Cseke v Qld Police Service & Anor [2005] QCA 466

[1] McPHERSON JA: I agree with the reasons of Chesterman J, which I have had the advantage of reading.

[2] The application for leave to appeal should be dismissed with costs.

[3] MACKENZIE J: I agree that the application should be dismissed for the reasons given by Chesterman J, and with the order proposed.

[4] CHESTERMAN J: On 14 January 2002 the applicant was given a licence pursuant to the Weapons Act 1990 (Qld) ('the Act') to:

'1. ... possess and use registered weapons the category of which is endorsed on the licence for the marking, tranquilizing, control or destruction of animals in the course of the actual conduct of the licensee's business activities or occupation. ...

2. ... have possession of and use registered category H weapons at an approved shooting range. ...

3. ... have possession of and use category H weapons registered to this licence in the conduct of business ... as an animal controller. ...'

[5] Category H weapons are defined by section 7 of the Weapons Categories Regulation 1997 (Qld). They are, in effect, hand guns, sometimes called concealable firearms. The applicant's category H gun is a 9mm Glock semi-automatic pistol.

[6] The applicant's weapons licences were to expire on 9 May 2004. On 13 April 2004 he applied to renew them. The application was considered by the second respondent, Senior Sergeant Cavanagh ('the respondent'), on 18 May 2004. The applicant's licence to possess and use his pistol at an approved shooting range was renewed but his licence to use the weapon in the conduct of business as an animal controller was not. The reason for this refusal was that on the information provided the respondent could not be satisfied that the applicant had a genuine reason for possessing a concealable firearm for occupational purposes 'as the (applicant) had not provided information to substantiate a genuine reason existed or was likely to exist during the licensing period'.

[7] Section 3 of the Act sets out its principles and objects. The section provides:

'(1) The principles underlying this Act are as follows -

(a) weapon possession and use are 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 ...

(2) The object of this Act is to prevent the misuse of weapons.'

[8] Section 4 explains how the Act's object is to be achieved. The means relevant to this application is found in section 4(c):

'requiring each person who wishes to possess a firearm under licence to demonstrate a genuine reason for possessing the firearm ...'

[9] By section 9 a licence may be renewed only by an authorised officer. Section 11 sets out the reasons which may be advanced in support of an application to renew a licence, or to obtain a licence for the first time. The reason relevant to this application is:

'an occupational requirement, including an occupational requirement for rural purposes'.

[10] Section 10(2) limits the issue of licences. It provides that a licence may be issued only if the applicant for the licence:

'(f) has a reason mentioned in section 11 to possess the weapon ...'

[11] Section 18 deals specifically with the renewal of licences. By sub-section 5 the authorised officer who considers the application for renewal of a licence may consider 'anything at the officer's disposal.' By sub-section 9 the limitations on the issue of licences found in section 10 apply to the renewal of a licence.

[12] The result of this concatenation of statutory directives and restrictions is that the applicant's request to renew his licence to possess and use his pistol for purposes of animal control could not be granted unless there were an occupational requirement for it. That is to say it had to be a requirement of the applicant's occupation that he have and be able to use a pistol. Moreover the occupational requirement had to be genuine.

[13] It was on this point that the application to renew the licence failed. It appears from the material that the applicant has in the past worked in circuses at which large and naturally wild animals were trained to perform antics for the amusement of the public, and performed those antics in public. The applicant had been designated as the employee to disable or kill any such animal that might escape or show signs of aggression towards an employee or patron. The applicant has also lent his services as a volunteer to wildlife and conservation societies which attend animals which have been injured, usually by motor cars. Large kangaroos, in particular, when struck and injured become aggressive. The only humane course is to kill them, but often, because of their size and distress, they cannot be approached closely and have to be shot. A short barrelled hand gun is more effective for that purpose than a rifle.

[14] The applicant advanced as his genuine occupational reason for possessing and using his pistol that he had worked in the past as an animal trainer and with the wildlife societies in the role I have just described.

[15] The respondent sought confirmation from the applicant that he had a genuine occupational reason for using the pistol. In particular he asked the respondent to produce the weapon's register which an earlier licence renewal had required him to keep and in which he was to record his use of the weapon. The respondent anticipated that the register would show the extent to which the applicant had used his pistol for occupational purposes. The applicant did not produce his register nor details of how often he had used the weapon for occupational purposes in the past. The respondent inferred that the applicant had not used his pistol for occupational purposes. The respondent also ascertained that the applicant had not worked in any capacity in which he would have to control or train animals since 14 January 2002 when his licence was last renewed. The respondent thought that the applicant's services to the wildlife societies and his activity with them could not be regarded as an occupation.

[16] The applicant was dissatisfied with the rejection of his application to renew his licence and he appealed to the Magistrates Court pursuant to section 142 of the Act. Section 147 provides that such an appeal is by way of rehearing, 'unaffected by the decision appealed against'. The Magistrates Court, on hearing such an appeal, is not bound by the rules of evidence but must observe natural justice. By section 148 the court may confirm the decision appealed against, or set it aside and substitute another decision, or return the matter to an authorised police officer with directions as to the further consideration of the application.

[17] The appeal came before Mr O'Driscoll, Acting Magistrate, on 21 January 2005. The applicant gave brief evidence and was questioned about his occupational use of the pistol. He admitted that 'in the last three years (he hadn't) taken the Glock out'. The clear inference is that the applicant had not worked with dangerous animals at least in the three years prior to the appeal and had not been called upon as a volunteer to put down injured animals in the same period.

[18] Mr O'Driscoll reserved his decision and gave a carefully reasoned judgment on 1 February 2005, dismissing the appeal. He said:

'It would appear that Mr. Cseke is a fit and proper person to be licenced to possess concealable firearms ...

The only consideration for me in this Appeal is whether Mr. Cseke fulfills the strict requirements of the Weapons Act in respect to "genuine reasons" for the Category H (animal control) conditions.

...

I found Mr. Cseke to be an honest and truthful witness ...

I accept that historically Mr. Cseke has been a responsible and licenced member of the community authorised to possess ... concealable firearms ...

However, the issue for consideration is whether on the evidence ... Mr. Cseke provided sufficient and genuine reasons for the renewal of the Category H ... condition as part of the concealable firearms licence ...

... I accept that Mr. Cseke is a freelance trainer and handler. I also accept Mr. Cseke performs regular services as a volunteer ... I also accept that although Mr. Cseke has been license(d) in the past for the Category H weapon, he has not used that type of weapon for the purposes of animal control for a period of some three ... years.

... [I]n the light of the current circumstances I have genuine concerns that Mr. Cseke does not fulfil the obligations imposed upon him to satisfy the Court that a Category H (animal control) condition should be granted to him ...

I must apply the strict application of the Weapons Act ... accordingly I dismiss the Appeal.'

[19] From this decision the applicant appealed to the District Court. Section 149 of the Act provides that a party aggrieved by a decision of the Magistrates Court may appeal to the District Court (but only on a question of law).

[20] The applicant's submission to the District Court was that the acting magistrate was wrong to conclude he had not shown a genuine occupational requirement for a concealable firearm because he had not used the weapon for the purposes of animal control in the past three years. This, according to the applicant's written submission, 'confuses quantitative and qualitative criteria in establishing what is a need. It confuses potential (possible life saving) use of a weapon with actual use'.

[21] The further appeal came on before his Honour Judge Tutt on 21 July 2005. The appeal was dismissed. The learned judge noted that the appeal was available only on a question of law which, in the circumstances, required the applicant to demonstrate 'a failure to apply proper legal principles, or receive or omit relevant evidence which denied the (applicant) the opportunity to receive a fair consideration of the issues involved'. His Honour observed that the acting magistrate had had regard to the relevant sections of the Act; had carefully considered the evidence put before him by the parties; and made specific findings of fact in accordance with that evidence. His Honour concluded that the applicant had shown no error of law in the decision of the acting magistrate and, as I mentioned, dismissed the appeal.

[22] From this order the applicant seeks leave to appeal pursuant to section 118 of the District Court of Queensland Act 1967 (Qld). The starting point for the applicant is to demonstrate an error of law made by the magistrate which should have been corrected on the appeal to the District Court but which was left unamended by Judge Tutt. Leave to appeal will not be given where there is no discernible or arguable error in the judgment from which leave to appeal is sought. In this case the error must be one of law.

[23] There appear to be two bases to the applicant's sense of grievance that his licence was not renewed. Neither gives rise to an error of law. The first is that the applicant regards the refusal to renew his licence as a personal reflection on his character and he is annoyed by what he perceives to be the slight. The applicant is quite mistaken about this. Both the acting magistrate and the judge found him to be a man of good repute and character. There was an express finding that he was a fit and proper person to possess firearms. It is not possible to read anything said by the respondent, Mr O'Driscoll or Judge Tutt as expressing any personal criticism of the applicant.

[24] The second grievance comes from the fact that for many years prior to the respondent's decision on 18 May 2004 the applicant had applied for, and been granted, renewals of a licence to possess his pistol for the purposes of animal control. The basis asserted by him in the past for those renewals was the same as that which he put before the respondent and which was found to be inadequate. The criticism comes down to a complaint that the respondent should not have been more conscientious in his consideration of the application than the previous decision-makers had been. It is not a valid criticism of the respondent's decision that he discharged his duties conscientiously and with proper regard to the evidence and the law.

[25] It is obvious that the acting magistrate made no error of law and that Judge Tutt was right to so conclude. The applicant had to prove he had a genuine occupational requirement to possess a concealable firearm for the destruction of animals. He has not worked with animals for more than three years and has not, even in a voluntary capacity, been asked to shoot injured wildlife. It is not to the point to argue, as the applicant did, that the potential for such use exists and a need to use the gun might arise in the future. At the very least the evidence was capable of supporting the finding of fact made by the acting magistrate that the applicant had not demonstrated a genuine occupational requirement or reason for using his pistol for controlling animals. There was, therefore, evidence to support the finding and no error of law exists with respect to that finding. No other error of law was suggested.

[26] The applicant's failure on this occasion to have his licence renewed does not mean that, in the future, he cannot apply for a licence to possess and use a firearm to control animals if his circumstances alter and he can demonstrate a genuine reason for the licence.

[27] He did not do so with respect to the application which was the subject of successive appeals to the Magistrates Court and to the District Court. No error of any kind has been demonstrated in the decisions below and the application for leave to appeal should be refused.

[28] The applicant should pay the costs of the application. No order for costs was made in the District Court because of the sympathy felt for the applicant by the learned judge, but he has persisted with an application that was without merit. The application should be refused with costs.