Prohibited Person Possessing Firearms: Legal Guidance
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Prohibited Person Possessing Firearms
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Non-Prohibited Person to Possess, Carry or Use a Longarm Without a Licence
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A non - prohibited person possessing, carrying, or using an unregistered longarm
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Non-Prohibited Person to Possess, Carry or Use a Handgun Without a Licence
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Possessing, carrying or using an unregistered handgun
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Possession of a Traffickable Quantity of Unregistered Firearms
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Using a firearm to resist arrest
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Immediate Cancellation of a Licence
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Cancellation of a Licence Held by a Non-Resident
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Suspension of a Licence and Notice of Proposal to Cancel
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Suspension of a Firearms Licence for Certain Prohibited Persons
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Power of the Chief Commissioner to Cancel Licence
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Restrictions on an Application for a Licence Following Cancellation
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Notice of Chief Commissioner’s Decision and Coming into Effect of Cancellation
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Storage of Firearms under Longarm and Handgun Licences
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Permit to Store Handguns
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Storage of Firearms Under Firearm Collectors and Firearm Heirlooms Licences
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Storage of firearms under dealer licences
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Possession of Cartridge Ammunition
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Safekeeping of Firearms and Ammunition Whilst Being Carried, Used or Kept
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Using a Firearm in a Dangerous Manner
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Offence of being an Unlicensed Person having Stored in an Insecure Manner
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Application to be Deemed not a Prohibited Person
Overview of the prohibited person:
Firearms offences are treated with utmost seriousness, particularly concerning individuals who are prohibited from holding a firearms licence. Under the Firearms Act 1996 (FA), a person declared a “prohibited person” and subsequently found in possession of, carrying, or using a firearm is committing a criminal offence.
The legal landscape surrounding this area is complex and evolving, meaning that law enforcement officers have discretion in deciding whether to press charges. Police possess the authority to petition for a declaration that a person is a “prohibited person,” effectively barring them from possessing any firearms. When a prohibited person is found with a firearm, the consequences can be severe, particularly if the firearm is unregistered, which further escalates penalties.
Example of a Prohibited Person Firearm Offence
Consider a scenario where an individual has been served with an intervention order stemming from a family violence incident, explicitly prohibiting them from possessing any firearms. If this individual is later discovered to be in possession of a firearm, they face serious legal ramifications.
Police Interview Process
In instances where the police allege that you are a “prohibited person” found with a firearm, you will likely be taken to a police station for questioning. At this point, you are entitled to contact our office for legal advice. Engaging with a lawyer beforehand allows you to develop a strategic approach to your interview, helping to prevent common missteps that could adversely affect your defence.
The police interview will be recorded and consist of various questions aimed at uncovering the circumstances surrounding your possession, carrying, or use of a firearm as a prohibited person. Their goal is to gather admissions and evidence to construct a robust case against you, which may inadvertently limit your defence options. While you are not obligated to cooperate with the police, doing so is often in your best interest.
Key Considerations and Establishing Elements of the Offence
When evaluating the charges of being a prohibited person found with a firearm, it is critical to ascertain what constitutes this offence. The prosecution must establish all elements of the offence beyond a reasonable doubt, including:
- Prohibited Person Status (s 3 of the FA): Have you been previously classified as a prohibited person? This includes having a recent criminal history involving firearms offences or being subject to a family violence intervention order.
- Conduct and Intent: The offence requires proof of possession, which, though not defined in the FA, generally means having effective physical control and the intention to possess the firearm.
- Possession Definition: To demonstrate possession, the firearm must either be physically with you or under your control (for instance, in your home). The prosecution must also infer from the evidence that you intended to possess the firearm.
- Definitions of ‘Carry’ and ‘Use’: “Carrying” refers to the act of having the firearm on your person or in your immediate control. The term “use” typically means discharging the firearm, which also implies possession.
- Firearm Definition (s 3 of the FA): A firearm is described as any device capable of discharging a shot, bullet, or missile through expanded gases or compressed air. Notably, certain tools and devices, such as industrial tools or humane killers, are excluded from this definition.
Additionally, the presence of prior incidents involving similar behaviour may significantly impact the court’s proceedings against you.
Penalties for Offences
Charges of being a prohibited person found with a firearm are generally addressed through a contested hearing in the County Court of Victoria. The penalties are severe and may include:
- Declaration as a Prohibited Person: This status results in the mandatory forfeiture of all firearms.
- Cancellation of Firearms Licence: If found guilty, your firearms licence will be revoked.
- Imprisonment: Convictions can lead to a maximum prison term of up to 10 years.
- Financial Penalties: Fines can reach up to 1,200 penalty units, with one penalty unit equating to $161.19.
To assess the severity of the offence, the Magistrate or Judge will consider various factors, including the nature of the offence, whether the firearm was registered or unregistered, the manner in which the offence was committed, and the level of planning involved.
Next Steps and Considerations
If you are charged with being a prohibited person who possesses a firearm, several critical questions must be addressed to evaluate your chances of a successful defence:
- Has the prosecution provided adequate particulars of the charges?
- Can the prosecution substantiate all elements of the offence?
- Did you actually possess, carry, or use the firearm in question?
- Are you aware of your status as a “prohibited person”?
- Should you plead guilty or not guilty, and what is your defence strategy?
- What is the timeline and nature of the alleged breach?
- Do you have a history of similar charges?
- What mitigating factors can be presented to minimise your penalties?
- Do you have a valid defence for your actions?
Our legal team is here to assist you in navigating these complex issues and formulating a strong defence.
Defences to consider:
If you intend to plead not guilty to the charge of being a prohibited person in possession of a firearm, your defence will hinge on the specifics of the alleged offence. Some possible defences may include:
- Lack of proof: The prosecution fails to establish all elements of the offence.
- No possession: You did not actually possess the firearm.
- Unawareness of prohibited status: You were unaware that you were classified as a prohibited person.
- Mistaken identity: You were not the individual who possessed the firearm.
- Ownership dispute: The firearm was found at your residence, but you do not own it.
- Honest mistake: You believed you held a valid licence.
- Necessity or duress: You were compelled to act under extraordinary circumstances.
- Self-defence: You reasonably believed you needed the firearm for protection.
The burden of proof lies with the prosecution to disprove any of the above elements beyond a reasonable doubt, as established in Zecevic v Director of Public Prosecutions (1987) 162 CLR 645. If this threshold is not met, a guilty verdict cannot be rendered.
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-
Prohibited Person Possessing Firearms
-
Non-Prohibited Person to Possess, Carry or Use a Longarm Without a Licence
-
A non - prohibited person possessing, carrying, or using an unregistered longarm
-
Non-Prohibited Person to Possess, Carry or Use a Handgun Without a Licence
-
Possessing, carrying or using an unregistered handgun
-
Possession of a Traffickable Quantity of Unregistered Firearms
-
Using a firearm to resist arrest
-
Immediate Cancellation of a Licence
-
Cancellation of a Licence Held by a Non-Resident
-
Suspension of a Licence and Notice of Proposal to Cancel
-
Suspension of a Firearms Licence for Certain Prohibited Persons
-
Power of the Chief Commissioner to Cancel Licence
-
Restrictions on an Application for a Licence Following Cancellation
-
Notice of Chief Commissioner’s Decision and Coming into Effect of Cancellation
-
Storage of Firearms under Longarm and Handgun Licences
-
Permit to Store Handguns
-
Storage of Firearms Under Firearm Collectors and Firearm Heirlooms Licences
-
Storage of firearms under dealer licences
-
Possession of Cartridge Ammunition
-
Safekeeping of Firearms and Ammunition Whilst Being Carried, Used or Kept
-
Using a Firearm in a Dangerous Manner
-
Offence of being an Unlicensed Person having Stored in an Insecure Manner
-
Application to be Deemed not a Prohibited Person
What happens next?
Our experienced criminal defence lawyers are equipped to provide clarity regarding your firearm charge, guiding you through the legal process and ensuring you understand the implications of your case. We work closely with clients facing firearms offences, leveraging our expertise to avoid convictions, minimise penalties, and align police accounts with the realities of your situation. Our approach includes assessing weaknesses in the police brief, gathering evidence, preserving crucial documentation, identifying potential witnesses, and recommending relevant support services to mitigate penalties.
For comprehensive legal support, contact our dedicated team of criminal defence lawyers for a free consultation 24/7 at 1800 130 120 or visit our website at marcus@mklawfirm.com.au.
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