Review - Renewal of firearms licence - not a fit and proper person - breach of Weapons Act - importation of firearms - mental illness - post traumatic stress disorder

Queensland Civil and Administrative Act 2009, s 20

Weapons Act 1990, ss 10B(2)(a)(ii) and 3

Australian Broadcasting Tribunal v Bond & Ors (1994) ALR 56

Comalco Aluminium (Bellbay Ltd) v O'Connor & Ors (1995) 131

Director of Public Prosecutions [1991] VicRp 5; [1991] 1 VR 51

Stowers v Smart [2007] QDC 4

Alan Jeffrey Magarry represented by Mr Peter Kuskie of SK Lawyers

Queensland Police Service represented by Sergeant Clayton Bradford

[1] Mr Magarry has asked the Tribunal to review the decision of the Queensland Police Service Weapons Licensing Branch (QPS) to reject his application to renew his firearms license and to revoke his collectors license.

[2] The information notice advises that the decision was made on the basis that it was considered Mr Magarry was no longer a fit and proper person to hold a license due to it not being in the public interest.

[3] Mr Magarry had a successful and exemplary career as a Queensland Police Officer from 1983 up until September 2009. At this time he held the rank of inspector. He achieved much in his career including receipt of Premier's awards and recommendations from the Commissioner of Police. He engaged in significant volunteer work particularly with indigenous youth in Mt Isa where he was stationed for some time.

[4] He also endured significant torturous experiences as an officer - including attending fatal road accidents, one in which a motorcyclist was decapitated; a traumatic accidental fatal shooting, a road accident where a man's arm had been torn off and Mr Magarry had to retrieve the arm. On another occasion he was deployed by a defence force helicopter to recover decaying disfigured bodies from a plane crash where his safety was put at risk. He was almost killed when an offender attempted to set fire to himself with fuel and a lighter. He was the first officer on the scene of a murder suicide of three small children by their father and was charged with the task of notifying their grandparents.

[5] He had a long association with the use of firearms through his employment. He had conducted weapons training courses and was an explosives expert. He conducted other business activities which involved the use of firearms, one was the shooting of feral animals the other involved the making of plaques. In that business he was engaged by army and police services and their members to create plaques which exhibited moulds of weapons to commemorate events or achievements.

[6] His life began to unravel in September 2009 when customs officers intercepted four parcels at the Brisbane airport. The parcels were addressed to a "Roy Worchester" at Mr Magarry's home address. They were labelled "marine parts" however on inspection they were found to contain parts and accessories belonging to a derivative of an M16 military assault rifle.

[7] A search warrant was executed at Mr Magarry's house at which point several items were seized and concern was raised as to possible breaches of the Weapons Act 1990 regarding storage and possession of weapons. Mr Magarry was not at home at the time. He was on a shooting trip in Cairns.

[8] Mr Magarry participated in a disciplinary interview in September 2009 conducted by the internal investigation branch to answer questions in relation to the items seized under the warrant.

[9] The decision was made not to prosecute him or proceed with any misconduct charges as there was insufficient evidence to do so and it was determined that it was not in the public interest to do so. Following these events Mr Magarry suffered a severe breakdown and came under the care of psychiatrist Dr Greaves. He was stood down from the force in November 2009 and formally retired in June 2010.

[10] In July 2010 Magarry pleaded guilty in the Magistrates Court to three charges under the Customs Act 1901 (Cth): two charges of importing firearm parts and 1 charge of importing a prohibited firearm accessory.

[11] The Magistrate imposed a nominal punishment and no conviction was recorded. On the prosecutor's appeal, Judge Griffin in the District Court found the Magistrate had erred and allowed the appeal however on rehearing he found that it was appropriate that no conviction be recorded. He made the decision accepting medical evidence that Mr Magarry's actions were directly connected with Post Traumatic Stress Disorder he was suffering at the time.

[12] Although no conviction was recorded (which would have meant in effect automatic disqualification of Mr Magarry's entitlement to hold a license)[1] the QPS made the decision that in light of what had occurred Mr Magarry was no longer a fit and proper person to hold a license when considering the public interest.

[13] The hearing of the review is a rehearing on the merits[2] and the Tribunal must decide on the basis of all of the evidence before it whether the correct and preferable decision is to refuse to renew Mr Magarry's firearm license and to revoke his collectors license.

[14] Mr Magarry did not give any direct evidence and did not appear at the hearing. His psychiatrist gave evidence that the stress involved in doing so would be harmful to his mental health. Mr Magarry relied on written character references from various reputable persons. The transcript of the directed interview was before the Tribunal as was the transcript of proceedings before Magistrate Lee and Judge Griffin. QPS produced statements from officers involved in the execution of the warrant and the directed interview. Inspector Hickey, being the officer from the Internal Investigation branch who conducted the directed interview and made the decision not to take action also gave oral evidence.

[15] The facts largely are not in dispute.

[16] Mr Magarry's mistakes were twofold: firstly the importation of the parts of firearms and secondly the breaches of the Weapons Act 1990.

[17] It is not disputed that Magarry committed the offences under the Customs Act 1901. He pleaded guilty to the charges. He engaged in an act of deception and conspired with another person in the United States to import the parts and accessories in packages described as marine parts and addressed to a person who Mr Magarry knew to be deceased.

[18] Mr Magarry's explanation which was put by his lawyers to both Magistrate Lee and Judge Griffin was that whilst he could have legally imported these parts if he had obtained the necessary approval, the process would take a long time and he needed the parts quickly to enable him to put together plaques that he had been commissioned to construct.[3] The medical evidence (discussed below) was to the effect that this action was connected to the mental illness he suffered from at the time.

[19] There is some dispute as to whether in fact he would have obtained the approval however that is not of any consequence.

[20] Mr Magarry's other wrongdoing was the apparent breaches of the Weapons Act 1990 which were revealed after the execution of the warrant at his premises. It is accepted that:

• (a) Mr Magarry had in his possession a silencer and a browning machine gun which were not registered.

Whilst on first reading this is alarming, I accept from reading the transcript of Mr Magarry's answers to the directed interview that it was not sinister and the possession of these items was connected only with his passion for collecting firearms and parts.

I accept that he had purchased what he believed to be a muzzler (the silencer) at a gun shop and had put it away with the intention of one day dissecting it for use in one of his plaques.

The browning was a war relic with no functioning parts. Mr Hickey's evidence was that whilst it was a 50 calibre browning machine gun he could not recognise it as such because of its age.

(b) Mr Magarry had in his possession 5 electronic detonators which technically were explosives under the Explosives Act 1999 for which Mr Magarry did not hold an appropriate license.

In his interview with Hickey Mr Magarry described the items as "electric igniters which are electric matches but military ones".[4]

He could not recall having them or when they came to be in his possession but he explained that he had been a police bomb technician from 1999 to 2006 and was involved in destroying outdate military explosives for which these igniters were used.

He thought that he may have bought them back from such an exercise and put them away forgetting about them. He said he had no use for them.

Inspector Hickey in evidence commented the items were not detonators but sparking devices.

(c) Mr Magarry breached the Act in storing weapons without removing the bolts.

Inspector Hickey in evidence described this as a technical breach but did not see it as being a major concern because the guns themselves were in a locked safe.

(d) Mr Magarry committed a number of wrongdoings in relation to a weapon described as a Steyer semi automatic rifle. These were of more concern.

• (i) He had obtained permission to render weapons inoperable and to render this particular weapon inoperable in a way other than as per the regulation. This made it possible to remove inoperable parts and replace them with operable parts.

1. Mr Magarry had in fact done this and rendered the weapon operable. He had used it on a number of occasions for pig shooting expeditions.

2. The gun had been removed from his house and at the time the search warrant was executed and he had not recorded the removal in the register.

3. Upon becoming aware of the missing weapon telephone contact was made with him by Inspector Hickey. He lied telling him that he had removed the gun because he was taking it to Cairns to sell to a licensed dealer. In fact he had taken it to use on his shooting trip.

4. When asked to present the gun at the Cairns Police Station he removed the operable parts, threw them away in the river and threw the barrel into an open paddock. He told Hickey that "I was panicking big time, I got all the bolts and the plastic parts and I threw them in the Mulgrave river ..."[5]

Does it follow from these facts that Magarry is not a fit and proper person to hold a licence on the basis of public interest?

[21] The Weapons Act 1990 prescribes that a license can only be issued to a person who is a fit and proper person to hold a license.[6] Whilst the term fit and proper is not defined s 10B sets out certain matters that must be considered in determining whether a person is fit and proper - one of those is the public interest.

[22] The decision under review is that the revocation and refusal to renew was made as Mr Magarry was considered no longer to be fit and proper person to hold the license on the basis of public interest. The statements in decisions cited by the QPS for guidance as to the meaning of fit and proper and public interest are accepted, for example:

• The public interest includes standards of human conduct tacitly accepted and acknowledged to be for the good of society and the wellbeing of its members;[7]

• The interest of the whole community and matters to be considered in determining public interest.[8]

[23] The High Court in the decision of Bond[9] held that the term fit and proper:

"takes it meaning from its context and 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 it will not occur or whether the general community will have confidence that it will not occur".

[24] I agree with the submissions of the QPS that where the Act does not list the factors that they should take into account when deciding whether it is in the public interest to revoke a licence, the discretion should be exercised in a way which promotes the principles and objects of the Act.

[25] The principle underlying the Weapons Act 1990 is that weapons possession and use are subordinate to the need to ensure public individual safety and the object of the Act is to prevent the misuse of weapons.[10]

[26] This was the approach by Judge Skoien in the District Court decision of Stower v Smart.[11]

[27] In allowing an appeal against a Magistrate's decision not to overturn a weapons license suspension, Judge Skoien made the point that it was not sufficient when exercising the discretion to look at the offending behaviour (in that case an assault charge) in isolation he said:

• It is 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".

• The proper exercise of a discretion would require the Magistrate to evaluate the evidence of the character of Stower.

• 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 license should be suspended? Is his right to possess firearms a real risk to public and individual safety?"

[28] I accept that Mr Magarry in illegally importing the parts and in engaging what could be regarded as unintentional disregard for the legislative requirements for holding a license, acted in a manner that was less than what the public may expect of a licensed weapon holder. However that does not automatically lead to a finding that he is at present not a fit and proper person to hold a license in the public interest. In determining this issue I have had regard to the following:

(a) The findings of Magistrate Lee and Judge Griffin in the sentencing of Mr Magarry in relation to the customs offences.

[29] Magistrate Lee determined that no conviction should be recorded and a nominal punishment should be imposed.

He made this decision essentially on the basis of counsel's submissions outlining:

(i) Mr Magarry's exemplary and creditable career in the police force; and

(ii) As the consequence of the police raid Mr Magarry suffered a breakdown and was suffering post traumatic stress from traumatic events encountered in his career.

[30] Judge Griffin allowed the appeal by the prosecutor on the sentence. He considered the conviction for these offences with a nominal punishment was inadequate.

[31] The appeal however was by way of rehearing. His Honour heard evidence from Mr Magarry's treating psychiatrist, Dr Greaves.

[32] Mr Magarry first saw her following his breakdown in 2009. Her evidence[12] was that prior to September 2009 Mr Magarry had experienced, latent, unacknowledged and undiagnosed post traumatic stress disorder which resulted from the accumulation of stressful incidents in his work as a police officer. She said the depression/breakdown he suffered after the events in 2009 revealed the underlying post traumatic stress disorder. She believed that his undiagnosed and untreated post traumatic stress disorder led him to engage in behaviours that alleviated his stress (eg feral animal shooting and making plaques) and he may have made decisions that were based on a drive to alleviate his distress which he experienced as a priority, overriding good judgment. This may have contributed to his criminal act in obtaining weapons parts to construct replica parts.

[33] Judge Griffin accepted Dr Greaves' evidence that at the time of the commission of the offences Magarry was suffering from "post traumatic stress disorder". Dr Greaves gave oral evidence as to why Mr Magarry may have engaged in the deceptive conduct of importing the parts illegally rather than going through the proper process. She said it was linked to post traumatic stress she said:[13]

"I do think that Mr Magarry's difficulty in restraining his impulsivity and impatience might be analogist to someone who has post traumatic stress disorder and for example, drinks alcohol impulsively. I think it's a rapid way of apparently leviating distress which over rides regular good judgment and on the evidence of both Mr Magarry himself, and his wife, his engagement in firearms related activities took the form of a destruction or a diversion from his emotional distress which I think he had trouble of restraining because it was one of his few means of managing his internal distress."

[34] Judge Griffin in accepting Dr Greaves' evidence said he was satisfied Mr Magarry was in an abnormal emotional state caused by the post traumatic stress disorder to an extent that affected his ability to make proper judgments and one judgment being the way in which he imported the items instead of going through the correct channels.

[35] He commented[14] that rarely if at all had he seen such a comprehensive and credible explanation of the direct link between the condition and the defendant's conduct.

[36] He decided that whilst the Magistrate was incorrect in imposing only a bond simply on the basis of Mr Magarry's impeccable career record and difficult matters he had to deal with, a bond and no conviction recorded was in any event appropriate because of the mental condition which operated on Mr Magarry at the time of the commission of the offences.

[37] He also commented on the issue of deterrence and said that this case was not an appropriate general deterrent case because of Mr Magarry's mental condition and the other special circumstances.

[38] He commented on Dr Greaves' evidence that it was important for Mr Magarry's rehabilitation that he retain his weapons license so that he could continue with his hobby/business of making plaques. He said:[15]

"It is that evidence from the psychiatrist, which includes the fact that in terms of rehabilitation of this offender it is important that he be able to operate a business/hobby in a way he intends which assists his mental health recovery. This is no small matter in my view, and is again another factor which I have concluded in considering the operation of the propriety of the bond."

[39] In her written statement before the Tribunal[16] she said that Mr Magarry's recovery and rehabilitation would be facilitated by the opportunity to resume the practice of his skills and interest particularly in the area of firearm expertise and employment. She says she did not believe his mental state constituted any greater risk to himself or the community were he to regain access to firearms, than the average member of the community.

[40] In oral evidence she confirmed this opinion and said that Mr Magarry now had insight into his actions in committing the offences. She said he accepted he was not exercising proper judgment and he now has insight into his post traumatic stress condition and seeks help when needed. At the time of the hearing she was seeing him every 2 weeks.

[41] Whilst Mr Magarry himself did not give evidence he produced statements from persons who knew him and testified to his character and experience.

[42] Mr Kerry Danes who has had a distinguished career in the armed forces said he had known Mr Magarry since 1986 and considered his actions to be out of character. He saw him as being devoted to firearm safety and to the training of others in observing safety. He said since the charges he had engaged Mr Magarry to construct models of firearms for the military and had given him authority to attend army barracks and have access to weapons which he was moulding. He had no concerns about him being fit and proper to handle firearms.

[43] Mr Thomas Gilmore (Mayor of the Tablelands Council) said he had known Mr Magarry since 2000 when he was a councillor at Mt Isa and Mr Magarry was stationed there as a police officer. He said he assisted with the voluntary work Mr Magarry did in organising programs for Aboriginal youths. From knowing him on a personal and professional basis he found Mr Magarry's actions which resulted in the charges to be completely out of character.

[44] Steven Woodman, a decorated member of the defence force with a distinguished career, said he had known Mr Magarry since 2001. At one time he had been responsible for the professional assessment of procedures and training of the Clearance Diving Team One HMAS detachment. One of their roles was the explosive demolition of current world war 2 ordinance. He said that they had relied on Mr Magarry's experience as a police bomb technician in these exercises and due to his experience he was regularly asked to conduct firearms training for the team members. On the basis of working with Mr Magarry he could attest to Mr Magarry's high level of knowledge and professional conduct and strict adherence to safety and standard operation procedures. He said the actions were out of character and he personally had witnessed his "practically obsessive weapon safety procedures".

[45] QPS's submissions were to the effect that having regard to the objects of the Act Mr Magarry was not a fit and proper person to hold a license as it was not in the public interest.

[46] They said improper conduct had been engaged in by Mr Magarry and using the test in the Bond case they were not satisfied that the general community could have confidence the improper conduct would not reoccur.

[47] They submitted that the deceptive nature of Mr Magarry's conduct allowed them and therefore the Tribunal to form the view that the real intent of Mr Magarry in importing the parts was not to use them in making replica moulds but rather to apply his skills to convert a semi automatic rifle to a fully automatic rifle for his own use.[17]

[48] They also said it was apparent that Mr Magarry in breaching the Weapons Act 1990 had a disregard for the weapons law and the public interest demanded that a person who is licensed to possess a public weapons license should have exhibited greater self control than Mr Magarry had.

[49] I do not agree with the first assumption.

[50] I accept from considering Mr Magarry's responses in the directed interview, the evidence of Dr Greaves, the submissions put forward by his legal representatives in the District and Magistrates Court, the findings of Magistrate Lee and Judge Griffin and the evidence of highly respected witnesses, that Mr Magarry's purpose in importing the goods was not sinister, it was in fact for use in his business of constructing plaques.

[51] I agree that in other circumstances the deceptive nature of his actions could readily lead to the conclusion that there may be a risk of misuse of weapons and concern for public safety. However, I am guided by the findings of Judge Griffin based on the evidence of Dr Greaves that the acts of deception which lead to the offences were out of character and were closely connected to and a result of the post traumatic stress disorder he suffered from the tortuous experiences he had endured in his role as a police officer. Both Magistrate Lee and Judge Griffin were aware that Mr Magarry was concerned not to have a conviction recorded because that would mean an end to his weapons license.

[52] Both Judicial officers took this into account when deciding not to record a conviction. Whilst they were not deciding the issue they did not express any concern that they had if Mr Magarry were to have access to firearms.

[53] Dr Greaves said Mr Magarry was still suffering from depression but was having treatment. He now has full insight into the effects that the post traumatic stress disorder had on his judgment making ability. She had no concerns regarding the possible misuse by Mr Magarry of weapons but rather said that it would be in the interests of his rehabilitation to continue to have access to his license so that he could continue to engage in his plaque making business and recreational shooting. Whilst this is clearly subordinate to the issue of public safety, it is still a consideration when exercising the discretion.

[54] I also agree with the QPS that the behaviour of Mr Magarry in committing the offences and the breaches of the Weapons Act 1990 (particularly in disposing parts of the Steyer) fall below what the public would expect of a weapons license holder however for the reasons outlined above I consider these acts were inconsistent with his past character. It is necessary to look at his past excellent record in the community as a police officer and the connection between his mental disorder and the commission of offences in deciding whether it is or is not in the public interest for him to hold a license.

[55] Judge Griffin in sentencing Mr Magarry concluded that because of the special circumstances of his mental condition combined with other facts in his favour, Mr Magarry's case could not in any way be regarded as an appropriate general deterrent case or one which could in fact set a precedent for use.[18]

[56] For the same reason I do not think a finding that Mr Magarry is fit and proper to hold a license in circumstances where he has engaged in wrongful behaviour in any way sets a precedent for lowering the standard of behaviour that the public should expect of license holder. This is a case of special circumstances and should not be regarded as a precedent.

[57] In addressing the questions raised in the Stower's case I do not consider there to be any real prospect of Mr Magarry misusing his weapons so that his license should be revoked or that his right to possess firearms a real risk to public and individual safety. I am sure Mr Magarry having gone through this process will be well aware of his obligation in keeping and using his weapons in strict adherence to the requirements of the legislation.

[58] The decision not to renew Mr Magarry's firearms licence and to cancel his collectors licence should be set aside. His firearms licence should be renewed and his collectors licence reinstated.

[1] Section 10B(2)(a)(iii) of the Weapons Act 1990.

[2] Section 20(2) Queensland Civil and Administrative Tribunal Act 2009.

[3] Transcript of Proceedings before Magistrate Lee 23 July 2010, Page 1-12, Line 10; Exhibit PK-1 to the affidavit of PGC Kuskie dated 3 February 2012.

[4] Record of Interview, Transcript No. 1, Page 131; Exhibit CCB053 to the affidavit of CC Bradford dated 17 November 2011.

[5] Record of Interview, Transcript No. 2, Page 19, Line 580; Exhibit CCB053 to the affidavit of CC Bradford dated 17 November 2011.

[6] Section 10(2)(e) Weapons Act 1990.

[7] Director of Public Prosecutions v Smith [1991] VicRp 5; [1991] 1 VR 51.

[8] Comalco Aluminium (Bellbay Ltd) v O'Connor & Ors (1995) 131 ALR 657.

[9] Australian Broadcasting Tribunal v Bond & Ors (1994) ALR 11, at 56.

[10] Section 3 Weapons Act 1990.

[11] [2007] QDC 4.

[12] Written report of Dr Greaves, Exhibit CCB 056 to the affidavit of CC Bradford dated 17 November 2011.

[13] Transcript of Proceedings before Judge Griffin 14 March 2011, Page 1-19; Exhibit CCB035 to the affidavit of CC Bradford dated 17 November 2011.

[14] Transcript of Proceedings, Order, before Judge Griffin 14 March 2011, Page 1-7; Exhibit CCB036 to the affidavit of CC Bradford dated 17 November 2011.

[15] Transcript of Proceedings, Order, before Judge Griffin 14 March 2011, Page 1-13; Exhibit CCB036 to the affidavit of CC Bradford dated 17 November 2011.

[16] Affidavit of Dr Greaves dated 1 May 2012.

[17] Affidavit of CC Bradford dated 2 March 2012, paragraph 193.

[18] Transcript of Proceedings, Order, before Judge Griffin 14 March 2011, Page 1-12, Line 30; Exhibit CCB036 to the affidavit of CC Bradford dated 17 November 2011.