Russo v The Chief Commissioner of Police
[2024] VSC 179
•18 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 06027
BETWEEN:
| ALFREDO RUSSO | Applicant |
| v | |
| THE CHIEF COMMISSIONER OF POLICE | Respondent |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 April 2024 |
DATE OF JUDGMENT: | 18 April 2024 |
CASE MAY BE CITED AS: | Russo v The Chief Commissioner of Police |
MEDIUM NEUTRAL CITATION: | [2024] VSC 179 |
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FIREARMS REGULATION — Applicant subject to a final apprehended domestic violence order (‘ADVO’) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) and as such deemed a prohibited person for the purposes of the Firearms Act 1996 (Vic) — Application to be deemed not to be a prohibited person pursuant to s 189 of the Firearms Act 1996 (Vic) — Application opposed by the applicant’s brother, the protected person under the ADVO — Application not opposed by the Chief Commissioner of Police — Whether the applicant has legitimate reasons to possess firearms — Whether there is a real risk that declaring the applicant a non-prohibited person will endanger the life of the protected person under the ADVO in the context of a dispute within the family regarding the administration of a deceased estate — Pickford v Chief Commissioner of Police [2002] VSC 435, Clark v Chief Commissioner of Police [2010] VSC 144, Swebbs v Magistrates’ Court of Victoria [2017] VSC 229 and SBW v Chief Commissioner of Police [2023] VSC 447 referred to — Application granted with conditions.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms S Parsons, solicitor | Doogue & George Pty Ltd |
| For the Respondent | Ms D Gaspersz, solicitor | Victoria Police |
| Mr Edward Russo in person (via audio-visual link) |
HER HONOUR:
Introduction and background
The applicant, Mr Alfredo Russo (‘Fred’) is a small business owner who lives on the outskirts of Katunga, a town with about 1,000 residents north of Shepparton not far from the Murray River. He is 44 years of age, and is married with two teenage children. Before Fred’s firearms licence was suspended on or about 22 August 2023, he held a firearms licence for 26 years, and possessed a number of firearms for recreational and pest control purposes.
Fred has five older brothers. Following the death of his mother in 2022, the relationships between the brothers fractured, at least in part as a consequence of disputes over the administration of their mother’s (modest) estate (‘estate’). Fred is one of the co-executors of the estate, but cannot agree with his co-executor, another brother, such that the administration of the estate is deadlocked, and the six brothers have formed into two warring camps.
It is in this context that certain events occurred which culminated in Fred bringing this proceeding, which is an application under s 189 of the Firearms Act 1996 (Vic) (‘Act’) to be deemed to be a non-prohibited person within the meaning of the Act.
Section 5(1) of the Act provides that it is an offence for a prohibited person to possess, carry or use a firearm, an offence which carries a penalty of up to 10 years imprisonment. A ‘prohibited person’ includes a person who is subject to a final order under the Family Violence Protection Act 2008 (Vic) or its interstate equivalents.[1] Fred is a prohibited person, because on 24 October 2023, Fred consented (without making any admissions) to a final Apprehended Domestic Violence Order (‘ADVO’) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) at the Local Court of New South Wales (‘NSW’) at Finley, a town on the other side of the Murray River. The ADVO does not, following negotiations between Fred’s solicitors and the NSW police, include any prohibition on Fred possessing or using firearms.[2]
[1]Firearms Act 1996 (Vic) s 3(1).
[2]If the ADVO included such a condition, Fred would not be permitted to bring this application until not before five years after the ADVO expires. The ADVO expires on 23 October 2025.
The ADVO provides that Fred must not assault, threaten, stalk, harass or intimidate his older brother, Mr Edward Russo (‘Edward’), or anyone Edward has a domestic relationship with, or intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of Edward.
Edward is 10 years older than Fred. He lives in the township area of Katunga, and operates a retail business in Cobram with his wife. He is a member of the camp of brothers opposed to Fred in the family dispute referred to in paragraph 2 of these reasons.
The ADVO followed the making of a provisional order on 21 August 2023 (‘interim order’), which was authorised by a senior police officer of the Tocumwal police station in NSW. The interim order was made after Edward made a report to the Barooga police station following an alleged incident during a football match in Jerilderie, NSW on 20 August 2023 (‘altercation’). The interim order provided, among other things, as follows:
You must not possess any firearms or prohibited weapons.
The following narrative of the altercation was recorded by the police officer in a statement accompanying the interim order:
The DEFENDANT in this matter is Alfredo RUSSO, also known as Fred RUSSO
The Person in Need of Protection (PINOP) in this matter is Edward RUSSO.
The DEFENDANT and PINOP are in a domestic relationship by virtue of being biological brothers.
There has been a long standing family feud occurring within their family since the passing of their mother some time ago which is in relation to the DEFENDANT being named and executor of her will and the manner in which the will was executed.
About 1:00pm on Sunday the 20th of August 2023 the DEFENDANT and the PINOP were both at Jerilderie Recreation Reserve where the Picola Football League Preliminary Final was occurring. Both the DEFENDANT and the PINOP were in attendance in relation to opposing sides.
The PINOP was seated within his motor vehicle parked along the perimeter of the ground when around the 3 quarter time break the PINOP and his wife have exited the vehicle with the intent of going to the canteen.
As the PINOP has exited the vehicle the DEFENDANT walked passed the rear of the vehicle and has said “what is your problem” to the PINOP who had not notice the DEFENDANT prior to this.
The DEFENDANT has then pushed the PINOP with both hands causing the PINOP to fall back slightly into his own vehicle, with the DEFENDANT grabbing the PINOP around the back of the neck in a headlock like motion.
The DEFENDANT and the PINOP engaged in a physical altercation between themselves with the PINOP attempting to push the DEFENDANT away from himself.
The wives of the DEFENDANT and PINOP have engaged in a verbal argument with the DEFENDANT letting go of the PINOP and joining the argument.
The four parties have continued to verbally argue before they have separated and gone separate ways with the PINOP leaving the location entirely.
On the 21st of August 2023 the PINOP attended Barooga Police Station where he provided a Domestic Violence Evidence in Chief Statement to police.
As part of this statement the PINOP outlined a previous incident which occurred in Melbourne Victoria approximately 12 months prior to this incident where the DEFENDANT has made verbal threats to the PINOP and other members of their family at their uncle's wake. The PINOP stated that the DEFENDANT threatened him by say “I’ll smash your head in”. The PINOP further stated that this was unprovoked and that he had not spoken to the DEFENDANT prior to him making that comment.
The police statement was followed by the following observations made by the police officer:
Fears held by PINOP: That the DEFENDANT is 10 years younger than him and that he can no longer defend himself as he used to be able to. The PINOP also expressed concerns in relation to the threatening behaviour of the DEFENDANT and is concerned as the DEFENDANT is a licensed firearms holder in Victoria where both parties reside.
Fears held by Police: Police fear that whilst the incidents are separated by a period of 12 month that there appears to be an escalation in the behaviour exhibited by the DEFENDANT who had previously verbally threatened the PINOP and has since escalated to assaults of the PINOP. Police fear that this may lead to further assaults by the DEFENDANT upon the PINOP.
On 21 August 2023, the following firearms were removed from Fred’s property by the police:
(a) Browning ‘SA’ 12 gauge;
(b) Hollis I & Sons ‘The Century’ 12 gauge;
(c) Browning ‘Sport 1’ 12 gauge;
(d) Marlin ‘XT-17’ 17 HMR;
(e) Remington ‘783’ 308 WIN; and
(f) Norica ‘Dragon’ 22 Air.
Apparently the first three firearms listed above are used for clay shooting purposes, and the latter three for hunting and pest control.
On 22 August 2023, a police officer in Numurkah, Victoria, issued a ‘Notice of Suspension and Proposal to Cancel’ in accordance with s 47(1) of the Act (‘suspension notice’). Section 47(1) of the Act provides as follows:
If the Chief Commissioner is satisfied that there may be grounds for cancelling a licence under section 49 the Chief Commissioner may suspend the licence.[3]
[3]The Chief Commissioner may, under s 176 of the Act, delegate his powers and duties under s 47 of the Act.
The ground relied upon in the suspension notice was the making of the interim order.
On 23 November 2023, Victoria Police wrote to Fred, as follows:
On 28 August 2023 you were served with a Notice of Suspension pursuant to section 47 of the Firearms Act 1996 (the Act) and were invited to make a written submission within 28 days. As of 23 November 2023 your licence is still suspended.
However, Victoria Police records indicate that on 24 October 2023 at the Finley Local Court of NSW you were the defendant in a Final Intervention Order.
Section 3(1) of the Firearms Act 1996 defines a "prohibited person" as a person who is subject to--
(c)(i)a final order under the Family Violence Protection Act 2008 that does not include conditions cancelling or revoking a licence or permit authority under the Firearms Act 1996, or an order of a corresponding nature made in another State or Territory; or
(c)(ib)a final order under the Personal Safety Intervention Orders Act 2010 that does not cancel or suspend a licence, permit or authority under the Firearms Act 1996, or an order of a corresponding nature made in another State or Territory;
and not more than 5 years have expired since the person was subject to such an order.
The Order issued on the above date will expire on 23 October 2025. Pursuant to section 3(1) of the Act you are now and will remain a prohibited person until 23 October 2030.
Section 47A of the Act states that on becoming aware that the holder of the licence under this Part is a prohibited person the Chief Commissioner must suspend the licence. Therefore as you are a prohibited person your Category A & B Longarm Licence No: 415-771-70B will remain suspended.
Pursuant to section 49(4) of the Act, unless you make application under section 189(1) of the Act to be deemed not to be a prohibited person within three months of this suspension, your licence will be cancelled.
In addition to your application to be declared a non-prohibited person you will also need to make a written submission addressing the concerns held by Police that resulted in your licence being suspended on 28 August 2023 by Sergeant McDonald of Numurkah Police.
This suspension will remain in force until the application is finally determined or the cancellation takes effect.
A successful section 189(1) application granted by the court will enable a further assessment of your suitability by Licensing and Regulation Division.
(emphasis added).
The application and the evidence
This proceeding was issued on 15 December 2023. However, no supporting material was filed until 3 April 2024, when Fred’s solicitors filed written submissions and some supporting documents. On 5 April 2024, Edward, who is not a party to the proceeding, but has the right to be heard by reason of his status as the person protected by the ADVO, emailed an affidavit to the Court. On 8 April 2024, Fred filed an affidavit in support of his application and in response to Edward’s affidavit.
At the hearing on 9 April 2024, Fred attended by way of audio-visual link, and was represented in Court by his solicitors. Also in attendance was a senior lawyer from the Legal Services Department of Victoria Police, Ms Daniella Gaspersz. Previously, on 25 March 2024, Ms Gaspersz wrote to Fred’s solicitors, as follows:
Good afternoon,
I am instructed to inform you that Victoria Police do not oppose your client’s application.
We have spoken to the protected person in the intervention order, Edward Russo, who confirmed that he is opposing your client’s application. I have provided the protected person with a copy of the Originating Motion and he is aware that he can make his views known to the court.
We understand that your client’s application is currently listed in the Supreme Court on 9 April 2024 at 10am, and unless advised by the Court otherwise, I propose to attend and confirm that your client’s application is not opposed.
I have copied this email to the Associate of Associate Justice Daly.
Edward did not initially appear at the hearing of the application on 9 April 2024. Ms Gaspersz informed the Court that she had spoken to Edward and his wife by telephone, and they had informed her that they were not in a position to travel to Melbourne for the hearing, but wanted to file submissions regarding the application.
After hearing from Fred’s solicitor and from Ms Gaspersz, who reiterated that the application was not opposed by Victoria Police, I considered whether to adjourn the further hearing of the application to enable Edward to file written submissions, but was concerned that as Edward was not formally a party to the proceeding, he may not have been aware of the ability to join the hearing remotely. The matter was stood down to ascertain Edward’s availability, and he then joined the hearing by way of audio-visual link. After Edward provided further information about the dispute within the family about the estate, and explained the reasons for his opposition to Fred’s application, I took Edward through Fred’s affidavit paragraph by paragraph, and sought his response to each of the matters referred to in those paragraphs. Following this, the matter was stood down again to enable Fred’s solicitor to take further instructions regarding the family dispute, the progress of the administration of the estate, and the nature of the firearms owned and used by Fred until their removal by the police.
Accordingly, while the process of the hearing of the application was a little disjointed, I am satisfied that all parties had an adequate opportunity to make submissions in relation to the application. While Edward was not legally represented at the hearing, he conveyed his opposition to the application being granted and his reasons for his opposition in very clear terms, and it was apparent that he understood the issues relevant to the application.
Edward’s submissions were consistent with the contents of the affidavit affirmed by him on 5 April 2024, in which he stated as follows:
I make this affidavit in objection to the Applicant's application to be a non-prohibited person.
I am the brother of the Applicant, Alfredo Russo (Fred).
Following the death of my mother two years ago, my relationship with Fred has become contentious to the point of deteriorating to beyond the point of repair.
I am also the Protected Person named under a Final Order Apprehended Domestic Violence Order made under the Crimes (Domestic and Personal Violence) Act 2007 dated 24 October 2023 and made in the Finley Local Court of New South Wales (the AVO). Fred is the Defendant named in the AVO.
The AVO remains in force until 23 October 2025.
The Incident leading to the AVO
While attending my son's football match in Jerilderie, Fred approached me and assaulted me by grabbing my neck and swinging me into a parked car.
During this assault, Fred made a number of verbal threats to cause me physical harm and also to shoot me.
Fred’s Application
In light of Fred’s threats to shoot me, clear animosity toward me and the fact that the AVO remains in force, I do not feel that he should be declared a non-prohibited person.
We currently reside within a kilometre of each other in the township of Katunga with 996 residents.
Fred is aware of the location of my home and will often drive past our home to attend local football games and training, often causing me to feel anxious.
To the best of my knowledge, Fred does not require a firearm licence to remove pests from his residence as he also resides in Katunga, nor is it a requirement of his employment.
I am fearful of Fred and believe that he poses a real and genuine risk to the safety of myself and my family.
In his affidavit affirmed on 8 April 2024, Fred deposed as follows:
On 24 October 2023, through my solicitor I consented without admissions to a Final Order - Apprehended Domestic Violence Order (“DVO”) at the Finley Local Court in New South Wales with the protected person being my brother, Edward Russo. The DVO is in place for two years from 24 October 2023, and so expires on or about 24 October 2025.
The DVO was in relation to an incident where my brother Edward Russo claims a physical and verbal altercation took place on 20 August 2023. I have never been interviewed nor charged by police in relation to my brother’s allegations.
I am aware my brother filed an affidavit objecting to my application with this Court and I have read this document. I deny ever making threats to shoot my brother and I do not remember this particular allegation forming part of his original complaint to the police. Further, I never have any need to drive past his property. It is not on the way to any of my regular destinations.
My mother passed away in 2022. I was named as executor of her will. My brother took issue with the way I undertook this role I believe this may have something to do with his attitude towards me and the subsequent DVO.
By virtue of provisions of the Family Violence Protection Act 2008 (Vic), I became a ‘prohibited person' when the DVO was made. This meant that I was not able to possess or use firearms. My firearms and related documents were seized by Police on 21 August 2023, the same day I was served with the interim DVO.
For the following reasons I believe I am eligible to apply to the Supreme Court to be deemed a non-prohibited person.
The DVO does not include a firearms condition. This was removed by agreement with NSW Police before the Final Order was made.
The DVO was the first time I have been approached by police in relation to my conduct in any way, and the first time I have been required to attend a courthouse. I do not have a criminal history, and no current charges or upcoming matters. I have never been and am not currently a named respondent on any other DVO.
As previously noted, I consented without any admissions to the DVO being made. Although I did not agree with my brother’s allegations, I was interested in finalising the matter in the most practical way. I have not breached any of the conditions of the DVO since it was made, and I am aware that I am required to comply with the conditions for a total of two years.
I have held a firearms licence for approximately 26 years. I have never had any issues with my licence.
I take my responsibilities with firearms seriously. I have always stored and used them properly. I have a genuine interest in using firearms to control pests on my rural property and occasionally euthanize cattle, and for recreational purposes as a member of the Cobram Field and Game Club (clay target shooting only). These activities are the only reason I am interested in possessing and using firearms.
I have lived in rural Victoria near the border of New South Wales all my life. I was born in Melbourne and raised in Katunga. I attended primary school at Katunga Primary School and completed secondary school at Numurkah Secondary College. After school I completed an apprenticeship at J. Furphy & Sons where I worked for a total of about 10 years as a tradesperson.
I married my wife Peta in 1995. We have two teenage children, Viv (17yo) and Bonnie (15yo). Viv has started an electrical apprenticeship and Bonnie attends the local High School. Viv holds a junior firearm permit. My other family members do not have access to firearms. All firearms have always been under my name.
My family and I have .always been involved with our local community. My wife Peta and I have volunteered with the Katunga Football Netball Club for years. I was made a life member for “exceptional” contributions in 2016. It was a real honour to be acknowledged in this way. I am currently the ‘Sponsorship Coordinator’ for the Club.
My work also has a connection to our local community. I own Numurkah Milk Supply which supplies milk and other food/drink products to retail and hospitality venues throughout the Goulburn Valley region. I also own Northern Domestic Water which delivers water to sites and people who cannot access town water. I have been running these businesses for approximately 20 years, which service our local and broader community. This work also allows me to support my family financially.
I also farm cattle outside of running my own businesses. I manage this hobby farm at my residential property with approximately 20 heads of cattle.
I believe it is appropriate and desirable that I am deemed a non-prohibited person for the purpose of possessing firearms, and that my lengthy history as a responsible firearms us [sic] and compliance with the DVO, demonstrates there is no risk in me being able to continue possessing a firearm.
It is convenient here to summarise Edward’s responses to the matters deposed to by Fred in his affidavit.
First, in response to Fred’s evidence about consenting to the ADVO without making any admissions and that he had not been charged with any offences arising out of the altercation, Edward said that he had only learned that Fred had not been charged with assault when he spoke to a police officer the day prior to the hearing of this application.
Secondly, Edward rejected Fred’s denial that he ever made threats to shoot him, saying he said did so during the altercation, in the presence of both of their wives.
Thirdly, Edward rejected Fred’s evidence that he has no need to drive past Edward’s property, saying that now the football season has started Fred goes to the football ground two to three nights per week, past the road upon which Edward lives.
Fourthly, Edward rejected Fred’s assertion that Edward’s attitude to him and his report to the police which led to the making of the interim order may have been motivated by Fred’s role as the executor of the estate and the way he undertook that role. In relation to the estate, Edward said that Fred has been told that he has lied to the whole family, and the way Fred has conducted himself has probably got something to do with the altercation. Edward then asked, rhetorically:
Why would you attack one at the football because I went there to watch my son play football and he calls me everything under the sun. He says I am going to shoot you – you and your brothers.
Fifthly, Edward accepted that Fred has no criminal history, that he has never had any issues with his firearms licence, and that Fred has not breached any of the conditions of the ADVO, but said that Fred cannot go around threatening people as he does, saying: ‘That is another problem. He goes and threatens my other two brothers and then it comes back to me and then threatens everyone.’
Sixthly, Edward rejected Fred’s evidence that he used his firearms for pest control and to occasionally euthanise cattle, saying that Fred is not a ‘big time farmer’, and that he only has a five acre property on the edge of town with only two or three head of cattle.
Seventhly, in relation to Fred’s evidence about his upbringing, education, work history, business interests and community involvement, Edward said that he could get references from others about his own success in business, saying, among other things: ‘That is correct. This is just an affidavit to make himself look good’, and further, ‘what has this got to do with the actual problem of the day?’
Finally, in response to Fred’s assertion that there was no risk associated with Fred being able to possess a firearm, Edward stated as follows:
Don’t agree with that. If he has got an intervention order, he shouldn’t have a firearm. And even the police from Finley were saying he has applied for that already has he after only 6 months? And we are one kilometre apart from each other, and he is allowed to make threats and have basically, no consequences. And we are a kilometre apart so the chance of us running into each other is very high.
I walked in front of his car back at the football there, in front of his car and he was driving and you can see how he crept up on the brakes towards me, that was the last time at the football. So he has a very strong hate for me and I feel threatened by him. Because I am older for starters, I have had a back operation and he is younger of course, he can fight me, I can’t fight anymore. I am 10 years older than him, I am 55, he is 45. He thinks he is still good. He is quite healthy still. I am not. And he is a threat to me and my other brothers as well in this case with our mother and with this estate. And he can hire all the best lawyers which he has there. All he wants. I can’t afford to do that and I am not going to do that over a simple case that he shouldn’t have a firearms licence anymore for the amount of threats he has made to me and my other brothers as well.
If you want me to get something saying how good of a person I am, I could do that as well but that is all he has done today. He has praised himself. Very cunning and very smart with his solicitor there.[4]
[4]This excerpt of Edward’s submissions has been lightly edited for clarity.
The statutory framework and relevant legal principles
Section 189 of the Act provides as follows:
Application to be deemed not to be a prohibited person
(1)A person who is a prohibited person referred to in paragraph (c)(i) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person—
(a)is deemed not to be a prohibited person by virtue of being or having been subject to a final order of a kind referred to in that subparagraph; or
(b) is so deemed for limited purposes only.
(1AA)A person who is a prohibited person referred to in paragraph (c)(ib) of the definition of prohibited person in section 3(1) may apply to the Court for a declaration that the person—
(a)is deemed not to be a prohibited person by virtue of being or having been subject to an order of a kind referred to in that paragraph; or
(b) is so deemed for limited purposes only.
Since s 189 of the Act was enacted in 1996, there have been relatively few published decisions concerning its application. In Pickford v Chief Commissioner of Police[5] (‘Pickford’), Nettle J stated as follows:
Unguided by authority, however, it appears to me that the section was to enable a person to be relieved of the consequences of being a prohibited person when, viewed objectively, the circumstances which gave rise to that status, or developments since, or both in combination, impel the conclusion that it is not appropriate or desirable that the person be afflicted with the consequences of being a prohibited person. Such guidance as is to be derived from the Parliamentary debates is at least not inconsistent with that view.
In this case there are a number of considerations which, judged according to that test, lead me to the conclusion that the applicant should be relieved of the consequences of being a prohibited person for the purposes of Division 4 of the Act. First, it appears upon the uncontradicted evidence that firearms were not involved in the circumstances which led to the making of the restraint order. Secondly, there are strong indications that the application for the restraint order was motivated, at least to a considerable extent, by collateral motives. Thirdly, the applicant's record, which has been set out above, is exemplary. Fourthly, as the evidence shows, the applicant has a genuine and not unhealthy interest in firearms and substantial legitimate reasons for wanting to hold firearms licences under the Act. Fifthly, and perhaps most importantly, the Chief Commissioner does not oppose the application or suggest in any way that it should not be allowed. I think that I am entitled to take the view, and therefore I do, that, where the Chief Commissioner of Police chooses not to appear upon an application like this, the Commissioner does not know of or consider that there may be any reason why the application should not be granted.[6]
[5][2002] VSC 435 (‘Pickford’).
[6]Ibid [6]-[7].
In Clark v Chief Commissioner of Police,[7] Osborn J granted an application under s 189 of the Act, in circumstances where the relevant restraining order was made ex-parte and was subsequently revoked after the applicant and protected person resumed their domestic relationship. His Honour stated as follows:
Any rationale for the restraining order has thus itself ceased. Further, Mr Clark has no history of gun-related or other convictions for violence or indeed other criminal conduct. Finally, the application is not opposed by the Chief Commissioner who in effect represents the public interest in this matter.[8]
[7][2010] VSC 144.
[8]Ibid [7].
In Swebbs v Magistrates’ Court of Victoria,[9] Ginnane J referred to the passage in Pickford[10] extracted above, and referred to the following matters as being potentially relevant to the exercise of the Court’s discretion under s 189 of the Act, including:
…why the intervention order was made, whether it is still required, the views of the person for whose protection it was made, the views of the police and any other matters bearing on the risks that may flow to the community from the applicant being able to possess firearms. A number of the remarks made by the Magistrate suggest that he had regard to matters that were not related to the purpose of the Family Violence Protection Act 2008.[11]
[9][2017] VSC 229.
[10][2002] VSC 435.
[11][2017] VSC 229 [13].
In SBW v Chief Commissioner of Police,[12] Richards J heard an application for judicial review from a decision of a magistrate to deem the applicant a non-prohibited person for limited purposes (see s 189(1)(b) of the Act). The Magistrate ordered that:
The Applicant is now deemed a non-prohibited person pursuant to s 189 of the Firearms Act: for the purposes of any employment, or in other circumstances considered suitable to Victoria Police Firearms Registry.
(Emphasis added).
[12][2023] VSC 447.
Her Honour found that the magistrate failed to exercise the jurisdiction conferred upon in the Magistrates’ Court[13] by s 189 of the Act. Her Honour said as follows:
[13]Section 189(3) of the Act defines ‘Court’ for the purposes of s 189. In the case of a person who was made the subject of a final order under the relevant legislation in Victoria, an application under s 189 must be made to the court which made the order which is usually the Magistrates’ Court. However, as the ADVO was made by a NSW court, it was necessary for Fred to bring his application in this Court.
SBW submitted that the April 2022 Order impermissibly delegated determination of the purposes for which SBW should be deemed not to be a prohibited person to the ‘Victoria Police Firearms Registry’. The Firearms Act reposed the jurisdiction to determine that question in the Magistrates' Court, and did not authorise the magistrate to delegate the whole or any part of that jurisdiction to another person. The April 2022 Order did not specify the purposes for which SBW was deemed not to be a prohibited person, as required by s 189(2) of the Firearms Act. By ordering that SBW was deemed not to be a prohibited person ‘in other circumstances considered suitable to Victoria Police Firearms Registry’, the magistrate in effect referred the question for her decision to the very person who was bound by the Firearms Act to cancel SBW’s licence unless the Magistrates’ Court deemed him not to be a prohibited person.
I accept this submission. Section 189 of the Firearms Act entrusts to the court to which the application is made the jurisdiction to decide whether the applicant should be deemed not to be a prohibited person, either generally or for limited purposes only. The importance of this question is underscored by s 189(2), which provides that the purposes for which the applicant is deemed not to be a prohibited person must be specified in the order of the court. In SBW’s case, the magistrate did not determine the question. Instead, she left it for the Victoria Police Firearms Registry to determine whether SBW should be deemed not to be a prohibited person for any purpose other than employment.
The ‘purposes’ contemplated by s 189 of the Firearms Act are not at large, but rather relate to the reasons for which the particular applicant holds their firearms licence. The scheme of the Firearms Act is that firearms licences are issued only for specified reasons, which vary with the type of licence. Relevantly here, the Chief Commissioner must not issue a category A or B longarms licence unless the applicant can demonstrate that the licence is required for one or more of five specified reasons, namely:
(a) for sport or target shooting;
(b) for hunting;
(c) for primary production;
(d) for the occupation of security guard or prison guard;
(e)for an official, commercial or prescribed purpose or for a purpose authorised by an Act or regulations.[14]
[14]Ibid [30]-[32].
Accordingly, the following principles can be distilled from the authorities:
(a) the discretion contained in s 189 of the Act is broad, but its limits are to be determined by implication from the subject matter, scope and purpose of the Act;[15]
[15]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-40.
(b) the purpose of the Act is to give effect to the principle ‘that the possession, carriage, use, acquisition and disposal of firearms are conditioned on the need to ensure public safety and peace’;[16]
[16]Section 1 of the Act.
(c) factors relevant to the exercise of the discretion include the purposes for which the applicant wishes to possess and use firearms, the reasons why the ADVO was made, the views of the person protected by the ADVO, the views of the police, and the risks to the protected person and the community generally of the applicant being able to possess and use firearms;
(d) the views of the police may be of particular importance given that the police force is said to represent the public interest, and also has the necessary expertise to reach an informed opinion on the risk posed by particular individuals having access to firearms; and
(e) it may be appropriate to impose conditions upon an order granting an application under s 189 of the Act, including limiting the purpose for which firearms may be possessed and used by reference to the reasons for which a licensed person may be permitted to hold a firearms licence.
Submissions
Fred’s solicitor submitted, in summary, as follows:
(a) the firearms prohibition in the interim order was removed by agreement with the NSW police before the ADVO was made;
(b) Fred has never been charged or interviewed in relation to the altercation, and as such, should be presumed to be innocent;
(c) there have been no breaches of the conditions of the ADVO;
(d) Fred has no criminal history, and has, apart from the ADVO, never been the subject of a restraining order;
(e) Fred’s agreement to consent to the ADVO was made for pragmatic reasons, and his cooperative approach reflects well upon him;
(f) Fred has held a firearms licence for 26 years, during which period there have been no issues concerning his use of firearms, and he will continue to use his firearms in a ‘responsible, safe and compliant manner’;
(g) he has a stable family life and work and business history, and has strong ties to the local community;
(h) given the dispute within the family about the administration of the estate, there is an available inference that the ADVO was sought by Edward for a collateral purpose; and
(i) Fred’s solicitor submitted as follows:
In all the circumstances, taking into account in particular the fact no finding has ever been made about [Fred] (it is submitted he is of good character), combined with his ties to the local community and work history, his stable home life, it is submitted that [Fred] is an appropriate, eligible and worthy person of being deemed non-prohibited.
Accompanying the written submissions filed on behalf of Fred were the following documents:
(a) the interim order, including the police statement, and the ADVO;
(b) a letter from the NSW Police to Fred’s then solicitor, which stated, among other things:
We advise that after careful examination, a determination has been made for the amendment to the AVO without admissions for a period of two years with only standard conditions in place.
(c) an article in the local newspaper in June 2016 celebrating Fred’s appointment as a life member of the Katunga Football Netball Club (‘club’), which reported on effusive statements made by club officials regarding Fred’s contribution to the club;
(d) a letter from another life member of the club dated 8 March 2024, which concluded with the following statement: ‘I believe Fred to be of good moral character and a respected community member who shows responsible gun ownership qualities’; and
(e) an undated and glowing reference from the production manager of J Furphy & Sons, Fred’s employer between 1996 to 2006.
The basis of Edward’s opposition to Fred’s application can be distilled from his affidavit, his oral submissions, and his responses to specific paragraphs of Fred’s affidavit.
Edward’s position, in summary, is as follows:
(a) he is fearful of Fred, by reason of the altercation, Fred’s past possession of firearms, the fact that Fred lives nearby, and what he says is Fred’s dominant and controlling personality;
(b) to the best of his knowledge, Fred does not need a firearm to remove pests or euthanize cattle, and he does not need a firearm for his employment;
(c) he has only recently become aware that Fred has not been interviewed or charged with assault as a consequence of the altercation; and
(d) he considers that Fred’s evidence and submissions to the effect that he is a stable family man with an unblemished record as being self-serving, and not relevant to the determination of Fred’s application.
Discussion
Prior to turning to the merits of the application, I should observe that I am not in a position to make any conclusive findings in relation to the following matters:
(a) whether the altercation occurred in the manner reported by Edward to the NSW police, noting that while Fred denies threatening to shoot Edward, he did not deny that an altercation took place, which causes me to conclude that something did occur;
(b) whether, as suggested by Fred and his solicitors, the report to the police made by Edward on 21 August 2023 regarding the altercation was motivated in some way by the family dispute concerning the administration of the estate; and
(c) the rights and wrongs of the parties’ conduct in relation to the administration of the estate.
All that I can infer from the uncontested evidence is that Fred and Edward are on different sides of a bitter family dispute, that there was some interaction between them (and their respective wives) at the football match in Jerilderie which prompted Edward to make a report to police which resulted in the interim order, and that for whatever reason, the NSW police have not pursued the matter any further.
However, I do accept that Edward made no complaint to the NSW police to the effect that, during the altercation, Fred threatened to shoot him. If such a threat had been made, (or, more accurately, had Edward made an allegation that Fred had made such a threat) then I have no doubt that reference would have been made to such a threat in the police statement. That no complaint was made suggests that no such threat was made, regardless of what did or did not occur during the course of the altercation. And, while I do not know why the NSW police have not pursued matters further, one might expect the position to be different had Edward reported what was in effect a threat to kill him, rather than some pushing and shoving and grappling in a car park at a football match.
I do accept Fred’s evidence that he is a stable family man with an unblemished record, with a genuine and legitimate interest in having possession of firearms. Edward did not really contest this evidence, save to say that Fred’s evidence was self-serving, and to suggest that there was a darker side to Fred’s character.
Turning now to the factors relevant to the exercise of my discretion, I make the following observations:
(a) the purpose of the Act, involving as it does quite substantial restrictions upon the ability of Victorians to own firearms, and its interaction with the legislative scheme addressing the problem of family violence, indicates that community safety is prioritised over individual freedom when it comes to the possession of firearms;
(b) the purpose for which Fred wishes to possess firearms: for recreational purposes (he and his son are members of a clay pigeon shooting club) and for livestock management and pest control on his hobby farm. Edward disputed that Fred lives on a 10 acre property, and owns 20 head of cattle, but did not expressly dispute Fred’s wishes to have firearms for recreational purposes. It is not possible to resolve the dispute about the size and use of Fred’s property, but I accept that Fred’s reasons for wishing to recover possession of his firearms are legitimate;
(c) the reasons why the ADVO was made: Edward reported to the NSW police that Fred assaulted him, unprovoked, in a public place, in the context of an ongoing family dispute;
(d) the views of the protected person: Edward has made it abundantly clear that he opposes the application;
(e) the views of Victoria Police: the police do not oppose the application. I shall say more about the role of the police in this application later in these reasons;
(f) the risks to the protected person and the community generally. Given Fred’s unblemished record as a licence holder for some 26 years, there is no basis for concluding that there is any risk to the broader community by reason of Fred having access to firearms. Rather, the issue is whether there is a particular risk to Edward, and perhaps other family members, given the dispute which has arisen over the administration of the estate; and
(g) whether conditions ought to be imposed upon any successful application by Fred to be a non-prohibited person.
Given the issues in the current application, the real questions are whether Fred has good reasons to have access to firearms, and more importantly, whether there is a real risk that declaring Fred to be a non-prohibited person will endanger the life of Edward, by facilitating his access to firearms which would otherwise remain confiscated. I consider those issues mindful of the purpose and policy principles underpinning the Act, and mindful of the potentially dreadful consequences if I am wrong about my ultimate conclusion.
As previously indicated, I accept that Fred has legitimate reasons for wanting to have access to firearms, largely for sport and recreation and pest control purposes. I do not need express evidence that owners of semi-rural properties, even if they are only just hobby farms or bush blocks, may need to euthanize animals, and may need to control pests such as foxes from time to time. I also appreciate that recreational activities associated with firearms are more commonly engaged in by residents of non-metropolitan Melbourne than by city dwellers. The evidence that Fred has an exemplary track record as a firearms owner was not contested, and the types of firearms confiscated from him seen to be consistent with the purposes for which they are said to be used.
However, none of the matters above would be decisive if I had any real concerns that declaring Fred to be a non-prohibited person would materially increase the risk that Fred would cause Edward, or any other family member, physical harm.
I am satisfied that declaring Fred to be a non-prohibited person would not materially increase the risk to Edward or any other person. Even if the altercation occurred in the manner reported by Edward to the NSW police, there is a world of difference between a scuffle in a car park and the use of a firearm. I repeat my earlier observation that if Fred had threatened to shoot Edward (or anyone else) during the course of the altercation, Edward would have reported that threat to the police, and if he had reported it to the police, it would have been recorded in the police statement. Accordingly, I am satisfied that Fred did not make threats to that effect during the altercation.
I am fortified in my view that there is no material increase in the risk to Edward of granting the application by the lack of opposition of the police to the grant of the application. It is clear from the authorities that the attitude of the police is a relevant factor. I consider that I am entitled to infer that Victoria Police has, when considering Fred’s application, made appropriate enquiries and have made an informed assessment of the risks associated with Fred having access to firearms. I note that the solicitor for the Chief Commissioner did not alter her position regarding the application after speaking with Edward and his wife, after reviewing Edward’s affidavit, and after hearing Edward make submissions at the hearing.
Further, I note that granting the application will not automatically result in Fred regaining his firearms licence and having his firearms returned to him. As can be seen from the letter from Victoria Police extracted at paragraph 14 of these reasons, Fred will be required to make a written submission to the Licensing & Regulation Division of Victoria Police (‘licensing division’) addressing the concerns which led to the suspension notice, following which the licensing division will make an independent assessment of Fred’s suitability to hold a firearms licence. I will also direct that a copy of these reasons be provided to the licensing division to assist in its consideration of any application made by Fred.
Finally, I have decided to impose conditions upon the grant of Fred’s application under s 189(1)(b) of the Act, being that Fred is deemed to be a non-prohibited person for the following purposes:
(a) for sport or target shooting;
(b) for hunting; and
(c) for primary production (and, for the avoidance of doubt, for the purposes of animal husbandry and pest control at his property).
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