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[2016] QCAT 243
General information, not legal advice.
Queensland Civil and Administrative Tribunal
2016-07-11
Original judgment source is linked above.
Richmond v Queensland Police Service - Weapons Licencing Branch [2016] QCAT 243
Queensland Police Service - Weapons Licencing Branch
Review - revocation of firearms licence - Weapons Act 1990 - breach of Weapons Act - failure to correctly store a firearm - insecure storage of firearm - 'fit and proper person' under the Weapons Act 1990 - whether license should have been revoked
Cat v Queensland Police Service Weapons Licencing Branch [2015] QCAT 264
Avenell v Queensland Police Service Weapons Licencing Branch [2010] QCAT 496
Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378
Cormack v Queensland Police Service Weapons Licencing Branch [2015] QCAT 115
William Bruce Richmond represented by Mr Rhett Peters of Anne Murray & Co Solicitors.
Queensland Police Service represented by Sergeant Bradford.
[1] Mr Richmond is 61 years of age, married for 31 years to his wife Merrilyn Richmond who is 57 years of age. They have 4 adult children.
[2] Mr Richmond resides with his wife and one adult son in Emerald and has been employed by Ensham Resources Pty Ltd for 23 years and is currently an Open Cut Examiner/Co-ordinator at the Ensham Coal Mine near Emerald.
[3] He has held a weapons licence for 25 years and has used weapons for recreational shooting all his adult life having learnt to shoot in his teenage years under the supervision of adults including his father.
[4] On 26 April 2015, police attended Mr Richmond's home and served a revocation notice for his weapon's licence number 12356341 and seized 2 shot guns and 3 Rifles. All the weapons were registered to him and stored correctly in a compliant gun safe as required by the Weapons Act 1990 (the Act).
[5] On 12 August 2014, Mr Richmond pleaded guilty to an offence in the Emerald Magistrates Court of breaching S60(1) of the Act and was fined $400 with no conviction recorded.
[6] The circumstances of the breach are, in essence, that Mr Richmond took a Remington bolt action .223 Rifle Serial No s6779859 (the Rifle) from his home in Emerald to Taroom when he visited his son Jack William Richmond (Jack Richmond) on or about 7 June 2014. He took the Rifle for the purpose of recreational shooting.
[7] Mr Richmond removed the Rifle from his vehicle where it was locked and took it into his son's home at 19 Kinnoul Street, Taroom and left it unsecured on the top of a 7 foot high cupboard overnight. The next day he travelled back to his home in Emerald forgetting the Rifle and leaving it on top of the cupboard. Mr Richmond intended returning to Taroom in two weeks' time to go shooting and thought the Rifle would be 'ok' until then.[1]
[8] Before Mr Richmond returned for the Rifle it was used in a tragic suicide by Mr Kerry Lindsay Stower who resided in the house at 19 Kinnoul Street, Taroom.
[9] Mr Richmond has no other history at all concerning his holding or using weapons or failing to comply with any law concerning weapons.
[10] The only other possibly relevant history put before me by Queensland Police Service Weapons Licencing Branch (QPS) was a Traffic Record for Mr Richmond showing a series of 6 speeding offences dating from 1990 to the present day, with only one minor offence of 1 demerit point in the last decade.
[11] In light of what had occurred the QPS revoked Mr Richard's weapons licence on the basis that he was not a 'fit and proper person' to hold a licence[2] having regard to the public interest.[3]
[14] The first matter dealt with at the hearing was an objection by Mr Richmond's solicitor, Mr Peters, for the need for Jack Richmond to give evidence as he had not provided an affidavit in the proceedings, even though his affidavit in a Protection Order matter sworn 23 April 2013 was attached to Mr Richmond's affidavit.
[15] I made a ruling that if Mr Richmond wanted me to take note of Jack Richmond's affidavit then Jack Richmond would need to be available for cross-examination. After getting instructions, Mr Peters advised that his client did not seek to rely on Jack Richmond's affidavit and I ruled he need not be called for cross-examination. There was no objection from the QPS to this course of action.
[16] As indicated below the QPS asserted in cross examination that the Rifle was stored at Jack Richmond's house for quite some time as the Rifle originally belonged to Jack Richmond, but was transferred to his father when Jack Richmond lost his weapons licence.
[17] Mr Richmond denied this, but did not call Jack Richmond as a witness even though Mr Richmond's evidence is that Jack Richmond knew the Rifle was on the cupboard.[6] Jack Richmond must have known a time frame of when it was put there (and possibly how) and he could corroborate, in part at least, Mr Richmond's version of events.
[18] A further issue was that Mr Richmond had told police in an early interview[7] that another son had travelled with him on the trip from Emerald to see Jack Richmond, but in cross-examination he could not remember and did not provide any evidence from his sons or any other person on this point.
[19] While I think it curious that Jack Richmond would be at the court house and not called as a corroborating witness, I find that I am not able to draw any significant adverse inference from this.
[20] I invited the parties to provide further written submissions of some key questions and the last of these was received by QCAT on 21 April 2016.
[21] The facts are largely not in dispute following the evidence and submissions.
[22] Mr Richard's account of the facts is that he travelled from his home in Emerald with the Rifle to Taroom where his son Jack Richmond lived with his partner and daughter, with the intention of going recreational shooting with his son on a nearby property.
[23] The intention to go shooting was abandoned and the family group went to the bowls club for dinner. To allow his son's partner Jane and his granddaughter Isla to travel in the back seat of Mr Richmond's vehicle to the bowls club, Mr Richmond removed the Rifle from the rear of the vehicle and placed it inside the house, in a spare bedroom on a cupboard that was 7 feet high, where he believed it would not be seen.
[24] In cross-examination, this version of events was disputed by QPS. The QPS suggested to Mr Richmond that the Rifle (which had been his son's Rifle prior to his son losing his weapon's licence) had been at his son's house for a considerable amount of time to allow his son to use it for recreational shooting. Further, it was suggested to Mr Richmond that he did not agree with his son losing his licence and he was now covering up for his son.
[25] Mr Richmond denied this version of events regarding the storing of the Rifle, denied he did not think his son should have lost his licence and denied covering up for his son. This was not pursued in submissions by QPS. I note that the proposition the Rifle had been in Jack Richmond's possession for a 'long time' is not consistent with the version of events the QPS put to the Emerald Magistrates Court on 12 August 2014 in prosecuting Mr Richmond for failing to keep a weapon in secure storage.
[26] Mr Richmond's version of events is consistent with that put to the Magistrates Court in the prosecution by the QPS and in submissions the QPS did not significantly challenge his version of events. I accept Mr Richard's version of events.
[27] One of the matters I invited the parties to address in further submissions was any precedent for a first breach of the Act resulting in revocation of licence.
[28] The QPS submitted that the decision to revoke Mr Richmond's licence should stand despite it being a first offence.
[29] In further written submissions, the QPS cited the decision by QCAT Senior Member Cullen in Cat v Queensland Police Service Weapons Licencing Branch (Cat).[8] The breach in that matter while being a first breach, was not a single breach, but multiple breaches of many parts of the Act dealt with collectively. It is very different to this matter, which is a breach of failure to correctly store one weapon and ammunition, in that Cat's breaches included; having 16 unregistered weapons; possessing weapons in category C, D, H, M and R under the Act when his licence only allowed category A and B and failure to correctly store multiple weapons and ammunition, including loaded weapons in a bedside draw and under a bed.[9]
[30] There are two significant further factual distinctions between Cat and the matter before me. Firstly, in Cat_,_ there was a complicating factor of an undertaking by Cat, connected with proceedings for a Domestic Violence Order against him, not to hold any weapons.[10] Secondly, and more tellingly, that in considering if Cat by the time of the hearing understood his obligations as a licensee under the Act, the Senior Member concluded Cat's actions and admissions suggested he did not have a mature understanding of his obligations.[11]
[31] The first is obviously not an issue in the present matter and as to the second, I find there is nothing to suggest to me that Mr Richmond does not have a mature understanding of his obligations under the Act, albeit he made a mistake with tragic consequences on the occasion before me.
[32] QPS raised in written submissions that Mr Richmond attested to his good character in his evidence, but did not provide any corroborating evidence in the form of witnesses or references attesting to his character. While the onus[12] is on Mr Richmond to establish that he is 'a fit and proper person' I am left with the evidence before me and it suggests he is a fit and proper person, who has made a mistake that resulted in tragedy.
[33] I note in the findings of Senior Member Cullen in Cat, that evidence of general good character, Christian values, service to community and other good deeds did not, of themselves, satisfy the test of 'is a fit and proper person to hold a weapon licence'. Failure to lead such evidence is not fatal to the case Mr Richmond presented, even though such evidence would be relevant.
[34] In Avenell v Queensland Police Service Weapons Licencing Branch,[13] Senior Member Oliver noted that one issue in that case was the applicant had failed to correctly secure a weapon and ammunition at his home. He also stated that the QPS "candidly stated that this alone would not be enough to warrant a revocation being a first breach of the Weapons Act".[14]
[35] In setting aside the revocation notice, he went on to state that the fact that the applicant failed to secure his weapons and ammunition as required is of concern, but noted that he had been punished for that by way of prosecution and fine.[15]
[36] In Magarry v Queensland Police Service, Weapons Licensing Branch,[16] Senior Member O'Callaghan noted that both Magistrate Lee and Judge Griffin in the prosecution of Magarry for breach of the Act and the appeal were aware that Mr Magarry was concerned not to have a conviction recorded because that would mean an end to his weapons license and they did not record a conviction.
[37] Here, QPS submitted and gave evidence in the affidavit and testimony of Sergeant Hickey, that he thought the suspension of a weapons licence was automatic and that is why he did not make submissions for suspension in the prosecution of Mr Richmond for breach of the Act in the Magistrates Court in Emerald on 12 August 2014.
[38] In any event, the proceedings in the Magistrates Court and the sentencing do not directly impact on my role in this review. My role is to take evidence and regardless of any decision related to this matter, make a decision on whether Mr Richmond should be allowed to hold a weapons licence or not, on the evidence before me.
[39] The QPS submitted that "the death of a person is a probable consequence"[17] of the Rifle being left unsecured at a premises where one or more people reside who have a suspended weapons licence. This raises issues of Jack Richmond's mental health and the fact that the Rifle was left unsecured at a house over which Mr Richmond had no control and would not know who would be likely to enter the house.
[40] Mr Richmond gave evidence about Jack Richmond's 'mental health' and said that Jack Richmond had issues in 2013 that led, at least in part, to his weapons licence being revoked, but those issues are behind him and had not been of concern for a quite some time to the events of consequence before me.
[41] This is the only evidence before me as to Jack Richmond's mental condition in 2014 when the Rifle was left at his home. While carrying little weight if Jack Richmond's mental health was a substantive issue, as this is a matter for expert opinion, it is evidence of Mr Richmond's belief as to Jack Richmond's mental health, which impacts on the risk of leaving an unsecured weapon at Jack Richmond's home. There is no evidence before me that Jack Richmond, at the time Mr Richmond went to his home and left the Rifle, had any ongoing mental health issues.
[42] It may just be terminology, but I find on the facts before me that the death of a person is not a probable consequence arising from the actions of Mr Richmond. Rather, it is a very unlikely consequence with a tragic outcome.
[43] I find there is no evidence before me to establish that Mr Richmond knew or should have known that the risk of leaving the Rifle at his son's home unsecured was greater than the risk of leaving it in an 'average' residence unsecured.
[44] It was raised in affidavit material[18] by the QPS and the evidence of Thomas James Casson at the hearing, that Mr Richmond had sold the Rifle to Kerry Stower. Mr Richmond denied this in cross-examination. While accepting the evidence of Mr Casson "that Mr Stower told him he had purchased the Rifle", I accept the evidence of Mr Richmond "that he did not sell the Rifle to Mr Stower". I note that at the time of making the statement to Mr Casson, Mr Stower was quite intoxicated.[19]
[45] In making this decision, I have had particular regard to the principles and object of the Act.[20]
[46] The decision to revoke Mr Richmond's firearms licence number 12356341 is set aside. Mr Richmond's firearms licence is reinstated.
[1] See QP 9 and Queensland Police Service Court Brief (General) at folios 63 and 64 respectively attachments to the affidavit of Sergeant Clayton Bradford dated 7 July 2015 and transcript of Emerald Magistrates Court proceedings of 12 August 2014 attached to affidavit of Mr Richmond in this matter dated 17 August 2015 at "WBR1".
[2] Weapons Act 1990 ss 29 (1) (d).
[3] Weapons Act 1990 ss 10B (1)(d).
[6] Record of interview of Jack Richmond and Senior Constable Paul Fleet 25 June 2014 typed transcript middle of pages 4 and 5 (note the first page of interview transcript incorrectly has year as 2015).
[12] Cormack v Queensland Police Service Weapons Licencing Branch [2015] QCAT 115 at paragraphs 28 to 35.
[17] QPS written submissions paragraph 26.
[18] Statement of Witness Casson, James Thomas attachment to the affidavit of Sergeant Clayton Bradford dated 7 July 2015 at folio 45 to 48.
[19] Coroner's Report Form 20 A dated 20 January 2015 attached at folio 43 to the affidavit of Sargent Clayton Bradford dated 7 July 2015.
Richmond
Queensland Police Service - Weapons Licencing Branch [2016] QCAT 243