Stower v Smart[2007] QDC 4

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal against the decision of Her Honour Magistrate J Callaghan given in the Gympie Magistrates Court on 11 July 2006, in which she dismissed an appeal brought by the appellant Stower.

History

2. [2]
   At all relevant times Stower was the holder of three firearms licences issued to him under the Weapons Act 1990, enabling him lawfully to possess (a) firearms for recreational, sporting and rural purposes; (b) weapons as a collector; and (c) handguns for sporting and rural purposes.

3. [3]
   On 14 March 2006, at the premises of the Gympie Historical Society, Stower and a man named Brown were present. As the result of an alleged incident between the two of them, Stower was charged under s 340(1)(g) of the Criminal Code with the offence of serious assault (“serious” because Brown was over the age of 60 – he was 69; I note that Stower was aged 57). I was told that Stower has now been committed for trial on that charge before the District Court.

4. [4]
   On 16 May 2006, Inspector Smart of the Queensland Police Service, being an “authorised officer” under s 153(1) of the Weapons Act, decided that Stower’s three licences should be suspended, acting under s 28(1)(a)(i) of the Act.

5. [5]
   Section 28(1) of the Act is:-

“28Suspension of licence by giving suspension notice

3. (1)
   An authorised officer may, by a suspension notice given to a licensee, suspend the licence if the authorised officer –

1. (a)
   is satisfied that the licensee –

1. (i)
   has been charged with an offence against any law in force in Queensland or elsewhere –

1. (A)
   relating to the misuse of drugs; or

2. (B)
   involving the use or threatened use of violence; or

3. (C)
   involving the use, carriage, discharge or possession of a weapon; or

2. (ii)
   is temporarily unable to comply with a condition of the licence; or

2. (b)
   considers, on reasonable grounds, that the licensee may no longer be a fit and proper person to hold a licence.”

6. [6]
   The appeal to the learned Magistrate from Inspector Smart’s decision was brought under s 142(1)(e) of the Act. Section 147, in relation to such an appeal, provides:-

“s 147Hearing procedures

3. (1)
   An appeal is to be by way of rehearing, unaffected by the decision appealed against.

3. (2)
   In deciding an appeal, the court –

1. (a)
   is not bound by the rules of evidence; and

2. (b)
   must observe natural justice; and

3. (c)
   may hear the appeal in court or chambers.”

7. [7]
   Section 149 provides that a party aggrieved by the decision of the Magistrates Court may appeal to the District Court, but only on a question of law, and that is how the matter came before me.

Appeal to the Magistrates Court

8. [8]
   Among the exhibits tendered before the learned Magistrate was the police crime report (Exhibit 2) which dealt, very briefly, with the facts alleged to constitute the serious assault. In summary, Brown is described as examining membership applications (of the Society); Stower is described as becoming “extremely agitated, walking towards Brown, elbowing him, causing him to stumble, then pushing Brown with the palm of his hand, hard enough for him to fall “on his bottom” and slide two metres across the floor. It is recorded that Brown sustained no physical injuries.

9. [9]
   A further crime report, Exhibit 3, was tendered in which Stower is alleged to have committed a common assault on another person two days later. It was said to be tendered as “part of the background circumstances”. It does not appear that Her Honour referred to it and that may be a fortunate thing as I was told that this charge has since been dismissed.

10. [10]
    Perusal of the evidence given before the learned Magistrate by Inspector Smart shows that, in apparent disregard of s 147(1), cited in para [6], the reasons for his decision were investigated at length. This course of events must inevitably make it difficult for the magistrate hearing the appeal properly to exercise the discretion which was originally cast on Inspector Smart by s 28(1) in its use of the permissive “may”, and which was by s 147(1) cast on the learned Magistrate on the appeal to her. That she was required to exercise her own discretion is, I think, beyond dispute. It was accepted by both counsel. See also the judgment of McGill DCJ in Phillips v Woolcock [2002] QDC 035, especially at para [33].

11. [11]
    Perusal of the evidence given before Her Honour also reveals that precious little evidence was given of the events of 14 March, indeed only that which I have summarised in para [8], above. There was no evidence of what might have led up to the alleged assault. However there was uncontradicted, indeed unchallenged, evidence of Stower’s good character and particularly of his responsible behaviour with firearms and his compliance with the provisions of the Act.

12. [12]
    Are such things relevant? The discretion given by s 28 to the learned Magistrate can hardly be wholly dependant on satisfaction that Stower had been charged with an offence falling under s 28(1)(a)(i)(B). A decision based only on that would not be a discretionary decision but a simple finding of fact, moreover a finding of a fact which is almost certainly uncontested and uncontestable.

13. [13]
    Just as McGill DCJ, in paras [18]-[35] of Phillips discussed the evidence of the respondent’s character and his behaviour in relation to the question whether he was unfit to hold a licence (the section under review giving a discretion to find that), so the proper exercise of discretion in this case should include consideration of such things in respect of Stower.

Grounds of Appeal

14. [14]
    The grounds relied upon by Stower are:-

“1. The learned Magistrate erred in law in considering that she was bound only by the ‘public interest’ in deciding that the Appellant’s licences should be suspended because of the fact that he had been charged with an offence involving the use or threatened use of violence.

2. Since the only evidence of the ‘public interest’ was police intervention and reports in the media this evidence did not in law amount to ‘public interest’ and should not therefore have any bearing in the learned Magistrate’s decision.

3. The learned Magistrate failed to exercise her discretion or did not so properly as was required under section 28(1) of the Weapons Act 1990 in deciding whether in the circumstances of this case the Appellant’s licences should be suspended.”

The Decision

15. [15]
    Her Honour gave her decision immediately on the conclusion of the submissions given by Stower’s solicitor and the representative of the police service. Immediately she stated (correctly) that it was not for her to consider whether Stower was guilty or not guilty of the serious assault charge. She then recorded that Stower had given evidence and that two witnesses had given evidence of his good character. She did not elaborate on this or discuss the details of it.

16. [16]
    She is recorded as saying:-

“The Act that undermines” (sic – I think she probably said “underlines”) “all of this, of course, is the Weapons Act and its principles are set out in section 3 and I go back to them because they are very important. Weapon possession and use are subordinate to the need to ensure public and individual safety. It is clear from that that the legislation intended that the priority, when considering matters pursuant to this Act, the priority has to be public and individual safety.”

17. [17]
    The relevant part of s 3 to which Her Honour referred is:-

“(1) The principles underlying this Act are as follows –

1. (a)
   weapon possession and use are subordinate to the need to ensure public and individual safety”

18. [18]
    It is also of extreme importance to bear in mind the object of the Act which is stated in s 3(2) to be “to prevent the misuse of weapons”. That this is not expressly mentioned in Her Honour’s reasons is regrettable because the object of an Act is the over-riding aid to its interpretation. (Compare ss 14A, 14C, and 36 “purpose” of the Acts Interpretation Act 1954). While Her Honour in her reasons spends some time discussing s 4 of the Act (“How object is to be achieved for firearms”) I regard that discussion as obiter dicta and not central to her reasoning. It seems to be no more than a recognition that Stower must have displayed a genuine reason for possession of firearms in order to obtain his licences.

19. [19]
    Her Honour refers to the power given to her under s 148 to substitute another decision for the decision of Inspector Smart. However she did not substitute a different decision, but ultimately simply dismissed the appeal.

20. [20]
    It is appropriate to set out the balance of Her Honour’s reasons in full:-

“When the appellant was charged with this offence the inspector who was the authorised officer, went through a whole series of issues in his mind, which he outlined to the Court today. He clearly considered the offence and he went behind the offence itself even, and made comments to the Court as to whether or not he felt that there were reasonable prospects of success by the prosecution. He also obviously went to whether or not the appellant was a fit and proper person.

As I have said, I have listened to all of the evidence. This appeal is by way of rehearing which leads me to section 28 which deals with the suspension of a licence. It states,

[relevant portions of s 28 cited]

The offence that the appellant has been charged with is one of serious assault, and as I said at the outset, it is not for this Court to look behind that charge. He has simply been charged with that assault and it is to be yet dealt with by the Courts.

When I consider that, and I consider the public interest which has a priority and I consider the priority of public and individual safety, I am of the view that the licences of the appellant should be suspended, should remain suspended until such time as that offence has been dealt with by the Courts. The charge is there; it is in the public interest that the suspension remains in place. I dismiss the appeal.”

21. [21]
    In my opinion the reference to the way in which Inspector Smart carried out his functions and his detailed evidence on that point was in contravention of s 147(1). It was likely to lead Her Honour into error and I consider that it had that effect. In her reasons she simply repeated the charge which had been brought against Stower before concluding that the public interest and individual safety required the continued suspension of Stower’s licences. But she did not discuss any of the facts and circumstances which led her, in the exercise of her discretion to that conclusion.

Her Honour’s Discretion

22. [22]
    The fact of the charge of serious assault was the sole ground to which Her Honour referred in her reasons as the triggering event to cause her to apply s 28. But as I said in para [12], a decision based solely on that would not be an exercise of discretion. To begin with, the question to be considered should be the nature of the assault. Here, while Brown was aged 69, Stower was himself 57, well into middle age. Then the nature of the assault must be considered. An assault, after all, can be constituted by something as trivial as blowing in someone’s face or, when within arm’s length, making as if to strike a person. Here the alleged assault was not as trivial as those, but it still fell at the low end of the range. The effect of the assault is relevant. No injury was suffered. The reason for the assault, if known, would be a relevant consideration. Here one can glean from the evidence of Inspector Smart that it arose out of some sort of power struggle within the Historical Society. Such things can become heated and apparently did so here, but did not allegedly provoke Stower to punch, kick, or use any sort of weapon or offensive instrument. What occurred, allegedly, was some pushing and shoving. There is no suggestion that Stower uttered threats of violence, in particular any threat to harm Brown or anyone else and most relevantly any threat to use a firearm. What appears from all of that is that it was the sort of event (if the allegations are true) in which ordinary, generally law abiding people, can find themselves behaving quite out of character, often to their immediate regret and lasting embarrassment. In this case Stower offered an immediate apology to Brown “the reason being that I’ve known the man for so long and also to be able to move on from the incident”. Stower was not cross-examined.

23. [23]
    Then the proper exercise of a discretion would require the learned Magistrate to evaluate the evidence of the character of Stower. It was quite unchallenged that he has had a blameless past, had held and holds responsible positions, is not a violent man, has had an exemplary past so far as his use of firearms is concerned, that he offered an immediate apology to Brown, that there is no suggestion of bad blood between them such as might lead him to wish to harm Brown.

24. [24]
    From considerations such as those the proper exercise of discretion would then lead to the questions: “In those circumstances is there any real prospect of Stower misusing his weapons so that his licence should be suspended? Is his right to possess firearms a real risk to public and individual safety?” While it may be right to say, as Her Honour did, that the public interest had priority, public interest is best served by a proper application of the provisions of the Act.

25. [25]
    The classic statement on the exercise of discretion is to be found in House v The King, (1936) 55 CLR 499 at 505 (per Dixon, Evatt and McTiernan JJ):-

“If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

26. [26]
    In my opinion the conclusion must be drawn that Her Honour failed properly to exercise her discretion. I have reached that conclusion on an application of all three grounds of appeal rather than separately. It seems to me that they overlap.

My Discretion

27. [27]
    As Her Honour did not, in my view, exercise a proper discretion, it falls to me to do so. See Phillips at para [36]. In my opinion, for the reasons set out in paras [22] to [24], I am driven to answer the questions I posed in para [24] in favour of Stower.

28. [28]
    I allow the appeal and set aside the order of the Magistrates Court of 11 July 2006 and in lieu I order that the appeal against the decision of the respondent of 16 May 2006 to suspend the appellant’s licences under the Weapons Act 1990 be allowed and that decision be set aside. I substitute a decision that the licences be not suspended. I order the respondent to pay the appellant’s costs of and incidental to the appeal agreed at $3,000.