Section 189 Applications: Challenging the status of being a ‘prohibited person’ to carry a firearm in Victoria
Our client was a licensed firearm holder in Victoria and held a Victorian Firearms License, which was due to expire. Our client held five registered firearms to his license. The police made an application for an Intervention Order to be granted against our client for the AFM’s protection on the basis of a verbal altercation that ensued between the two parties. Our client was served with a Notice of Suspension pursuant to section 47 of the Firearms Act 1996 (‘the Act’) as he was charged with criminal offences.
The Incident
The AFM was arranged to marry our client’s daughter. On one of the pre-wedding functions, an argument ensued and the marriage was cancelled four days prior to the wedding. To discuss these matters, the AFM attended the accused’s residence with his parents. A heated exchange ensued between the parties over the money which was spent on bookings and preparation of the wedding. The heated exchange then resulted in a brief scuffle between our client’s son and the AFM, which was defused by other family members.
The Criminal Charges and the Intervention Order
Our client was charged with three criminal offences - extortion with a threat to kill, unlawful imprisonment, and threat to kill. In compliance with section 53(1)(a) of the act, our client gave Victoria Police the authority to transfer the firearms to a Licensed Firearms Dealer. All charges against our client were subsequently withdrawn by the prosecution, and the matter was dismissed from the Sunshine Magistrates Court.
However, our client consented to the application for the Family Violence Intervention Order without admitting the allegations contained in the application.
Prohibited Person Status
Subsequently, the police wrote to our client noting that he was recognized as a prohibited person under section 3(1) of the Act as he was subject to a final order under the Family Violence Protection Act 2008. As a result, the police noted that our client’s license would remain suspended for 5 years in accordance with section 47A of the Act.
In Victoria, being a "prohibited person" under the Firearms Act 1996 can have severe consequences, including the loss of a firearm licence. However, the courts have the power to relieve a person of this status in certain circumstances. In this case study, we look at how we successfully challenged an intervention order on behalf of our client, allowing them to regain their firearm licence.
Application under section 189 of the Act
In order get access to his firearms license, our client made an application under section 189 of the Act to be declared a non-prohibited person.
Relevant Factors
As stated by Nettle J in Pickford v Chief Commissioner of Police [2002] VSC 435, section 189 of the Firearms Act 1996 aims to relieve a person of being a prohibited person when that status is not appropriate. The court will assess the circumstances leading to the intervention order and undertake a risk assessment approach to determine if there is an unacceptable risk to the protected person if the applicant becomes a non-prohibited person. Factors relevant in our case included:
Whether firearms were involved in the circumstances leading to the intervention order;
Whether there is a risk that the applicant may use or threaten to use a firearm against the protected person if the court grants the application;
Whether the intervention order was motivated by collateral motives;
Whether the applicant has a genuine and healthy interest in firearms and legitimate reasons for wanting to hold a firearms licence;
The applicant’s criminal record.
Challenging the Intervention Order
Our client had an intervention order made against them by consent without admissions. As such, the original allegations made by the applicant for the intervention order could not be relied upon to prove the history of our client's conduct. Victoria Police would need to present evidence to support the original allegations and demonstrate that our client becoming a non-prohibited person would pose a risk to the applicant's safety.
Collateral Motive
We argued that the applicant had a collateral motive for obtaining the intervention order, as they felt disrespected and enraged by our client's family challenging their conservative Islamic views. Therefore, they provided an exaggerated account of events to the police.
Attempted Attack
Our client denied ever attempting to attack the applicant's father, despite the application for the intervention order noting that they had become enraged and attempted to do so. Our client was never charged for any such incident, and the statement of alleged facts recorded by the police did not make any such allegations.
Extortion with Threats to Kill
Our client denied making any threats to extort money, and we argued that their statement about putting the applicant's body in a body bag was merely a puff made in the heat of the moment after feeling disrespected. We also argued that there was no actual evidence of any threat to kill or injure.
Intervention Order and Firearms
No firearms were involved in the incident leading to the intervention order, and our client made no remarks suggesting that they had any intention to use firearms against the applicant or their family.
Criminal Record and Genuine Interest in Firearms
Our client had no previous convictions and had been engaging in target shooting and hunting activities for two decades. They had a genuine and healthy interest in firearms, which was important for their mental wellbeing and social circle.
Outcome
We successfully made an application under section 189 of the Firearms Act 1996, allowing our client to become a non-prohibited person and regain their firearm licence. Our arguments regarding the collateral motive for obtaining the intervention order, lack of evidence supporting the original allegations, and no involvement of firearms in the incident leading to the intervention order were persuasive to the court.
Conclusion
Challenging a firearm suspension can be complex, but with the right legal representation and a strong case, it is possible to regain a firearm licence. The relevant factors outlined in Pickford v Chief Commissioner of Police [2002] VSC 435 should be carefully considered, and evidence should be presented to support each factor that the court considers relevant.
