Paterson v Commissioner of Police [2025] QDC 121

Justices Act 1886 (Qld) s 222, 223(1), 223(2), 225(2).

Police Powers and Responsibilities Act 2000 (Qld), s 19.

Weapons Act 1990 (Qld) s 28(1)(b), s 60(1).

Weapons Regulation 2016 (Qld) s 93.

Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172.

Fox v Percy [2003] 214 CLR 118.

Fraser v Commissioner of Police [2017] QDC 116.

Williams v Queensland Police Service [2019] QDC 275.

McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612.

Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679.

Office of the Director of Public Prosecutions for the respondent.

• [1] The appellant was convicted following a trial held in the Stanthorpe Magistrates Court on 30 September 2024 of an offence under Section 60(1) of the Weapons Act 1990 (Qld) and a further offence under Section 93 of the Weapons Regulation 2016 (Qld). He was sentenced to a fine of $400, and a forfeiture order was made in relation to the weapons subject of the offences.
• [2] The appellant filed his notice of appeal to this Court on 18 December 2024.
• [3] The appeal was heard by this Court on three separate dates: 3 February 2025, 14 February 2025, and 21 March 2025.
• [4] The appellant sought leave on repeated occasions through the course of the hearings to amend the original notice, and additional grounds were plead. The respondent, as a model litigant, did not object to those additional grounds, and leave was given.
• [5] The grounds plead were:

(i) that the relevant firearms were "Storm King Assets" and as such, no order could be made forfeiting such property to the State;

(ii) that the Magistrate erred in finding that the police officers were, in fact, witnesses of truth;

(iii) that the Magistrate erred in finding that the appellant did not have a lawful excuse for having the weapon unsecured;

(iv) that the "evidence regarding the offences" should have been excluded, as the relevant police officers were "unlawfully on the property" of the appellant; and

(v) that the Weapons Act 1990 (Qld) was not lawfully enacted legislation.

• [6] Other documents filed by the appellant concerned an objection to a decision made by an authorised officer under the Act to suspend his licence to hold a firearm.[1] The proper avenue for such review was to the Queensland Civil and Administrative Tribunal.

• [7] The appeal has been brought pursuant to section 222 of the Justices Act 1886 (Qld), and so it is by way of rehearing on the record, and any other evidence introduced with leave of the court.[2] An appeal by way of rehearing involves the appellate court conducting a "real review" of the evidence given at the trial.[3] In conducting the rehearing, the court must recognise the natural limitations that exist in the case of any appellate court proceeding wholly on the record, including, as in this case, the advantage the Magistrate had of seeing and hearing the witnesses.[4]
• [8] It is for the appellant to demonstrate that the decision subject of the appeal is a result of some legal, factual or discretionary error.[5] The mere existence of error is insufficient; the error must have resulted in an injustice.[6] Unlike an appeal in the strict sense, where the powers of an appellate court are limited to making the decision that should have been made at first instance, this Court must conduct a rehearing and can substitute its decision based on the facts and the law as it stands at the time of the hearing. In some cases, it may be that notwithstanding error in the proceedings at first instance, the appellate court is satisfied, applying the correct law, that the evidence proves the guilt of the appellant. In other cases, it may be that even had there been no legal error, the evidence is not sufficient to prove the guilt of the appellant.

• [9] The appellant represented himself at the trial and the prosecution called two witnesses, police officers who had seized the relevant weapons.
• [10] The charges:

"...on 21 November 2023, at Storm King...[the appellant]...as a licensee who had control of a weapon at 49 Pyramids Road at Storm King, failed to keep the weapon in secure storage facilities at the place when there was no person in physical possession of the weapon."

"...on 21 November 2023, at Storm King...[the appellant]...being a person who has a firearm, namely a Shanghai 61, under his control, failed to ensure that the firearm is unloaded, other than when it is being used to shoot."

• [11] Senior Constable Radcliffe attended 49 Pyramids Road, Eukey shortly after midday.[7] He was in possession of a notice of suspension of the appellant's weapons licence and it purported to authorise "all firearms, licences and permits".[8]
• [12] The police officers were met by the appellant at the butcher shop on the property and service was attempted.[9] The appellant was "a little bit heated" and continued to tell the officers that they were trespassing and were required to leave.[10] The appellant informed the officers that there was "a big sign on his front gate saying trespassers weren't allowed".[11] Radcliffe determined that service of the notice had been effected, and as the appellant would not permit access to the safe within the butcher shop, he declared an emergent search.[12]
• [13] The police officers seized two or three firearms from the safe.[13] The appellant informed the officers that he had another safe in the shed on his property, and the officers went with the appellant and seized further firearms.[14] The appellant revealed that there was a final firearm in his house and informed the officers that they were "not welcome" inside his home.[15] The appellant "went to get it".[16] Senior Constable Radcliffe accompanied the appellant.
• [14] Radcliffe entered the appellant's house, and the appellant retrieved a rifle from behind a wardrobe.[17] It was a big standard wardrobe in the main bedroom against the back wall. The rifle was leaning up within the small gap between the wardrobe and wall. The firearm was operable; it had a magazine and a bolt in it, but there were no rounds in the magazine.[18]
• [15] Evidence was produced certifying that this located rifle was a firearm as defined under the Act.
• [16] Radcliffe returned to the Stanthorpe Police Station in possession of the six weapons that were seized.[19] In the process of rendering the firearms safe for storage in the property office, Radcliffe observed that there was a slug in the chamber of the Chinese make lever spring piston air rifle, that had been seized.[20]
• [17] Evidence was produced, certifying that this air rifle was a firearm as defined under the Act.
• [18] When the air rifle was "cleared", the slug fell into the stock of the rifle.[21]
• [19] Radcliffe obtained a post search approval order that day, as he had conducted an emergent search at the property.[22]
• [20] Radcliffe accepted that he had not checked the breach of the air rifle when he first seized it, as he asserted that the appellant had been combative, and he had determined that it was not safe to check the firearm on site.[23] Radcliffe informed the court that his understanding was that the suspension was issued because the appellant was using a firearm for business purposes, not recreation and had not sought permission to do so.[24]
• [21] The appellant asked if the lever action shotgun was loaded or unloaded. Radcliffe indicated that he assumed so, as the appellant had not been charged with an offence concerning that firearm being loaded. Radcliffe then confirmed that the firearm had been checked and was empty. The appellant suggested that this was untrue, as the firearm was "unserviceable and wasn't able to be checked".[25]
• [22] Senior Constable Shield attended the property with Radcliffe. The officers located the appellant in his butchery. The appellant was "adamant" that the officers had no right to be on the property. The officers agreed to return to the gate. Radcliffe attempted to serve the appellant with the notice of suspension. The appellant "did not want to show us where his weapons were and have [the officers] go on the property and get the weapons". Radcliffe declared an emergent search and the appellant "reluctantly" showed the officers the two safes.[26]
• [23] Shields did not accompany Radcliffe in the search within the home.[27]
• [24] Shields "cracked open" the air rifle at the police station and found a slug within the chamber. Shields used his knife to "flick the slug out" and could not then find where the slug went.[28] Forensics later found the slug in the stock.[29]
• [25] Shields conceded that he did not check the air rifle on site or on the journey to the police station.[30] The appellant suggested that he had a firearm within his home to shoot rabbits as he was obliged to manage pests on his property under the "Biosecurity Act". The officer was not familiar with the Act. The Magistrate informed the appellant that he may make submissions regarding the Biosecurity Act at a later stage in the trial.[31]
• [26] Shields confirmed that the appellant had attended the police station after the search and informed the police that he was there to report the crimes of trespass and theft of "trust assets".[32] The appellant tendered an image of the trespass sign at the gate to his property.
• [27] The appellant gave evidence. His evidence commenced with a statement regarding citizenship and the lack of jurisdiction of the court.[33] The statement informed the court that "I am not a person. I am a man".[34] The appellant proceeded to "charge" the relevant officers and "press a claim by tort by way of threat of trust assets...for the amount of $75 million".

Whether the Magistrate erred in finding the police officers were witnesses of truth - the review of the evidence.

• [28] I accept the credibility and reliability of the two officers, upon the review of the evidence, bearing in mind the advantage held by the magistrate in seeing and hearing the evidence. Each officer provided testimony in consistent terms in relation to the attempt to serve the appellant with the relevant notice, and his conduct leading to the declared emergent search. Each officer provided testimony in consistent terms in relation to the circumstances of the seizure of the firearms. The appellant did not give evidence to the contrary. The factual recount provided by the officers was largely unchallenged.
• [29] Each officer provided testimony in consistent terms in relation to the discovery of the slug in the air rifle.
• [30] The presence of consistency is, in my view, persuasive of the reliability and credibility of each officer.
• [31] The appellant challenged the fact that the air rifle was not "cleared". The appellant contends that the evidence of Radcliffe should not be accepted, as he was under oath, and lied regarding the "checking" of the seized shotgun. A close examination of the record reveals that Radcliffe had assumed the shotgun had been "checked" at the station. I do not accept that Radcliffe's evidence was undermined to the extent that his evidence of the location of the weapons and further location of the slug within the air rifle should not be accepted beyond reasonable doubt.
• [32] The ground of appeal pleading that the magistrate erred in finding the police officers were witnesses of truth, in essence, is an appeal against conviction, in that it could not be supported having regard to the evidence.
• [33] On review of the record, I am satisfied, beyond reasonable doubt, that the appellant, at the nominated place and time, was a licensee of the firearms (this was not challenged), in control of the rifle within his main bedroom, that the rifle was a weapon under the Act, that the appellant had failed to secure that weapon in a secure storage facility when the weapon was not in the physical possession of any person. I conclude that the appellant was properly convicted of the offence pursuant to Section 60(1) of the Weapons Act 1990 (Qld).
• [34] On review of the record, I am satisfied, beyond reasonable doubt, that the appellant, at the nominated place and time, had the Shanghai 61 air rifle, that the air rifle was under his control, that the air rifle was a weapon under the Act, that the appellant failed to ensure that the weapon was unloaded at a time that the air rifle was not being used to shoot. I conclude that the appellant was properly convicted of the offence pursuant to Section 93 of the Weapons Regulation 2016 (Qld).

Whether the Magistrate made an error in finding the appellant did not have a lawful excuse for not having the weapon secured - the relevance of the Biosecurity Act 2014 (Qld)

• [35] The appellant contended that his firearms needed to be available for use at short notice to "fulfil his obligations" under the Biosecurity Act 2014 (Qld).
• [36] The appellant developed his submissions on this ground with passion. The appellant capably and colourfully explained the considerable harm that the rabbit population was causing within the community.
• [37] In the hearing before this Court, the appellant accepted that he had responsibilities to secure his firearms, and he accepted that he had facilities to secure the relevant firearms. The appellant explained that proper storage was remote from the location where he needed a firearm. As the appellant informed the Court, "if I see vermin, whether it's a wild pig or a rabbit or whatever, to go through three locked doors to where my gun safe was, to walk back", did not present him with the ability to exterminate the vermin on sighting. The appellant accepted that he may have moved the proper storage facility to accommodate this need.
• [38] This Court clarified whether the appellant was suggesting that he had been denied procedural fairness in litigating this issue. The appellant accepted that the Magistrate had provided him with an opportunity to develop this submission in his address. The appellant explained to this Court that he had developed confidence on the repeated occasions he had litigated this hearing and considered this Court was "more receptive to what I'm trying to get to". The respondent properly identified that the magistrate had expressed a view that the Biosecurity Act had no bearing on the matters before her, though invited the appellant to make further submissions "on that point".
• [39] To the extent that the appellant was introducing new evidence, this Court permitted the reception of the evidence provided by the appellant.
• [40] As sympathetic as this court is to the hardships encountered by the rural community in protecting their livelihood, the Biosecurity Act did not provide the appellant with any legal basis for failing to comply with the relevant provision of the Weapons Act.
• [41] There is a general obligation under the Biosecurity Act that requires persons to take all reasonable and practicable measures to minimise biosecurity risks associated with invasive animals under their control.[35] Examples of biosecurity risks include the need to manage the impact of invasive animals on a person's land. As the appellant correctly identified, rabbits are an invasive animal.[36]
• [42] The parties were not able to direct this court to any express provisions of either Act, reconciling the interlacing obligations to each Act. It is not evident that any such obligations are expressed in incompatible terms.
• [43] Accepting the proposed evidence of the appellant, I have determined that his responsibilities to the Biosecurity Act did not absolve him from his legal responsibilities under the Weapons Act. There is no purpose in ordering a rehearing of the trial.
• [44] The appellant's proposed evidence was that he needed his firearm to be accessible at short notice. The appellant accepted that the firearm had to be secured safely unless it was being used. The appellant understood the obligations of safe storage of firearms.
• [45] The appellant's proposed evidence was that he had used the firearm that morning, for the purposes of the Biosecurity Act, before the police attended the home. The essence of the appellant's contention was that the firearm was permitted to be unsecured as it may have been used soon. The appellant does not suggest that the firearm was in his physical possession as he surveyed his home for potential vermin. Rather, his proposed testimony was not of using but rather the potential for future use. The appellant appreciated that he may have secured the weapon properly at a location more proximate to future intended use.
• [46] The appellant was permitted to use the firearm for the purposes of meeting his obligations under the Biosecurity Act, and when he was not so using the firearm, he had a lawful responsibility to secure that weapon.

Whether the evidence regarding the offences was inadmissible because police were not lawfully on the property of the appellant.

• [47] The appellant contended that the search conducted by the police officers was unlawful. The appellant informed the court that there were two entries to his property. One entry was gated and clearly identified that it was a private area by a "no trespassing sign". As the appellant informed this court, that informed the world at large that "my home, my castle, my area is private". The other entry to the property had a public access driveway up to a butcher shop that he operated as a business on his property. The firearms were in this "public area".
• [48] The appellant informed this Court that his behaviour at the relevant search had been mischaracterised. The appellant submitted that the police officers' robust attitude was a response to his use of terminology which authorities often associate with Sovereign Citizens. The appellant explained that if, "they pulled up where they had and come into the business, they wouldn't have been trespassing and I wouldn't have been combative or as agitated as I was in asking them to leave". The appellant explained that other police officers had been at his business in the preceding two weeks to do a gun audit and had seen the shotgun, "so I can't believe the police that attended the property didn't know where my gun safe was".
• [49] The appellant contended, even if the officers had attended through the correct entrance, they were only permitted to serve "paperwork" and not lawfully permitted to seize any weapons.
• [50] The respondent sought leave pursuant to section 223(2) of the Justices Act 1886 (Qld) to adduce a copy of the suspension notice served by the police officers. The document was referred to during the trial, and the evidence of its contents was presented without objection in the trial from the officers. The document was not tendered in the trial. The appellant did not object to the admission of this evidence on the appeal.
• [51] Section 19 of the Police Powers and Responsibilities Act 2000 (Qld) provides the police with a general power to enter a place and serve legal documentation. The Magistrate found that attendance upon the property for the purposes of serving the notice of suspension was lawful. That decision was not in error.
• [52] The notice required the appellant to surrender firearms in his possession immediately. The appellant initially declined to do so, and so the officers intimated their intention to proceed to search the property, including the private home of the appellant, where the appellant had informed the police officers of the presence of weapons in those places. The evidence of the location and seizure of the weapons was not unlawful.

The Weapons Act 1990 (Qld) is an invalid Act of parliament?

• [53] The appellant contended that the Weapons Act 1990 (Qld) is an invalid Act. The appellant contended that, as a private member's Bill, there was a requirement that the Bill had to be passed by an absolute majority. The appellant informed this court quite apologetically, "that opens this huge can of worms that, you know, everybody that's been vilified or dragged before the courts under the 1990 Weapons Act".
• [54] The Act was passed through the proper legislative channels. The parliamentary records report that the Honourable T Mackenroth, Minister for Police and Emergency Services moved that the Bill be read a third time in the Legislative Assembly on 4 September 1990. The House was divided, and the division was resolved in the affirmative.[37] There is no merit in this ground.

• [55] The appellant contended at the trial that the property, the firearms, were held on trust and that he was then not the owner of the firearms. The appellant has not satisfied this Court of any trust arrangement that would result in a conclusion that he was not in lawful possession and ownership of the firearms.
• [56] As I have stated, I am satisfied, as was the Magistrate, to the requisite standard, that the appellant was a licensee at the relevant time. That inference is readily drawn from the content of the notice served upon the appellant. The Scheduled dictionary to the Weapons Act 1990 (Qld) defines that term to mean "a person in whose name a licence, in force at the material time, has been issued".
• [57] As the respondent properly submitted, the Magistrate did not identify under which legislative basis the order for forfeiture or destruction was made.[38] The appellant is very concerned that the forfeiture of the firearms would cause him considerable financial harm. It is also not evident that the Magistrate considered the basis upon which the suspension had been given effect to, as Senior Constable Shields provided in evidence, "I believe Weapons Licensing wanted you to add on the section where you can use firearms for work related purposes".
• [58] The respondent conceded that the failure to identify the precise lawful basis of the forfeiture was an error.[39] The respondent contends that this Court should set aside the order forfeiting the weapons and send the proceeding back to the Magistrate with directions for a reconsideration of the order.[40] I so order.

• [59] The orders are as follows:
  1. The appeal against conviction is dismissed.
  2. The order that the property seized is forfeited to the Crown for destruction is set aside, and the proceeding is sent back to the magistrates court to determine the appropriate order in relation to the property seized.
  3. No order as to costs.

[1] s. 28(1)(b) of the Weapons Act 1990 (Qld).

[2] s. 223(1) of the Justices Act 1886 (Qld).

[3] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at 686-687 at [43].

[4] Fox v Percy [2003] 214 CLR 118 at [23].

[5] Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172, [22]-[23]; McDonald v Queensland Police Service [2017] QCA 255; [2018] 2 Qd R 612 at [47].

[6] McDonald v Queensland Police Service, supra at [46].

[7] Transcript of trial proceedings, 30 September 2024, 1-13.30-35.

[35] s. 23(2) of the Biosecurity Act 2014 (Qld).

[36] Schedule 4 of the Biosecurity Act 2014 (Qld).

[37] Queensland, Parliamentary Debates, Legislative Assembly, 4 September 1990, 3525.

[38] s. 155 of the Weapons Act 1990 (Qld) or s.701 of the Police Powers and Responsibilities Act 2000 (Qld).

[39] Fraser v Commissioner of Police [2017] QDC 116; Williams v Queensland Police Service [2019] QDC 275.

[40] s. 225(2) of the Justices Act 1886 (Qld).