Liseo v Queensland Police Service
[2006] QDC 496
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- Unreported Judgment
- Liseo v Queensland Police Service[2006] QDC 496
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Liseo v Queensland Police Service[2006] QDC 496
Liseo v Queensland Police Service[2006] QDC 496
DISTRICT COURT OF QUEENSLAND |
|
CITATION: Liseo v Queensland Police Service [2006] QDC 496
PARTIES:
PAUL ALFRED LISEO | Appellant |
and
QUEENSLAND POLICE SERVICE | Respondent |
FILE NO/S: D885 of 2006
PROCEEDING: Appeal from Magistrates Court
DELIVERED ON: 14 December 2006
DELIVERED AT: Brisbane
HEARING DATE: 6 November 2006
JUDGE : Judge Brabazon QC
ORDER: Appeal dismissed
CATCHWORDS:
APPEAL – RENEWAL OF WEAPONS LICENCE – Whether a ‘conviction not recorded’ should have been taken into account – Whether the applicant was a ‘fit and proper’ person – Whether natural justice has been denied
Weapons Act, ss 3, 4, 9, 10, 10A, 10B, 13, 14 and 29 – Drugs Misuse Act 1986 – Penalties and Sentences Act 1992, s 12 – Criminal Law (Rehabilitation of Offenders) Act 1986, ss 3, 4, 5
Dawson v. Tanwan [1999] QDC 289
R v. Briese & Attorney-General of Queensland [1997] QCA 010 [1998] 1 Qd. R. 487
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Clerihan v Registrar of Motor Vehicle Dealers 1994 122 ACTR 25
R v Davis 1947 75 CLR 409
COUNSEL: | Mr A Kimmins for the Appellant Mr S A McLeod for the Respondent |
SOLICITORS: | Graham & Associates, solicitors for the Appellant Queensland Police Service, Solicitor for the Respondent |
The Issues
[1] Mr Liseo wanted to renew his weapons licence. Inspector Smart of the Weapons Licensing Branch at Brisbane found that he was not a fit and proper person to have a licence. He rejected the application for renewal, on 25 August 2005.
[2] Mr Liseo appealed to the Magistrates Court. The appeal was heard on 28 February 2006. The learned magistrate found that Inspector Smart was correct. The appeal was dismissed.
[3] Mr Liseo now appeals to this court. There are several issues. What is the effect of “no conviction recorded”, after his pleas of guilty in the Magistrates Court on 10 April 2003? What is the meaning of “fit and proper person”? Is it proper to take into account confidential information from a police informer without telling the applicant for a licence?
The Application
[4] Mr Liseo was born on 27 May 1979. From an early age he went shooting with his father. In 2000 he applied for and was granted a weapons licence. The licence had an expiry date of 25 October 2005.
[5] Mr Liseo trained as hairdresser. He now owns two hairdressing businesses. In March 2003 police searched his vehicle and his business premises. Amphetamine powder and knuckle dusters were found in his car. Ecstasy tablets were found at the business.
[6] On 10 April 2003 he appeared at the Brisbane Magistrates Court. He pleaded guilty to an offence of possessing a dangerous drug, contrary to the Drugs Misuse Act 1986. He also pleaded guilty to possessing the knuckle dusters, being a restricted item under the Weapons Act, without reasonable excuse. That was an offence under s 67(1) of the Weapons Act. He entered into a $120.00 good behaviour bond with respect to the drug conviction. He was fined $200.00 with respect to the knuckle dusters. In each case, no conviction was recorded.
[7] On 25 August 2005 he made an application to renew his licence. One of the questions in the application form was this:—
“Have you in Queensland or elsewhere in the last five years been charged with an offence?”
He answered:—
“No.”
[8] Inspector Smart was an “authorised officer” under the Weapons Act, with power to approve or reject the application (Weapons Act s 18). He was obliged to take into account any false or misleading statement on the application, and any criminal intelligence, because of s 10B of the Act:
“(1) In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things -
- (a)...
- (b)...
- (c)whether the person has stated anything in or in connection with an application for a licence or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and
(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 interests; and
- (d)the public interest.
- (2)However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period -
- (a)the person has been convicted of, or discharged from custody or sentence after the person has been convicted of, any of the following offences -
- (i)an offence relating to the misuse of drugs;
- (ii)...”
[9] When Inspector Smart considered the application, he took into account several matters:—
- (a)Mr Liseo's traffic history contained convictions for 22 traffic offences between 1996 and 2004. They were mainly speeding offences. He described it as a “substantial adverse traffic history.”
- (b)He took into account his criminal history relating to possession of a dangerous drug and possession of the knuckle dusters. He noted that no conviction was recorded, and the penalties that were imposed.
- (c)He took into account the court brief, and the fact that the possession of amphetamine was “of particular concem and highly relevant to this appeal.”
- (d)He took into account a police activity report from 11 January 2004. Mr Liseo had been seen at Kings Car Park in Fortitude Valley. A note on the police computer said, “Suspect appearance. In black BMW. Had been to recovery clubs where drugs were sold and used and suspected that he had used drugs.”
[10] Inspector Smart took those things into account in determining if Mr Liseo was a fit and proper person to hold a licence. He took into account that “Mr Liseo had submitted knowingly false and misleading information about a material feet” - that is that he had been charged with the two offences to which be pleaded guilty. He found that he was not a fit and proper person, with respect to the purposes of the Weapons Act. The application for renewal of the licence was rejected.
The Magistrates Court
[11] On 28 February 2006 the appeal came on for hearing in the Magistrates Court, Brisbane. The learned magistrate took into account the convictions of 14 March 2003. She took into account his traffic history. In that regard, she had heard evidence that Mr Liseo had appealed against a suspension of his licence. The appeal was heard by the Holland Park Magistrates Court on 11 January 2005. She also took into account some information not contained in Inspector Smart's affidavit and evidence. That was the testimony of the police officer who had arrested him in March 2003. He said that Mr Liseo was a suspected drug dealer at his hairdressing salons and at a local hotel, according to information from two informers.
[12] The learned magistrate took into account Mr Liseo's evidence about the question in the application form about any charges in the last five years. This is what she said:
“I have carefully considered Mr Liseo's testimony in relation to his false answer to question 5B of the application. I did not form a favourable view of his credit. I do not accept that the question was ambiguous in the application form and I do not accept that Mr Liseo held an honest, reasonable but mistaken belief that the words “charged with” did not require disclosure of proven charges when no conviction is recorded. ... I find that he knowingly and felsely answered question 5B of his application and that this incident is contrary to s 10(5) of the Weapons Act. ... I did not find it a credible explanation that he misunderstood the question on the application form.”
[13] She accepted that Inspector Smart was correct in considering the material before him, and that he had exercised his discretion appropriately. She found that Mr Liseo was not a fit and proper person to hold a weapons licence. His appeal was refused.
This Appeal
[14] The appeal to this court is only on a question of law - s 149 of the Weapons Act.
[15] It is submitted that the learned magistrate made an error of law, in finding that an incorrect answer to the question in the application form could be taken into account. That is, it was submitted that the terms of s 12 of the Penalties and Sentences Act 1992 had that result:
“12(1) A court may exercise a discretion to record or not record a conviction as provided by this Act.
- (2)...
- (3)Except as otherwise expressly provided by this or another Act -
- (a)a conviction without recording the conviction is taken not to be a conviction for any purpose; and
- (b)the conviction must not be entered in any records except -
- (i)in the records of the court before which the offender was convicted; and
- (ii)in the offender's criminal history but only for the purposes of sub s (4)(b).
- (4)A conviction without the recording of a conviction-
- (a)...
- (b)Has the same result as if a conviction had been recorded for the purposes of -
- (i)appeals against sentence;
- (ii)proceedings for variation or contravention of sentence; and
- (iii)proceedings against the offender for a subsequent offence; and
- (iv)subsequent proceedings against the offender forme same offence.”
[16] The effect of s 12, in this case, would be to prevent the convictions being taken into account in any way. An authorised officer could not rely on them. There is no express provision in the Weapons Act to the contrary. Indeed, in Schedule 2, “criminal history” is defined in a way which excludes convictions that are not recorded. It includes::
“... the convictions, other than spent convictions, recorded against the person for offences ...” (emphasis added).
Judge McGill took the same view, of the effect of s 12, in Dawson v Tanwan reported, 10 December (1999).
For an explanation of the impact of s 12, see the Court of Appeal in Briese v A-G of Qld (1997) QCA ORO. The decision recognises the serious impact of s 12:
“... when there is a non-recording of a conviction, there is a prohibition upon entering the conviction into any records whatever (s 12(3)(b), other than the convict's own records ... The conviction “is taken not to be a conviction for any purpose” it would seem that an offender who declared, even in a statutory declaration, that he had no previous conviction or expressly denied having been convicted of the relevant offence could not later be charged with perjury ...”
[17] It is necessary to turn to the provisions of the Criminal Law (Rehabilitation of Offenders) Act 1986. While it does not expressly refer to the Penalties and Sentences Act the two statutes have to be read together. That Act deals with cases where a conviction is recorded, and those where it is not recorded. Where it is not recorded, the Act refers to it as a “charge” -
“3(1) ‘Charge’ means an allegation formally made in court that a person has committed an offence where -
- (a)...
- (b)a conviction is not recorded by a court in respect of the allegation; or ...”
4 Construction of Act
- (1)This Act should be construed so as not to prejudice any provision of law or rule of legal practice that requires, or is to be construed to require, disclosure of the criminal history of any person
- (5)Matter excluded from criminal history
- (1)It is declared that a conviction that is set aside or quashed and a charge are not part of the criminal history of any person.
- (2)A person shall not be required or asked to disclose and, if so required or asked, shall not be obliged to disclose for any purpose a conviction that is not part of the person's criminal history or of the criminal history of another person or charge made against the person or another person.
- (3)Sub s 2 does not apply where the requirement or request to disclose a conviction or charge therein referred to is made -
- (a)for the purposes of an inquiry being conducted pursuant to authority conferred by or under an Act; or
- (b)...”
[18] As that Act says, the protection afforded by an order that a conviction not be recorded is not absolute. The two Acts have to be read together.
[19] Since 1992 the range of exceptions introduced into the 1986 Act has grown. The reference to an “inquiry” was added in 1988 by s 9 of the Commissions of Inquiry Act 1988. However, the language of s 4(3)(a), above is not limited to such an inquiry, but refers to an inquiry conducted under any Act. The effect of s 4(1) and s 4(3)(a), when read together, is that Mr Liseo was obliged to answer the question about a charge. That being so, the information could be taken into account by the authorised officer. Parliament can hardly have intended that Inspector Smart was entitled to rely on information from police informants and could ask about the charges, but had to ignore the pleas of guilty in a court. As Mr Liseo had to answer the question, it must be the case that an authorised officer was entitled to take the information into account.
[20] It could be argued that the later s 12 of the Penalties and Sentences Act amounted to the “indirect express amendment” of the earlier s 5. If so, there would be a partial repeal of the earlier Act, although its text remains unaltered. As Windeyer J said in Mathieson v Barton (1971) 124 CLR 1 at 10:
“... the only way by which a statute which has come into operation can cease to operate is by repeal, express or implied .... An Act that excludes from the operation of a former Act some matter formerly within its purview thus repeals it pro tanto, that is to say, in part. Provisions of a later Act which are inconsistent and irreconcilable with the provisions of a former Act dealing with the same subject matter are thus an implied repeal of them.”
[21] See the discussion of this principle in Kartinyeri v Commonwealth (1998) 195 CLR paras 9, 48, 67-69, and 174-175.
[22] Mr Liseo was asked the question in the application form, because of an inquiry being conducted under the provisions of Weapons Act. That is the cumulative effect of ss 3, 4, 9, 10, 10A, 10B, 13, 14 and 29.
[23] In my opinion, there is no such repeal of s 5. Mr Liseo was obliged to answer the question, and the convictions could be taken into account.
[24] The form which Mr Liseo signed asks him if he had been charged with any offence during the past five years. As the learned magistrate found, he deliberately gave a wrong answer to that question.
[25] The effect of the conviction is set out in s 10B - an offence relating to the misuse of drugs means that he is taken not to be a fit and proper person to hold a licence.
[26] Inspector Smart acted correctly, in taking that misleading answer into account - see s 10B(1)(c) of the Act.
Fit and Proper Person
[27] There is no need to consider this further. However, it may be helpful to record the approach that should be taken.
[28] Section 10(B)(1) of the Act requires the decision maker to determine whether the applicant is a “fit and proper person” to hold a licence. A leading case about the meaning of that expression is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ explained the expression at p 380:
“The expression ‘fit and proper person’ standing alone cardes 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 context, 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.”
The decided cases recognise, as might be expected, that a person's character is capable of change and rehabilitation. For example see R v Davis 1947 75 CLR 409 of 416, Clerihan v Registrar of Motor Vehicle Dealers 1994 122 ACTR 25 at pages 30-31 (Miles CJ):
“It is a matter of common experience that a person's character is capable of development over time. ... A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.”
Here, the question of fitness had to be considered against the principles and object of the Act:
“1. The principles underlining this Act are as follows:—
- (a)weapon possession and use as subordinate to the need to ensure public and individual safety;
- (b)public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and courage of weapons.
- The object of this Act is to prevent the misuse of weapons.”
[29] Inspector Smart referred to Bond's case. There is nothing to show that he, or the learned magistrate, misunderstood the concept of a fit and proper person.
[30] Where a licensee applies for the renewal of a licence, the authorised officer, in deciding the application, may consider ‘anything at the officer's disposal’. See s 18(5).
Natural Justice
[31] It was submitted for Mr Liseo that he had been denied natural justice, in that he was not given an opportunity by Inspector Smart to comment on the criminal intelligence information. Reference was made to the decision in Re Refugee Review Tribunal, ex parte Aala (2002) 204 CLR 82.
[32] In this case, the important thing is to focus on the proceedings in the Magistrates Court. The criminal intelligence was an issue there. Evidence was given about it. Mr Liseo was called as a witness, and had legal representation. It is unnecessary to decide if he should have been given an opportunity to respond to the allegations against him, on an earlier occasion. This is not an appropriate case to decide that question. In some cases, such as where an ability to earn an income is concerned, the refusal to renew a weapons licence can have serious consequences. That might point to a need to give an applicant a chance to respond. On the other hand, it may be that the right of appeal is an indication that the scheme of the legislation is not meant to include a right to a hearing before the authorised officer. For a discussion of the principles see Wade and Forsyth, Administrative Law 9th Edition, particularly at pages 527, 530 and 538. See also the decisions of the High Court of Australia in Kioa v West 1985 159 CLR 550 and Ainsworth v Criminal Justice Commission 1992 175 CLR 564.
Conclusion
[33] There have been no errors of law in the decision of the learned magistrate. It follows the appeal must be dismissed.