Chief Commissioner of Police v Colin Websdale
[2019] VSCA 305
•17 December 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2019 0068
| CHIEF COMMISSIONER OF POLICE | Applicant |
| v | |
| COLIN WEBSDALE | Respondent |
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| JUDGES: | MAXWELL P, TATE and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 October 2019 |
| DATE OF JUDGMENT: | 17 December 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 305 |
| JUDGMENT APPEALED FROM: | [2019] VCAT 666 (Judge Hampel) |
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FIREARMS – Public safety – Firearm prohibition order – Order prohibits person from acquiring, possessing or using firearms – Power exercisable by Chief Commissioner ‘in the public interest’ – Public interest in reducing risk of firearm-related violence – Order made against respondent – Order set aside by Tribunal on review – Whether public interest engaged because of respondent’s criminal history or ‘the people with whom [he] associates’ – Risk assessment required – Whether making of order likely to mitigate future risk – Not confined to potential risk arising from respondent’s future use of firearms – Respondent’s association with and authority over Rebels motorcycle gang – Adverse findings about risk to public safety posed by respondent and by Rebels – Tribunal misdirected itself as to risk assessment – Appeal allowed – Decision set aside – Prohibition order restored – Firearms Act 1996 Part 4A, Victorian Civil and Administrative Tribunal Act 1998 s 148.
WORDS AND PHRASES – ‘in the public interest’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr I R L Freckelton QC with Ms N E Hodgson | Victoria Police |
| For the Respondent | Mr D P Sheales with Mr T I Purdey | Malkoun & Co Lawyers |
MAXWELL P
TATE JA
NIALL JA:
Summary
On 29 May 2018, the applicant Chief Commissioner made a firearm prohibition order (‘prohibition order’) against the respondent (‘CW’). The order was made under pt 4A of the Firearms Act 1996 (the ‘Act’),[1] which had come into force on 9 May 2018.[2] The order prohibited CW from acquiring, possessing, carrying or using any firearm or firearm-related item and from entering or remaining on certain premises. The Chief Commissioner was satisfied that it was in the public interest to make the order because of CW’s criminal history and because of ‘the people with whom [he] associates’.[3]
[1]Also referred to as the ‘Firearms Act’.
[2]Pursuant to the Firearms Amendment Act 2018.
[3]Firearms Act 1996 s 112E(a), (c).
CW made an application to the Victorian Civil and Administrative Tribunal for review of the decision to make the prohibition order. On 8 May 2019, the Tribunal upheld the application and set aside the Chief Commissioner’s decision. The Tribunal was not satisfied that it was in the public interest to make a prohibition order in relation to CW. The Chief Commissioner now seeks leave to appeal from the Tribunal’s decision, on the ground that the Tribunal misdirected itself in applying the relevant provisions or, alternatively, that the Tribunal’s conclusions were not reasonably open on the evidence before it.
As will appear, the Tribunal made extensive adverse findings about CW’s association with the Rebels motorcycle gang and his continued association with and authority over members of the Rebels. Her Honour concluded that, by reason of his association with the Rebels and by reason of his criminal history, CW posed ‘a continuing threat or risk to public safety’.[4] Her Honour was not, however, satisfied that the making of a prohibition order would ‘abate’ that risk.
[4]Websdale v Chief Commissionerof Police [2019] VCAT 666 [104] (‘Decision’).
In our respectful opinion, her Honour’s assessment of risk was founded on an unduly narrow construction of the provisions. For reasons which follow, the question which had to be addressed was whether the making of the prohibition order would be likely to mitigate a risk to public safety which would exist, or be likely to exist, if the order were not made. It was not necessary that that anticipated risk relate to CW’s own future use of firearms. Furthermore, given the very strong findings which her Honour made about the risks to public safety posed both by CW and by the Rebels, the only conclusion reasonably open was that the making of the order would be likely to have the relevant positive effect on public safety.
Accordingly, we will grant leave to appeal, allow the appeal and set aside the Tribunal’s order. In its place, we will order that the application for review be dismissed. The prohibition order will therefore remain in force.
The legislative scheme
Section 112D of the Act provides that the Chief Commissioner may make an order prohibiting an individual from acquiring, possessing, carrying or using any firearm.[5] Under s 112D(3), a prohibition order may be made even though the individual to whom the order is to apply has never acquired, possessed, carried or used a firearm.
[5]In these reasons, ‘firearm’ includes ‘firearm related item’ as defined in s 112A.
The grounds on which such an order may be made are set out in s 112E, which provides that the Chief Commissioner may make a prohibition order:
only if the Chief Commissioner is satisfied that it is in the public interest to do so:
(a) because of the criminal history of the individual; or
(b) because of the behaviour of the individual; or
(c) because of the people with whom the individual associates; or
(d)because, on the basis of information known to the Chief Commissioner about the individual, the individual may pose a threat or risk to public safety.
A person to whom a prohibition order applies:
(a)must not acquire, possess, carry or use a firearm (maximum penalty: 10 years’ imprisonment);[6]
(b)is prohibited from entering or remaining on premises of various types, including premises used by firearms dealers and shooting clubs, and any other premises where firearms are stored (maximum penalty: 12 months’ imprisonment);[7]
(c)is liable, together with any person in that person’s company, to be searched by police without warrant or consent and to have firearms seized.[8]
[6]Firearms Act s 112B.
[7]Ibid s 112O.
[8]Ibid s 112R, 112S.
In addition, a police officer may, without warrant or consent, search any premises occupied or controlled by such a person.[9]
[9]Ibid 112Q.
Factual background
CW is a life member of the Rebels motorcycle gang. He became the President of the Geelong chapter of the Rebels in about 2005. After some years, he became the State President and remained in that position until around 2014. He was then State Vice-President until 2016.[10] CW continues to attend the Rebels’ clubhouse and socialise with members of the Rebels.[11]
[10]Decision [45]–[46].
[11]Ibid [89].
The Rebels are an ‘outlaw motorcycle gang’ (‘OMCG’) and have been associated with a variety of criminal activities, including dealing in illicit drugs. Between June 2012 and December 2014, the Attero taskforce, established by the Australian Crime Commission, targeted the activities of the Rebels. The investigation resulted in numerous illicit drug and proceeds of crime seizures from members of the Rebels.[12]
[12]Ibid [54].
During the early period of CW’s presidency, there were tensions between the Rebels and the Bandidos, a rival OMCG, in Geelong, set against the broader national context.[13] Between February 2007 and August 2008, there were multiple drive-by shootings, assaults and arsons involving members of the Geelong branches of the Rebels and the Bandidos. Many of the drive-by shootings and assaults occurred in homes occupied by members of the two gangs. The arsons and other drive-by shootings targeted their clubhouses. At one stage, police spoke to CW in his capacity as State President, in an attempt to negotiate peace between the Rebels and the Bandidos. He told them he could not do much as it was a national conflict.[14]
[13]Ibid [53].
[14]Ibid [53(c)].
On 22 October 2008, Ross Brand, the Sergeant-at-Arms of the Bandidos Geelong chapter, was shot dead at the entrance of the Bandidos’ Geelong clubhouse. Another Bandidos member, Paul Szerwinski, sustained non-fatal gunshot injuries. CW’s stepson, John Bedson, was convicted of Brand’s murder and of intentionally causing serious injury to Szerwinski.[15] CW’s son, Derek Bedson, was convicted of manslaughter and reckless conduct endangering life in relation to the same incident.[16]
[15]R v Bedson [2011] VSC 101.
[16]Ibid.
John Bedson was a member of the Geelong chapter of the Rebels and head of a group called Death Before Dishonour (‘DBD’), described by Inspector Wayne Cheesman of the Echo Task Force as a ‘feeder’ group for the Rebels.[17] CW, who was President of both the state branch and the Geelong chapter of the Rebels at the time, was questioned by police about the events surrounding Brand’s murder and declined to cooperate.[18]
[17]In evidence before VCAT, CW disputed the characterisation of DBD as a feeder group for the Geelong chapter of the Rebels. He said they were ‘just trouble’.
[18]Decision [53(d)].
Since 2008, the tensions between the Rebels and other OMCGs have continued. There have been multiple drive-by shootings, mostly directed at clubhouses or businesses associated with well-known office holders or members of other OMCGs. Property damage to clubhouses caused by fire or deliberate destruction of property, in addition to gunshot damage, has also occurred regularly. There have been numerous instances of assaults on members of the Rebels and other OMCGs.[19]
[19]Ibid [61].
CW has been spoken to by police on a number of occasions in his capacity as State President, sometimes in relation to proposed ‘runs’ by the Rebels, at other times in relation to confirming the establishment of new state chapters. He held himself out, as State President, as authorised to speak on behalf of the state branch and local chapters, as responsible for providing police with the contact details for the various state chapters, and for liaising, when necessary, between police and the national leadership of the Rebels.[20]
[20]Ibid [62].
In January 2014, 13 men wearing Rebels’ clothing and armed with various weapons took part in a ‘run through’ of a house in Deer Park. An occupant of the house, Michael Sleiman, suffered fatal injuries. He was stabbed and repeatedly beaten with various weapons by members of the group. Four of the 13 men involved were charged with offences relating to the death of Sleiman. Ultimately two were convicted of manslaughter.[21]
[21]DPP v Power [2016] VSC 498; DPP v Fisher [2017] VSC 21.
The national President of the Comancheros (another OMCG), Mick Murray, was assaulted by members of the Rebels in Darwin in May 2015. In the two years following the assault, there was a spate of drive-by shootings and arson attacks directed at clubhouses and businesses of the Rebels and the Comancheros in Victoria. There were also assaults on members of the Rebels and the Comancheros.[22]
[22]Decision [65].
CW denied any personal involvement in these or any other criminal activities on behalf of or involving the Rebels. He has also denied any knowledge, during his time as President of the Geelong chapter and the Victorian branch, of any involvement by any other Rebel members under his control in any criminal activities on behalf of or involving the Rebels.[23]
[23]Ibid [66].
During CW’s presidency, police found evidence of possession of firearms by other Rebels’ members and storage of firearms at Rebels’ clubhouses: [24]
[24]Ibid [80].
(a)In August 2006, a firearm and ammunition were found in the possession of David Russell, when a search was conducted at Russell’s home. John Bedson, who also lived in the house, was present at the search. Russell and Bedson’s association with DBD was borne out by the DBD tattoos on their necks. Bedson acknowledged his membership of the Geelong chapter of the Rebels and had a set of keys to the Geelong clubhouse in his possession.[25]
(b)In July 2007, a search warrant was executed at the Rebels’ Geelong clubhouse. CW attended during the search, in his capacity as Chapter President. A firearm and other weapons were located on the premises. There was insufficient evidence to identify the owner, or person in possession of, the weapons and no charges were laid.[26]
(c)In November 2008, 15 longarm rifles, including three which were unregistered were found during a search of the home of Joel Davis, the then Sergeant-at-Arms of the Rebels’ Bendigo chapter.[27]
(d)In January 2011, four firearms (a pistol, a revolver, a handgun and a sawn-off shotgun) were found during a search of the home of Ryan Field, a member of the Bendigo chapter of the Rebels.[28]
(e)In August 2011, a sawn-off shotgun and a loaded handgun and ammunition were found during a search of the home of Beau Edwards, the then Sergeant-at-Arms of the Bendigo chapter of the Rebels.[29]
(f)In September 2012, a sawn-off shotgun was found during a search of the clubhouse of the Mildura chapter of the Rebels.[30]
(g)In October 2012, three firearms were found in the possession of Jason Geoffre, a member of DBD.[31]
[25]Ibid [73].
[26]Ibid [55].
[27]Ibid [75].
[28]Ibid [76].
[29]Ibid [77].
[30]Ibid [78].
[31]Ibid [79].
The Tribunal concluded that it was likely that CW was ‘aware of the existence of at least some of those firearms’.[32]
[32]Ibid [80].
CW’s criminal history extended back to 1981 and involved 26 convictions or findings of guilt. In September 1995, CW was sentenced to 2 years’ imprisonment for two charges of amphetamine trafficking.[33] In November 2003, CW was convicted of recklessly causing injury. In July 2009, CW was convicted of two counts of possession of a prohibited weapon (a taser and an extendable baton)[34] without exemption or approval.[35] In 2012, CW was convicted on three counts of possession of a controlled weapon without an excuse, possession of cartridge ammunition without a licence or permit, unlawful possession of explosives,[36] and two counts of possession of a drug of dependence, as well as unlicensed possession of a category A long-arm.[37]
[33]Ibid [86].
[34]Ibid [85(f)].
[35]Ibid.
[36]It was common ground in this Court that these were fireworks.
[37]Decision [85(f)].
The reasons for decision
Her Honour made detailed findings on the evidence before her, which may be summarised as follows. In relation to CW, her Honour said she was satisfied that:[38]
[38]Ibid [92]–[100].
(a)he had for a long time adhered to, and intended to continue to adhere to, the Rebels’ code of conduct;
(b)he had a very long history of association with like-minded individuals who also adhered to that code of conduct, and he intended to continue those associations;
(c)he was aware of past incidents involving the Rebels and other OMCGs, and of the various occasions on which Rebels’ clubhouses had been attacked or were the subject of arson attempts;
(d)he was aware of the various police searches of Rebels’ clubhouses and of much of the extensive criminal activity in which members of the Rebels had been involved, including possession or use of firearms by members of the Rebels;
(e)if, as he claimed, he did not know in advance of the attacks which led to the deaths of Sleiman and Brand, his failure as State President of the Rebels to take disciplinary action against the assailants for carrying out attacks in the Rebels name indicated — at least — retrospective approval or sanctioning of the conduct of the Rebels involved;
(f)he had consistently adopted and applied the Rebels’ policy of non-cooperation with the police;
(g)he had continued to associate with, and remain loyal to, men who had committed serious, sometimes fatal, offences of violence, including firearm-related fatal violence and serious property damage offences involving the use of firearms;
(h)he was not concerned with the impact of his actions or those of the Rebels on the community at large; and
(i)by reason of his role in the hierarchy of the Rebels, he was more likely to be a person giving directions than receiving them, and he was able and likely to distance himself from any direct involvement in criminal activity, including the possession or use of firearms.
At the same time, her Honour found that:[39]
(a) CW did not himself have a history of acquiring, carrying or using firearms;
(b)while there was some evidence that he had resorted to violence, there was no evidence that he had ever armed himself or sought to arm himself with a firearm;
(c)he minimised the Rebels’ connection with firearms and violence and the harm flowing from their conduct;
(d)by reason of his association with and role in the Rebels, the prospect of his being at risk of harm or under threat now or in the future could not be ruled out; and
(e)there was no evidence, however, that he had ever armed himself, whether offensively or to protect himself, against a real or perceived threat to his life.
[39]Ibid [96]–[102].
Her Honour further concluded that:
(a)the people with whom CW associated, and who identified as members of the Rebels, were prepared to engage in the range of serious criminal activities identified in the evidence, including possession and use of firearms;[40] and
(b)the activities of the Rebels, whether directly firearm-related or not, posed a risk not only to members of other OMCGs but to the public at large.[41]
[40]Ibid [93].
[41]Ibid [97].
Her Honour then proceeded to address what she identified as ‘the question for determination under ss 112E(a) and (c)’. It is necessary to set out this section of the reasons in full:
All this leads me to conclude that the activities of the Rebels which I have detailed pose a threat to public safety and peace. Similarly, the activities of the individuals with whom the Applicant associates pose a threat to public safety and peace. And the Applicant, by his association with the Rebels and the individual members with whom he associates poses a threat to public safety and peace. I use the language of public safety and peace because they are words appearing in the introductory words of [s 1] of the Act, which states the purpose of the Act. Section 1(a) begins:
the possession, carriage, use, acquisition and disposal of firearms are conditional on the need to ensure public safety and peace.
I am also satisfied that the Applicant poses a continuing threat or risk to public safety by reason of his long-term and continuing identification with the Rebels, their values, and his continuing association with fellow members of the Rebels.
However, the question for determination under ss 112E(a) and (c) is not whether the Rebels generally, or the Applicant specifically, pose a threat or risk to public safety. Were that the question, on the evidence before me, I would have no hesitation in answering it in the affirmative.
Nor is the question whether the Applicant, by reason of the people with whom he associates, or his criminal history, poses a threat or risk to public safety. The risk to public safety is clearly a matter which is proper to take into account in considering whether it is in the public interest to make a firearm prohibition order under ss 112E(c) or (a), but it is not the question which is asked by ss 112E(a) or (c).
Under s 112E(c), the question is whether it is in the public interest, because, and only because of the people with whom the Applicant associates, to prohibit him from acquiring, possessing, carrying or using a firearm and, as a result, subjecting him to a significant curtailment of his freedom of movement and association, and subjecting him, any person who is with him, and any place he is, or anything he has with him, to search without warrant or consent.
In determining whether it is in the public interest to make a firearm prohibition order under s 112E(c), consistently with the principles relevant to assessing public interest identified earlier, the following factual matters by which the discretionary value judgment must be considered are:
(a) whether the Applicant poses a risk to public safety;
(b) the nature of any risk the Applicant poses to public safety;
(c) the level of risk the Applicant poses;
(d)the connection between the risk the Applicant poses to public safety and the people with whom he associates;
(e)the extent to which the Applicant’s criminal history bears on the assessment of the connection between the risk he poses to public safety and the people with whom he associates;
(f)the connection between the risk the Applicant poses to public safety because, and only because, of the people with whom he associates and the acquisition, possession, carrying or use of firearms or firearm related items by him;
(g)the extent to which that risk would be abated by prohibiting the Applicant from acquiring, possessing, carrying or using firearms or firearm related items; and
(h)the proportionality between the prohibition on acquiring, possessing, carrying or using a firearm or firearm related item, the extent to which the risk would be abated by the making of an order and the curtailment of rights which flow from the making of an order.
In determining whether it is in the public interest to make a firearm prohibition order under s 112E(a), consistently with public interest principles identified earlier, the following factual matters by which the discretionary value judgment must be considered are:
(a) whether the Applicant poses a risk to public safety;
(b) the nature of any risk the Applicant poses to public safety;
(c) the level of risk the Applicant poses;
(d)the connection between the risk the Applicant poses to public safety and his criminal convictions;
(e)the extent to which the Applicant’s connection with the Rebels bears on the assessment of the risk he poses to public safety by reason of his criminal history;
(f)the connection between the risk the Applicant poses to public safety because, and only because, of his criminal history and the acquisition, possession, carrying or use of firearms or firearm related items by him;
(g)the extent to which that risk would be abated by prohibiting the Applicant from acquiring, possessing, carrying or using firearms or firearm related items; and
(h)the proportionality between the prohibition on acquiring, possessing, carrying or using a firearm or firearm related item, the extent to which the risk would be abated by the making of an order and the curtailment of rights which flow from the making of an order.[42]
[42]Ibid [103]-[109] (emphasis added).
Her Honour then set out her conclusion on CW’s application for review. She began by reiterating that she was satisfied that his membership of the Rebels, his association with other members of the Rebels and his adherence to their code of conduct did pose a risk to public safety. She continued:
However, I am not satisfied on the evidence that the risk to the public safety the Applicant poses is connected to the acquisition, possession, carrying or use of a firearm or firearm-related item by him.
A firearm prohibition order is limited to prohibiting the individual who is the subject of the order from acquiring, possessing or using a firearm or firearm related item. It was part of the Respondent’s case, and which I accept, that a person with the power and authority of the Applicant in the Rebels, is able and likely to distance himself from any direct involvement in any criminal activity, including the possession or use of firearms. Making the Applicant the subject of a firearm prohibition order will not prevent him from directing, or sanctioning the acquisition, possession, carrying or use of firearms or firearm related items by other members of the Rebels.
The evidence does not establish that the risk to public safety the Applicant poses would be abated by prohibiting him from acquiring or possessing, carrying or using any firearm or firearm related item. There is no evidence of a nexus between the acquisition, possession, carrying or use of a firearm or firearm related item by the Applicant and the threat or risk to public safety posed by him, by reason only of the people with whom he associates.[43]
[43]Ibid [111]–[113].
Her Honour then turned to consider s 112E(a). For that purpose, her Honour said, she made the same findings in relation to the nature and level of risk which CW posed to public safety. She continued:
The Applicant’s criminal history is significant and is properly to be regarded as more serious because of its, and his, association with the Rebels. By contrast to the obvious and direct link between the risk to public safety and the Applicant’s association with the lawless activities of Rebels, the connection between the risk to public safety and the Applicant’s criminal history, even when viewed through the prism of his association with the Rebels, is not strong.
More significantly, however, the Respondent has not established a connection or nexus between the risk to public safety by reason only of the Applicant’s criminal history and the acquisition, possession, carrying or use of firearms or firearm related items by him. The evidence does not support the conclusion that any risk to public safety the Applicant poses by reason of his criminal history would be abated by prohibiting him from acquiring, possessing, carrying or using firearms or firearm related items.
There is no evidence of a nexus between the acquisition, possession, carrying or use of a firearm or firearm related item by the Applicant and the threat or risk to public safety posed by him, by reason only of his criminal history.[44]
[44]Ibid [116]–[118].
For those reasons, her Honour said, she was not satisfied it was in the public interest under either ss 112E(c) or (a) to subject CW to a prohibition order.
Appeal submissions
The proposed grounds of appeal fell into two broad groups. The first set of grounds contended that her Honour had misdirected herself (or taken into account irrelevant considerations) by introducing the following extraneous matters:
(a)the need to show a ‘nexus’ between the acquisition, possession or use of a firearm by CW and the risk to public safety which (as her Honour accepted) he represented by reason of the people with whom he associated and/or by reason of his criminal history; and
(b)the need to show that any risk to public safety which CW represented by reason of his associations and/or his criminal history would be ‘abated’ by the making of a prohibition order.
The second group of grounds contended that her Honour had arrived at conclusions on the review application which were not reasonably open on the evidence before her.
As to the misdirection grounds, the Chief Commissioner submitted that to prove a ‘nexus’ of the kind postulated would seemingly require evidence of prior firearms-related conduct on the part of the person under consideration for a prohibition order. It was pointed out that such a requirement was directly contrary to the express statement in s 112D(3), that an order can be made in relation to a person who has ‘never acquired, possessed, carried or used’ a firearm.
Central to the Chief Commissioner’s submissions was the following proposition:
[T]he legislative intent was to use powers to prevent firearm-related offences proactively. There is no indication on the face of the legislation that it requires a trigger of previous proven behaviour.
It followed that there was no necessity to identify any existing risk, or any link between an existing risk and the possession of firearms by CW, or that the making of the order would ‘abate’ any such risk.
In the alternative, the Chief Commissioner submitted, it was not reasonably open to her Honour, in view of the factual findings she had made, to fail to be satisfied that it was in the public interest to make a prohibition order against CW. Particular attention was drawn to her Honour’s finding that CW posed a continuing threat or risk to public safety by reason of his continuing identification, and association, with the Rebels. That finding having been made, it was submitted, it must inevitably follow that the public interest would be served by prohibiting CW from acquiring, possessing or using a firearm.
The submission for CW was that her Honour’s analysis disclosed no error of interpretation or application. Consideration of the public interest required, it was submitted, a consideration of the utility of making a prohibition order, particularly given its capacity to impinge significantly on the rights and liberties of the individual. It followed that the decision-maker must consider whether there was
any nexus or connection between the risk to public safety posed by the individual, because of that individual’s criminal history, behaviour, the people with whom the individual associates or known information, and the acquisition, possession, carriage and use of firearms by the individual. If there is no such nexus or connection, there can be no basis for making an order under s 112D …
It was also necessary, it was submitted, for the decision-maker to consider whether the making of an order
would abate any risk which the individual may pose to public safety with respect to the acquisition, possession, carriage and use of firearms by the individual. In simple terms, would such an order against an individual make any difference to their risk of firearm-related offending?[45]
[45]Emphasis in original.
Consideration
The power to make a prohibition order is enlivened if, and only if, the decision-maker arrives at a state of satisfaction that it is in the public interest to do so for one or more of the reasons set out in s 112E. The phrase ‘in the public interest’ is, potentially, of very wide scope. The content to be given to it will vary with the statutory context.[46] It was common ground on the hearing of this application that the public interest to which these provisions were directed was the public interest in keeping the community safe from firearms-related violence. This is, in other words, a power conferred — and exercisable — for the promotion and maintenance of ‘public safety and peace’.[47]
[46]See O’Sullivan v Farrer (1989) 168 CLR 210, 216.
[47]Firearms Act s 1(a).
The provisions enable the Chief Commissioner to prohibit a person from acquiring, possessing, carrying or using a firearm. They confer search and seizure powers intended to facilitate enforcement of the prohibition.[48] The risk to which the provisions are directed is that the person will come into possession (broadly defined) of a firearm in circumstances where the firearm may be used to endanger the peace and safety of the public. The risk is not confined to that person’s possible use of the firearm.
[48]Ibid ss 112B, 112Q, 112 R, 112S.
As the provisions make clear, an affirmative conclusion on risk may be reached even though the person has never previously acquired, possessed or used a gun.[49] The antecedents of the person and of his or her associates bear on both the risk that the person may come into possession of a firearm and the risk that the firearm will be used illicitly. There is an obvious interplay between these risks. For example, there may be a very low risk that the person will come into possession of a firearm but, by reason of their antecedents or associates, a very high risk that if that occurs the firearm will be connected to illegal activity.
[49]Ibid s 112D(3).
Similarly, the fact that the person’s associates use firearms may increase the risk of the individual coming into possession of a firearm. A person with no history of using a firearm may agree, or be prevailed upon, to conceal a weapon on behalf of an associate to avoid detection. Concealing a weapon may facilitate the use of that firearm by the associate at some later time with a consequent risk to public safety.
It follows — as counsel for the Chief Commissioner accepted — that whether there is a basis for the exercise of the power to make a prohibition order will depend on an assessment of risk. Ordinarily, a conclusion that it was in the public interest to make an order would require the decision-maker to be satisfied that subjecting the person to an order was likely to mitigate a risk to public safety which would exist, or would be likely to exist, if the order were not made. The converse, as counsel for the Chief Commissioner accepted, is that if the making of the order would have no impact on public safety, it could not be said to be in the public interest to make it.
Risk assessment is, by definition, imprecise and uncertain. It involves a judgment about the likely course of future events, on the basis of information about past events and about the individuals involved. It is a judgment informed by experience. There is, unavoidably, an element of speculation or guesswork. In this particular context, a comparative risk assessment is required. That is, the decision-maker is required to envisage, and compare, the risk to public safety under two future scenarios, one in which the person is subject to a prohibition order, the other in which no order is made.
The submissions for CW accepted — indeed, asserted — that the exercise of the power rested on a risk assessment of this kind. But those submissions would confine the scope of the assessment to deciding whether the individual posed a risk to public safety because of his possession or use of firearms, or whether the making of the order would ‘abate’ that individual’s risk of firearm-related offending.
There is no warrant in the provisions for confining the risk assessment in that way. It may be that, as at the date of the decision, the particular individual under consideration presents no immediate risk to public safety. Precisely as contemplated by s 112D(3), he may never have possessed a firearm in his life. None of that stands in the way of the decision-maker concluding that his coming into possession of a firearm in the future would be likely to create a risk to public safety, whether because of his criminal history (s 112E(a)) or because of the activities of those with whom he associates (s 112E(c)).
On this analysis, no question of ‘abatement’ of an immediate firearm-related risk would arise. Ex hypothesi, there is no present or immediate risk of that kind which needs to be abated. Rather, there may be an apprehension of future risk being created by the person’s coming into possession of a firearm, or being at premises where weapons are stored. The absence of a current connection, or nexus, between a risk to public safety and the person’s possession of firearms does not render the provisions inapplicable.
What is required, in our view, is an assessment of whether the individual is likely to come into possession of a firearm and of whether that future possession of a weapon (should it occur) is likely to create or aggravate a risk to public safety, such that the making of a prohibition order could be said meaningfully to moderate, abate, or eliminate that risk. It must be possible to say that, in the absence of an order, such a risk is likely to materialise ‘because of’ one or more of the matters listed in s 112E.
As can be seen from the reasons set out above, her Honour did not decide the application on the basis of a finding that there was no prospect that CW might, in the future, come into possession of a firearm. On the evidence, such a finding would not have been open in any event. Although CW’s past antisocial behaviour has not been associated with him possessing or using a firearm himself, he clearly moves in an environment in which there is a very high risk of illegal firearm use, and a high risk of circulation of firearms amongst associates. Rather, her Honour concluded that there was no present or immediate risk of CW coming into possession of a firearm for his own use.
It follows, in our respectful view, that her Honour misdirected herself by focusing upon the risk to public safety that CW posed as an individual and requiring proof of a connection between that risk and ‘the acquisition, possession, carrying or use of a firearm or firearm-related item by him’.[50] In the same way, it was a misdirection to ask whether the risk which CW posed as an individual would be ‘abated’ by prohibiting him from acquiring, possessing, carrying or using firearms. Instead, the question to be addressed was whether banning CW from having or using weapons was likely to moderate or eliminate a risk to public safety — whether posed by CW or his associates or any other person — being a risk which would be likely to arise in the absence of the order.
[50]Decision [111].
The connection required was between CW’s future possession of a weapon and an increased risk to public safety. Given the Chief Commissioner’s reliance on s 112E(c), that connection was capable of being demonstrated by the propensity to violence of those with whom CW associates. A consequence of CW acquiring, possessing, carrying or using a firearm would be to place a firearm in the ambit of dangerous people, with the obvious risk that the firearm might become available for use by members of that group (regardless of any direction by CW permitting, or prohibiting, that use). As already noted, the risk to which the provisions are directed is not confined to that arising if a person acquires or possesses a firearm for his or her own use. It extends — at least — to a circumstance where a person might be persuaded to acquire, store, or conceal a firearm to be used by associates: it also extends to a circumstance where the possession of a firearm by an individual may facilitate its use by associates even where that individual may not countenance that use or where that individual merely knows of and acquiesces in that use.
The Act, and orders made under the Act, do not seek to declare a club, including an OMCG, as a criminal organisation, nor to prohibit the free association of members of an OMCG. Nor does our construction of the Act produce that effect. The Act does, however, direct attention to risks arising by virtue of the people with whom an individual associates. In doing so, the Act recognises that a risk to public safety and peace may come not from the individual to whom the prohibition order is directed but from the individual’s associates. This recognition is confirmed by the terms of s 112D(3), mentioned above, expressly permitting an order to be made even though the individual who will be subject to the order has never possessed or used a firearm.
Conclusion
For the reasons we have given, her Honour misdirected herself as to what the provisions required before an order could be made. That was an error of law, which means that the appeal must be allowed. We turn to consider what order this Court should make in place of the Tribunal’s order.[51]
[51]Victorian Civil and Administrative Tribunal Act 1998 s 148(7).
In our view, it is neither necessary nor appropriate to remit the matter to the Tribunal. In view of the factual findings which her Honour made, this Court can and should proceed to decide the review application for itself.
In the present case, the findings of fact were very much stronger than the ‘no present risk’ example discussed earlier. Her Honour made what can only be viewed as extraordinarily strong findings about the existing risks to public safety posed both by CW and by the Rebels. As already noted, her Honour concluded that CW
poses a continuing threat or risk to public safety by reason of his long term and continuing identification with the Rebels, their values, and his continuing association with fellow members of the Rebels.
The submission for the Chief Commissioner was that, once a finding in those terms had been made, it followed almost inevitably that the risk to public safety which CW and his associates represent would be heightened if he came into possession of a weapon and/or was allowed to be present at premises where weapons were stored. That submission has particular force, in our view, given that the finding was not a finding about CW alone but about him as part of an association of (dangerous) people, over whom he continued to hold great authority.
For the reasons we have given, the assessment of future risk properly included consideration of the risk constituted by the past history of the Rebels and their propensity for firearm-related violence, and CW’s knowledge of and acquiescence in their criminal conduct involving the use of firearms. On her Honour’s findings, CW’s associates are dangerous and violent. They are
prominent in many aspects of serious and organised criminal activity, in particular the illicit drug trade, drive-by shootings and offences relating to possession of firearms and acts of violence including serious, even fatal assaults.[52]
[52]Decision [72].
In other words, CW’s association with the Rebels is necessarily characterised by a risk of firearm-related violence and, hence, a risk to public safety. Given CW’s close association with the Rebels and his continuing authority over them, it is plainly in the public interest that he not be allowed to possess, carry, or use a firearm. The making of the order will meaningfully moderate a risk which would otherwise be likely to exist should he come into possession of a firearm. No other conclusion was reasonably open on the factual findings which her Honour made.
Finally, we turn to an issue which was debated both before the Tribunal and before this Court, namely, the adverse impact of a prohibition order on CW himself. Evidence was led on behalf of CW to demonstrate what her Honour described as the ‘inconveniences, hardships and restrictions on daily life activities’[53] said to have resulted from the imposition of the prohibition order. Her Honour made clear that her consideration of what was in the public interest did not include CW’s individual interests. Nevertheless, her Honour said:
[T]he restrictions he has faced are illustrative of the sorts of restrictions on fundamental rights and freedoms people subject to a firearm prohibition order are likely to experience.[54]
[53]Ibid [37].
[54]Ibid [38].
Her Honour expressed her view of the public interest in these terms:
That is, although it is the interests of the public, and not the private interests of the individual against whom a firearm prohibition order has been made, which must be considered, the public interest, in my view, is not limited to protecting the public against the escalating and changing nature of firearm-related violence and other firearm-related crimes. The public interest includes subjecting people to no greater restriction on their freedom of movement and association and from search without warrant or consent than is reasonably necessary to give efficacy to protecting the public from firearm-related crime which might occur if that individual were not prohibited from acquiring, possessing, carrying or using a firearm.[55]
[55]Ibid [31].
We respectfully agree. It follows from what we have said about the basis for the making of the order that the restrictions to which CW will be subject are no greater than is reasonably necessary to advance the legislative objective of protecting the public against the risk of firearm-related crime.
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