Phillips v. Woolcock [2002] QDC 35 (15 March 2002)

[2] In the Magistrates Court on 28 September 2000 the appellant pleaded guilty to two charges, one of possession of dangerous drugs[1] and one of possession of utensils used in connection with the use of dangerous drugs. Convictions were recorded and a fine was imposed with a default period of imprisonment. The respondent's argument before me was that this involved conviction of an offence relating to misuse of drugs for the purpose of s.10(6) of the Act so that by that section the appellant was not a fit and proper person to hold a licence, so that such a conviction made the revocation of the licence automatic.

[3] The appellant appealed against the sentence, specifically the recording of the conviction, to the District Court pursuant to s.222 of the Justices Act. That appeal was heard by His Honour Judge Robin on 19 March 2001, and the appeal was dismissed. In the course of giving his reasons, His Honour dealt directly with the question of whether that section applied so that the appellant was bound to have his licence revoked.

Relevant provisions of the Act

[4] In order to understand the argument it is necessary to refer to some of the provisions of the Act[2]. Section 10 deals with the issue of a licence, and provides in ss.(2) that a licence may be issued to an individual only if the person (inter alia) is a fit and proper person to hold a licence. Subsections (5) and (6) provide as follows:

"5. For this section, in deciding whether a person is a fit and proper person to hold a licence an authorised officer must consider, among other things -

(b) whether a domestic violence order has been made against the person; and

(c) whether the person has stated anything in or in connection with the application for the licence the person knows is false or misleading in a material particular; and

6. However, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the five year period immediately before the day the person applies for the issue of a licence -

(a) the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, in any of the following offences -

(ii) an offence involving the use or threatened use of violence;

(iii) an offence involving the use, carriage, discharge or possession of a weapon; or

(b) a domestic violence order, other than the temporary protection order, has been made against the person."

[5] By s.20 a licence remains in force for a term of not more than five years. Within a period of 46 days starting 60 days before the day the licence expires, the licensee may apply for renewal of the licence: s.18(1). An authorised officer must decide that application before the licence expires: ss.(4). In deciding the application the authorised officer may consider anything at his disposal: ss.(5). Bearing in mind that at most the authorised officer will have a period of less than 60 days to make a decision, and possibly have only 15 days, an authorised officer may easily be put in a position of having to decide the application without having a proper opportunity to investigate everything which in his or her opinion requires further investigation, but there are (as I have noted before[3]) many aspects of this Act which are unsatisfactory in their operation. Subsection (8) provides:

"Section 10(2) to (6) applies to the renewal of a licence with any necessary changes."

[6] Section 29 permits an authorised officer to revoke a licence if the authorised officer is satisfied of any of a number of things, including that "the licensee is no longer a fit or proper person to hold the licence". It is also relevant to mention s.31, which enables a person, who holds or is seeking a licence to authorise that person to carry on business, to apply for the licence to be endorsed with the name of a fit and proper individual as that person's representative in the conduct of the business at a particular place (presumably to enable the business to be carried on at more than one place). Subsection (5) of that section provides:

"In this section - "fit and proper individual" means an individual who, if the person applied for a licence would be a fit and proper person under s.10."

[7] The argument of the respondent, accepted by the magistrate, was that whether a person is a "fit and proper person" for the purposes of s.29 involves consideration of the same issues as whether a person is a fit and proper person for the purposes of s.10, and that therefore s.10(6) applies so that, where it is satisfied, it means that the person in respect of whom it is satisfied is not a fit and proper person to hold the licence not only for the purposes of s.10 but also for the purposes of s.29. It was submitted that the test of whether a person was a fit and proper person should be the same wherever it arose under the Act, and that the reason why s.29(1)(d) refers to a "fit or proper person" is that in that section the issue is whether the authorised officer is satisfied of a negative, and in that respect it is sufficient if he is satisfied of either the absence of fitness or the absence of propriety in the licencee, whereas where a person is applying for a licence it is necessary for that person to show both fitness and propriety. I do not think that the use of the conjunction "or" rather than "and" is of significance, but there are I think other difficulties in the way of this argument.

[8] The first is that ss.(5) is introduced with the words "for this section" which means that it applies to s.10 and no other, at least in the absence of some other provision to that effect. Subsection (6) is introduced by the word "however". In my opinion that indicates that it operates as a qualification to or proviso on what has gone before, namely ss.(5). The operation of the two subsections fits naturally with this analysis. On this basis therefore the only operation of ss.(6) is a modification of the operation of ss.(5), which in turn operates only "for this section".

[9] In addition, there are two other provisions of the Act where these provisions are expressly made applicable in particular circumstances, namely sections 18 and 31. Section 31 in effect requires that an endorsed representative be a person who would be a fit and proper person if that person had himself or herself applied for a licence under s.10, and that is something which can easily and readily be determined by references to the provisions in s.10. Section 18 expressly provides that these and certain other subsections of s.10 apply "with any necessary changes". That addition is essential: there are aspects of ss.(6), for example, which would make the subsection useless in the case of an application for renewal of a licence in the absence of some modification. That is because it operates by reference to "the five year period immediately before the day the person applies for the issue of a licence" (emphasis added). Obviously if the person does not satisfy that requirement the licence would never be issued. If the licence has been issued that requirement must have been satisfied, and therefore (without some modification) would necessarily be satisfied at any time thereafter. The intention of the legislation expressed in s.18(8) was no doubt that ss. (6) operate in relation to a renewal by reference to the period of five years prior to the time when the licensee applied for renewal.

[10] By way of contrast to these two express provisions, there is no equivalent provision in s.29 which links the operation of any part of s. 10 to the determination of whether the licensee was "a fit or proper person". In circumstances where the legislature has expressly provided in s.10(5) that that subsection operates only "for this section", and then expressly provided in two other places that those provisions also apply for those other specific sections, I think it is very difficult to imply a legislative intention that those provision operate in respect of s.29 as well. If that has been the legislative intention it would have been easy enough to say so. Ordinarily where the legislature expressly provides in that in certain specific circumstances a certain consequence follows, the inference is that the legislature is not intended that consequence to follow in other circumstances.

[11] There is also the difficulty that, absent modification, s.10(6) does not really achieve anything useful in the context of s.29, since it operates by reference to a period of five years prior to the time when the licensee applied for the licence[4]. If an applicant had been disqualified by that subsection but that had not been realised when the licence was issued, there would appear to be power to revoke anyway under s.29(1)(a). There is also the consideration that there is an express power in s.29(1)(b) to revoke the licence if the licensee is convicted of an offence against any law in force in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon, a provision which would duplicate s.10(6)(a)(iii) if ss.(6) were to apply anyway. It would have been easy enough for the legislature in s.29(1)(b) to refer to all of the offences set out in s.10(6)(a) if that had been the legislative intent. The fact that one category has been picked out for inclusion and the others have not indicates that the legislative intent was more limited.

[12] One matter that was of concern to the magistrate was that, if s.10(6) did not apply to revocation, there was an anomalous situation because licences which were not necessarily to be revoked could not be renewed, because of the terms of s.18(8). But if a licence is to be revoked automatically because of one of the matters referred to in s.10(c), there will necessarily be no question of renewing it; one would not get to the point of renewal if the licence had already been revoked. The fact that the legislature made express provision for the factors in s.10(6) to be a bar to renewal logically means that the legislature must have contemplated that at the time for renewal licences would be in existence (ie unrevoked) notwithstanding that one of the matters referred to in s.10(6) had come to apply to the licensee. This is not to say that there is no anomaly; the point is that there is an anomaly whatever construction is adopted. The real anomaly in my opinion is that in s.18(8) no discretion is available, even though by then the authorities will have some additional relevant material on which to decide whether allowing the licencee to possess a weapon would produce a real risk of misuse of the weapon.

[13] I have commented elsewhere on the deficiencies in the drafting of this legislation, which probably is explicable by the fact that it was substantially amended in a hurry in 1996 under unusual circumstances. There also appear to be political difficulties in the way of amendments which would make the Act work in a more pragmatic fashion. I have considered the object of the Act in s.3(2) but in my opinion it is not assisted by an interpretation which would result in the automatic revocation of a licence in the case of the licensee who was convicted of the offence in possession of a small quantity of marijuana for personal use only, something which in some parts of Australia has been decriminalised.

[14] There is also the consideration that another judge has addressed this particular point and has arrived at the conclusion that s.10(6) does not apply to s.29 so as to make revocation automatic. That was the decision of Judge Robin in the case of the appeal by this appellant. The magistrate took the view that a statement in a previous decision by Judge Wall, Ranney v Commissioner of Police (1999) 20 QL Rep. 69 was inconsistent with the decision of Judge Robin, and followed Judge Wall. What Judge Wall said in that judgment at p.69 was:

"A licence may be issued to an individual only if the individual is a fit and proper person to hold the licence: s.10(2)(e). Factors relevant to that issue are referred to in s.10(5) and (6) and I need not repeat them here. I agree with the Stipendiary Magistrate that those factors are equally applicable to a decision to revoke a licence relying upon s.29(1)(d)."

[15] There are two things I would say about that statement. The first is that in the light of the issue before His Honour it appears to have been dicta only. The second is that it is not clear that he was saying there that s.10(6) applies so as to deem a person who falls within it not a fit and proper person for the purposes of s.29, as it would for s.10. His Honour may well have been saying no more than that the factors listed in s.10(5) and (6) are factors which would also be relevant for consideration under s.29, that is, proper matters to be considered when determining whether a person was fit or proper to hold a licence. It is one thing to say that those factors are relevant, something which follows not because the Act says they must be taken into account but because as a matter of logic and commonsense they are the sort of factors which do throw light on the question of whether a person is a fit or proper person to hold the licence. It is a different thing entirely to say that the Act operates so that, if a person falls within s.10(6), the licence must be revoked, because that person is taken (i.e. deemed) not to be a fit and proper person for the purposes of s.29. I do not understand His Honour Judge Wall to be saying that in his view the latter is the correct interpretation of the Act, but if that was his interpretation of the Act, then with respect I do not agree and prefer the interpretation adopted by Judge Robin.

[16] Considerations of judicial comity therefore would favour my adopting an interpretation consistent with that of Judge Robin. There is also the consideration that this appeal and the appeal before Judge Robin involved the present appellant, and had some representative from the police service as a respondent; the police constable who had been a complainant in the Magistrates Court was the respondent before Judge Robin, while in the matter before me the respondent is the police sergeant who was the authorised officer who made the decision. There may well be no res judicata or issue estoppel involved, but it does seem to me to be unfair for the police service to be submitting that the Act operates in a particular way for the purpose of resisting, and ultimately defeating, an appeal against sentence, and then to apply the Act in the opposite way when dealing with the question of revocation, the threat of which was the very matter which was the basis of the appellant's appeal against sentence. There ought to be some principle of law which would prevent the police service from blowing hot and cold in this way. However, I am deciding the appeal on the basis of what I consider to be the correct interpretation of the Act: in my opinion it is that s.10(6) does not operate in respect of s.29 so that matters listed in ss.(6) do not automatically render a person not a fit or proper person so as to justify revocation under s.29.

[17] I agree with Judge Wall that they are relevant matters for consideration. The significance of the matters however must depend on the particular circumstances of a particular case. The fact that there is something which is relevant to the issue and adverse to the licensee does not mean that the licence is necessarily to be revoked. Section 29 is cast in discretionary terms. One might expect that if a licensee were convicted of an offence which fell within s.29(1)(b) it would be more likely that it would be appropriate to revoke any licence than if the person was convicted of an offence which did not fall within that paragraph, even if, in the light of s.10(6), or as a matter of commonsense, conviction of such an offence might be seen as touching on the fitness or propriety of a person to hold such a licence.

[18] In my opinion there was an error of law on the part of the magistrate in concluding that the Act on its true construction required that the licence be revoked because of the conviction for the offences under the Drugs Misuse Act. It is however necessary to consider whether there was also an error of law in the conclusion of the magistrate that in any case, even if those offences did not lead to automatic revocation, it was appropriate in the light of those offences, and two other matters, to conclude that the appellant was not a fit and proper person. Those two other matters arose in the course of the appellant's employment.

[19] The appellant was employed by the Brisbane City Council for about nine years until February 2001; at the time of the hearing of the appeal before the magistrate he was unemployed. Evidence was given as to how he had behaved during two incidents in the course of that nine year period when superior officers within the Council had been dealing with the appellant. The first of these was about three years ago, the other more recent. In each case the magistrate accepted the version given by the Council officer, whose evidence was before him by way of affidavit and by way of oral evidence, including cross-examination.

[20] One officer said that in 1998 he, in company with others, met the appellant to discuss the impact that overtime was having on his health, because of concern with the amount of overtime that he was working. The appellant had said that he was stressed because he was buying a home and was in conflict with his landlord, and that the stress was making him ill, and the appellant was told that he should have rest and relaxation on the weekend rather than working overtime if stress was a problem. It occurs to me that if the stress was associated with financial difficulties the reduction in income which would be produced by not working overtime would be productive of more difficulty and therefore probably more stress rather than less. In any event, at that stage the appellant became concerned about the situation and left the meeting saying he wanted union representation. If he was concerned about the financial implications of being prevented from working overtime, that is understandable. Subsequently however he returned to the meeting and there was some further discussion, and ultimately the appellant agreed to a plan under which he would not work overtime for a month and see what happened.

[21] According to the council officer the appellant during the course of the discussion indicated that he had handguns at home. He said the statement was made out of context of the conversation, and caused him some concern, although it appeared from his oral evidence that his concern arose from the fact that the comment did not connect with anything which was being discussed, not because it was taken as a threat. The Council officer said in his affidavit that "he has made no threats towards me about weapons": para 21. One of the matters that he mentioned in his affidavit was that the appellant is a large well-built man, and it may be that merely because of this the Council officer felt disconcerted in the appellant's presence at a time when he was upset by what he was being told. The Council officer may have felt threatened by the appellant's physical capacity for violence even if the appellant was completely innocent of any violent intention, and it may be that the Council officer has drawn some unjustified inferences as to the attitude and intentions of the appellant. It would have been better if the magistrate had concentrated more on evidence of what the appellant actually said and did rather than on what the Council officer felt about the situation.

[22] The magistrate described this, and the other incident which I shall cover in a moment, as showing that there was "some propensity of the appellant to become angry and act inappropriately on at least those occasions". The fact that a person has some propensity when subjected to something disagreeable to become angry is not something I would regard as tending to disqualify the person from possession of a weapon. There would be few in the community of such a placid and pragmatic disposition that there would not be something that under some circumstances could provoke in them an angry response. If the appellant really had financial problems at the time, being told that he was not being allowed to work overtime, thereby aggravating the problems, is the sort of thing which I would not be surprised to learn had provoked an angry response in a person of normal disposition. The response was not very angry, the appellant calmed down soon afterwards, and there was no actual indication of violence associated with his anger.

[23] Reference to handguns, although inappropriate in the sense that it was not something which was logically connected to the subject of the conversation, was not necessarily sinister in any way. It may have been an indication that, as a result of the stress, and the difficulty that he was facing, his thoughts were turning to the possibility of self-harm. But even if it was "inappropriate" to be talking about his possession of handguns at that stage, that factor in itself could provide only the slightest justification for concern about whether the applicant was a fit and proper person.

[24] The other incident involved another Council officer who was interviewing the applicant about absenteeism and punctuality issues. He had raised such matters with the applicant on two previous occasions, and apparently on both of these occasions his response was professional and reasonable. There was then a further interview for the purpose of having him sign a record of the interview that had taken place on the previous occasion; a union delegate was also present. Some disciplinary action had been imposed, involving a demotion in his duties. When he was asked would he agree with the record of the interview he appeared to become agitated and aggressive, made finger gestures at the Council officer, blew a raspberry at him and swore at him, in language which involved a degree of hostility and disparagement but in my opinion did not involve a threat. The Council officer stood up and left the room. A few minutes later the appellant walked out the back door and kicked a plastic chair. He was well away from the Council officer at the time when he kicked the chair, and that act in my opinion could not reasonably be interpreted as an act of hostility towards the Council officer, or as anything other than an expression of frustration. It was a minor loss of self-control, but nothing that involved any display of violence to any person.

[25] The Council officer certainly felt threatened while he was in the room with the appellant, but only because the appellant became agitated. Again I think this is largely a by-product of the fact that the appellant is such a large man; he is going to appear threatening whenever he becomes upset, even if he has in fact no intention of displaying any violence towards anyone. There is nothing in the evidence of this witness to indicate there is any offering of violence to him on this occasion. It does indicate some propensity to become angry, when he is being subjected to a bit of bureaucratic procedure after having just suffered what he regarded as a demotion. In my opinion, some display of anger and frustration in such circumstances would be understandable, and I would not regard it as surprising in a person of normal disposition. It may have been inappropriate, since it would be preferable for a person to remain in perfect control at all times, but it did not involve any display of violence towards the Council officer.

[26] The expression "inappropriate" is one which is likely to be unhelpful in a situation such as this. There is a wide range of behaviour which one could describe as inappropriate behaviour but which would not provide any indication of unfitness to hold a weapons licence under the Act. It has been said that the term "inappropriate" could apply to matters such as drinking red wine with fish, or wearing brown shoes with a navy blue suit[5]. One might add, as examples of behaviour which some may regard as inappropriate, smoking in close proximity to non-smokers, playing loud music in an open vehicle, using painted statues of gnomes as garden decorations, taking a dog to foul someone else's footpath rather than its owner's yard, using non-gender neutral language in a published document, and failing to wear a hat when attending Flemington Racecourse on Melbourne Cup Day. Some people might consider that it is quite inappropriate to do any or all of these things, but I would not regard them as indicating, either alone or collectively, any unfitness to hold a licence under the Act.

[27] In my opinion the magistrate adopted the wrong test by concluding, simply on the basis of a couple of instances when the appellant became angry and acted inappropriately, that his fitness to hold a weapons licence was placed in question. It was relevant that the circumstances in which he became angry were circumstances which might well provoke an angry reaction from a person in his position of normal dispossession, his anger was limited, and it did not involve any manifestation of violence towards the other person.

[28] The other matter which was taken into account adversely to the appellant was the conviction for possession of a small quantity of marijuana. There had been a previous conviction for that offence, although it was as far back as 1987, when the penalty imposed was 50 hours of community service. It seems to me frankly that in these circumstances, and bearing in mind that there was only one other entry on the criminal history, dating from an even earlier period, the appellant was dealt with harshly by having a conviction recorded against him at all, but in the light of the authorities that could not be seen as outside the range of sentencing discretion. Nevertheless in my opinion it was relevant to have regard to the amount of the drug, the fact that it was for personal use, and that it was not one of the more harmful drugs.

[29] There was, in my opinion, nothing in the circumstances before the Magistrate which was capable of supporting a conclusion that the appellant was not a fit or proper person to hold a weapons licence. The magistrate's conclusion to the contrary indicates the he must have applied the wrong test. The object of the Act is to prevent the misuse of weapons: s.3(2). The discretion given in s.29 must be exercised with reference to that objective, no other considerations being specified by the legislation. All the Magistrate was concerned with was the mental fitness of the licensee, and he ought to have been considering whether there was some aspect of his mental state which gave rise to some real risk of misuse of weapons by him. A propensity to display violence towards others might well lead to such a conclusion, but merely getting angry occasionally (not accompanied by violent behaviour to others) in my opinion is too remote and does not give rise to a logical concern about the fitness of the licencee because of a propensity to misuse weapons.

[30] I am not saying that reference to these incidents was irrelevant, because it might be possible for a situation to arise where incidents such as these, taken in conjunction with evidence of other behaviour on other occasions, was sufficient to provide some logical basis for a conclusion that there was a real risk of a propensity to misuse weapons because of the mental state of the licensee. But without more adverse evidence as to his mental state, the evidence about these two incidents, in my opinion, is quite incapable of giving rise to any such conclusion, and therefore the magistrate must have applied the wrong test.

[31] I do not consider that the respondent's case is assisted by taking into account as well the offences involving marijuana. These also did not involve any offering of violence to anyone, or any direct indication of propensity of misuse weapons. So far as I am aware the use of marijuana is not characteristically associated with acts of aggression or violence, nor is it a particularly costly habit, like heroin addiction, which is commonly funded by criminal activity. I do not consider that the mere possession for personal use of a relatively small quantity of marijuana gives rise to any legitimate basis for concern about the possible misuse of weapons by the person in possession[6]. There was certainly no evidence to that effect before the Magistrate.

[32] It is also necessary to bear in mind that there was other evidence which spoke in positive terms of the responsibility of the appellant in relation to the use of firearms. The reliability of that evidence was not challenged, and even if the other matters could give rise to some slight concern that ought certainly to have been outweighed by evidence that the appellant had behaved properly and responsibly in his use of firearms. This was important evidence because it showed that, when he had access to firearms, he had not misused them. If a person already has a licence, and therefore has access to a firearm, he necessarily has a greater opportunity to misuse it than a person who is merely applying for a licence. In my opinion a track record of absence of misuse of firearms provides a much better indication of the likely behaviour of a licensee in respect of such matters than any of the circumstances relied on by the magistrate here. The magistrate referred to this evidence, but appears to have given it no weight. I regard it as deserving considerable weight. That also shows that the magistrate must have applied the wrong test.

[33] In light of all the evidence before the magistrate, in my opinion there was nothing close to the sort of circumstances which would justify revoking the appellant's licence. The magistrate must have arrived at the contrary conclusion in my opinion because he applied the wrong test. He did not give any consideration to whether there was a real risk of misuse of firearms, or whether the mental state of the licensee gave rise to such a risk, let alone how such a conclusion might logically follow from the evidence which he had heard and was accepting. In my opinion there is no logical basis of such conclusion and it follows that there was no proper exercise of the discretion to revoke the licence.

[34] I should add that the situation might well have appeared to be different at the time of the decision by the respondent, the authorised officer, because part of the material which was before him was a letter from an officer of the Brisbane City Council which among other things stated:

"On two occasions to date that this unit is aware of (there may be more) he has displayed an atrocious lack of emotional control and has made threats (both inferred and overt) to use weapons on members of Council staff."

[35] If that referred to the two incidents described in the evidence before the magistrate (and there is nothing in the material to suggest that there were any other incidents in which that behaviour occurred) that description of the incidents was false and wholly unjustified by the evidence. Such a description was a slur on the character of the appellant, for which I consider he deserves an apology from the Brisbane City Council. Nevertheless the respondent may well not have been in a position to expose this in the time available to him. Had the statement been true, it would have provided a logical basis for concern about the possible misuse of weapons by the appellant. The appropriate conclusion, in the light of the evidence before the magistrate, is that the statement was not true, and therefore ought to be completely disregarded.

[36] Section 149 of the Act is not forthcoming as to the powers of this Court on appeal. In the absence of some contrary provision in the Act, I consider that r.785 in the Uniform Civil Procedure Rules applies, which makes (relevantly) r.766(1) applicable on the hearing of this appeal. That means that I have all the powers and duties of the Magistrates Court. Accordingly the appropriate course, having decided there was an error of law on the part of the magistrate, is to make the only decision which it was open to the magistrate to have made in the light of the material before him.

[37] The appeal is allowed, the order of the magistrate of 9 August 2001 is set aside, and in lieu thereof it is ordered that the appeal against the decision of the respondent on 3 April 2001 to revoke the appellant's licence under the Weapons Act 1990 be allowed, and that decision be set aside. I substitute a decision that the licence not be revoked. I order the respondent to pay the appellant's costs of and incidental to the appeal to be assessed. There does not appear to be any power to make an order in relation to the costs of the appeal to the Magistrate's Court.

[1] In particular, 181 grams of cannabis sativa.

[2] I am referring to Reprint No. 4, as at 4 August 2000.

[3] See Dawson v. Tanwan (Charleville appeal 1/99, 10.12.99, unreported).

[4] It was therefore not activated by the convictions recorded on 28 September 2000, after he applied for the licence.

[5] Chambers v. James Cook University [No. 1] (1995) 61 I R 121 at 131 per Spender J; and see Conway v. R [2002] HCA 2 at #5 as to the essential meaninglessness of "appropriate".

[6] That was also the opinion of Judge Robin: Phillips v. Louw (Appeal D4135/00, 19.3.01, unreported) at p.5.