Director of Public Prosecutions v Grant (a pseudonym)
[2024] VCC 2122
•19 December 2024
| IN THE COUNTY COURT OF VICTORIA
| Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EVAN GRANT (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MOGLIA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2024, 12 November 2024, 02 December 2024 |
DATE OF RULING: | 19 December 2024 |
CASE MAY BE CITED AS: | DPP v Grant (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2122 |
REASONS FOR RULING
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Subject:Ruling - Admissibility – Improper Search and Seizure – Firearm Prohibition Order
Catchwords: ‘Reasonable Required to Determine’ and Reasonable Suspicion – Police State of Mind – Impropriety
Legislation Cited: Evidence Act 2008, s138; Firearms Act 1996, s112Q and Part 4A; Charter of Human Rights and Responsibilities.
Cases Cited: R v Ioannidis [2015] 124 SASR 86
Ruling:Lawful entry and search under s112Q does not require police to hold a particular state of mind or to possess particular information about the person subject to FPO.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | M. Fisher | Office of Public Prosecutions |
For the Accused | Dr M. Gumbleton | Fayman Lawyers |
HIS HONOUR:
1In this case the accused Evan Grant[1] is charged with trafficking in a large commercial quantity of ketamine and related lesser offences based on drugs and other items found at his premises and in his vehicles on 10 January 2023, as set out in the Prosecution Opening dated 8 November 2024.
[1] A pseudonym.
2Police found those items when they entered and searched the Accused's home and vehicles during an exercise of powers granted them under Part 4A of the Firearms Act 1996 (‘The Act’), in particular, s112Q that permits police to search the property of a person against whom a Firearm Prohibition Order (FPO) was then in force.
3For the purposes of pre-trial argument the parties accepted that an FPO was made against the accused, was served on him on 4 April 2019 and that it had an operational period of 10 years from that date.
4The Accused disputes the lawfulness of the police entry and search and, therefore, under s138 of the Evidence Act 2008, seeks to exclude from his trial the evidence of any items found. A trial date has not yet been set.
5During an advance pre-trial hearing on 11 and 12 November 2024, the Accused proposed to cross-examine police officers involved in the making of the FPO and in the conduct of the search.
6While he proposed that the court could determine any questions of public interest immunity and/or any other legal issues as they arose, including as they relate to the validity, nature and scope of the relevant Part 4A powers, he accepted that the court may wish to determine the latter first. The prosecution expressed no preference about the order of things.
7It seemed to the court that on at least one interpretation of s112Q and related provisions, the need for any or as much cross-examination, or the determination of any Public Interest Immunity questions may be avoided.
8Accordingly the matter was adjourned to 2 December 2024 to allow parties time to prepare submissions on the nature and scope of the applicable Part 4A powers.
9The accused provided a written outline of submissions dated 22 November 2024 as did the prosecutor dated 29 November 2024.
10Ultimately in respect of this pre-trial issue, the accused did not challenge the validity of the conferral of powers on the Chief Commissioner to make FPOs or of the making of the FPO in this case.
11Rather, he challenged the scope of the power in s112Q to enter and search. He contended that in order for an entry and search to be 'reasonably required to determine' whether a person who is the subject of an FPO was in breach of it 'something more' than the mere existence of an FPO is necessary, albeit less than something that would give rise to a reasonable suspicion that an offence had or was being committed.
12The prosecutor responded that s112Q should be constructed broadly and that the police entry and search is not rendered unlawful by the absence of that 'something more'.
13The question I propose to determine in this ruling is whether in s112Q does the prerequisite that a search be 'reasonably required to determine' whether a person on an FPO possesses a firearm or related item necessitate the possession by police of information relating to the actual possession of such items such that the absence of such information renders any search unlawful.
14Section 112Q(1) provides under the heading 'Search of premises, vehicles, vessels or aircraft without warrant or consent':
A police officer without warrant or consent may exercise any of the powers under sub-s2 if the exercise of the power is reasonably required to determine whether an individual to whom a firearm prohibition applies has acquired, possesses or is carrying or using a firearm or firearm related item in contravention of s112B or another provision of this Act.
15The Accused submitted that the proper construction of s112Q relied upon an appreciation that an FPO is made without the name of the person making it, the reasons for which it was made, that it is unable to be reviewed at least for five years, and then only once within the full 10 years of the order, that it results in significant restrictions on a person's enjoyment of fundamental rights including privacy and the enjoyment of private property.
16I note that much might be said about whether or not the conferral of such powers in those terms offends against principles commonly referred to under the rule of law.
17The decision to make an FPO, according to the Part 4A provisions are made relatively anonymously and without realistic capacity to review. Indeed reasons are not required to be provided, not even during such a review, those review rights being conferred on the Victorian Civil And Administrative Tribunal.
18The parties both agreed that it is not for me to determine whether such provisions are repugnant to or consistent with the rule of law and I do not do so.
19While the accused did not challenge the validity of the orders or the conferral of power upon the Chief Commissioner or their delegates, he submitted that in construing the powers that flow from such an order made in those circumstances it ought be a narrow construction. That is, that there should be limits placed on the entry and search powers or the triggers for valid entry and search because of the way in which an FPO is granted.
20In doing so, the accused relied on comments or the decision by Peek J in R v Ioannidis [2015] 124 SASR 86, that police needed something more than the mere existence of an order, in that case an equivalent to an FPO, before the entry and search power could be exercised by police.
21Whilst in the minority, it was submitted that even Kourakis CJ recognised that the requirement for reasonableness meant something, and commented that entry and search could not and should not be exercised for example repeatedly or in a manner that would amount to harassment.
22It was submitted by the accused that the words 'reasonably required' must mean that there must be some information to hand, albeit short of information that would result in a reasonable suspicion of an offence relating to the FPO and its application to a given person, and that that information ought address the subject matter of the possession of a firearm or a firearm related item before the powers in s112Q should be seen to be warranted.
23The prosecution submitted that such a requirement was not apparent in the words of the Act; that when one looks at the wording of s112Q and has regard to the objectives of the Act, the high risk posed to the community by such persons having such a firearm; that such persons have been identified as not being permitted to have contact with firearms in the public interest. This should result in an interpretation of s112Q that provides a broad power for police to engage in entry and search in order to ensure that firearms or related items are not in fact in possession.
24In considering the dispute between the parties on this point I have had regard to a note made by Kourakis CJ at paragraph 16 in Ioannidis. That is:
'The very reasons for imposing FPOs suggests that there is a risk that those persons on whom they are imposed may have a tendency to breach them, and that if they are so minded they are likely to take steps to avoid detection.'
25In having regard to the text of the Act in s112Q, the context in which that section falls, namely a set of provisions aimed at reducing the significant harm caused to the community by the possession of firearms and their use, and the purposes of the Act along similar lines, I recognise and acknowledge that the powers in s112Q do impinge on fundamental rights.
26I have had regard to the fact that s112 must be construed according to the principle of legality, that is, that any provision that has the effect of reducing the enjoyment of fundamental rights must state that that effect is intended by Parliament in clear and unequivocal terms. Relatedly, in Victoria in particular, it is to be noted that s32 of the Charter of Human Rights and Responsibilities requires that statutory construction occur having regard to those fundamental rights to which the principle of legality refers.
27In having regard to the text in that context and with those considerations, one concern that arises with the contention that s112Q should be interpreted in a way that imposes a requirement of 'something more' than the mere existence of an FPO but short of reasonable suspicion, is whether or not there is in fact a meaningful threshold beyond nothing, but short of reasonable basis for suspicion, that could be properly interpreted in that section.
28The Accused submitted that there should be information relating to firearms that necessitated a search in order to determine whether or not there was the relevant possession or use or other offence against the Act. Just how in any meaningful way such a requirement would differ from information that gives rise to a reasonable basis for suspicion remains unclear to me.
29Turning to the matters by which the words 'reasonably required' should be determined, the Act does not expressly limit the matters which should be taken into account. It has been observed, including in the South Australian case Ioannidis, that they might include the circumstances of the search, the timing, the day, whether it's repeated, whether it might amount to harassment.
30I accept that the phrase may require a consideration of the state of mind of police or the state of information in their possession when they conduct a relevant search. For example, the state of mind of police may be relevant if a search was shown to have been conducted for an improper purpose such as to engage in harassment.
31Similarly information in police possession may be relevant if it established unequivocally for example that a person was no longer capable of possessing any relevant item. Such circumstances may mean that a search could not be reasonably required.
32I do not accept, however, that the provision read in context requires police to have a state of mind or a state of information directed to the likelihood of the person possessing a firearm or related item. Consistent with the observations of Kourakis CJ about offenders who tend to possess firearms and to conceal it if they do so, it may be considered highly unlikely that police would come into any information about such possession other than by conducting a s112Q search.
33I accept that the kind of offenders to whom the Chief Justice referred are precisely the kind of offenders to which Part 4A are directed. The possibility that an FPO may be made against a person who is not such an offender about whom relevant information may well come to police attention is not to point.
34The proposed narrow construction of s112Q for which the accused contends considered in this light would have the effect of hampering the operation of Part 4A in relation to the very offenders at whom it is directed. Such a construction I am satisfied could not have been intended.
35For those reasons I find that the proper construction of s112Q is such that no particular state of mind with respect to a person subject of an FPO need be held by police in exercise of the powers under s112Q. Nor does the provision necessitate the possession of any particular information about said person such that it is necessary before a search under s112Q may be lawfully conducted.
36In those circumstances having found that to be the proper construction of the provision in question, I will hear from the parties whether there is any basis for the hearing of evidence from any witnesses as were proposed in the pre-trial application.
And I so rule.
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