the review application on 17 June 2024. A review hearing is a hearing de novo, on evidence afresh, and will permit the applicant to raise all matters relevant to the contention that he should not have his firearms licence revoked.
- [26]In the circumstances I refuse leave to appeal and, accordingly, the appeal is dismissed.
Footnotes
[1]Crime and Corruption Commission v Lee [2019] QCATA 38 at [12]; Campbell v Queensland Building and Construction Commission [2021] QCATA 34 at [17]; Willmott v Carless [2021] QCATA 132 at [2].
[2]Terera v Clifford [2017] QCA 181 at [10].
[3]Australian Coal and Shale Employees’ Federation v Commonwealth of Australia (1953) 94 CLR 621 at 627 per Kitto J.
[4]Willmott at [27].
[5]Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [29].
[6]Willmott at [24]; Casella v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 255 at [34].
[7]Willmott v Carless [2021] QCATA 132 at [12].
[8] Ibid at [16].
[9] [1984] 1 QdR 404 at 408.
[10] (1936) 55 CLR 499.
[11] (1978) 141 CLR 54.
[12] See in particular r 93 and r 94 of the Weapons Regulation 2016.