Formosa v Commissioner of Police, NSW Police Force

[2024] NSWCATAD 132

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Formosa v Commissioner of Police, NSW Police Force [2024] NSWCATAD 132

Hearing dates:

9 May 2024

Date of orders:

20 May 2024

Decision date:

20 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

N Isenberg, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

FIREARMS LICENSING — prohibited weapon — silencer — genuine reason — whether Applicant demonstrated that silencer whether “necessary” for his employment

Legislation Cited:

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Burton v Commissioner of Police, NSW Police Force [2019] NSWCATAD 14

Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52
Henney v Commissioner of Police, NSW Police Force [2018] NSWCATAD 174

McDonald v Director General of Social Security (1984) 1 FCR 354

Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29
Nakad v Commissioner of Police, New South Wales Police Force[2014] NSWCATAP 10

Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10

Shiv Migration Agents Registration Authority [2008] HCA 31

Category:

Principal judgment

Parties:

Joseph Formosa (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
Sparke Helmore (Respondent)

File Number(s):

2024/00065560

Publication restriction:

Nil

REASONS FOR DECISION

1. On 28 July 2023, the Applicant, Joseph Formosa, applied for a Prohibited Weapons Permit (permit) for a suppressor (silencer). In support of his application he provided the genuine reason of business/employment - other, and claimed that a core function of his business/employment required the use of a firearm with a silencer. His permit application was refused and was also refused on internal review. The Applicant now seeks review by this Tribunal.

Relevant legislation

2. The Weapons Prohibition Act 1998 (NSW) (the Act) sets up a scheme to prohibit and control the possession and use of certain weapons. The underlying principles and objects of the Act are set out in s 3 as follows:

3 Principles and objects of Act

(1) The underlying principles of this Act are:

(a) to confirm that the possession and use of prohibited weapons is a privilege that is conditional on the overriding need to ensure public safety, and

(b) to improve public safety by imposing strict controls on the possession and use of prohibited weapons.

(2) The specific objects of this Act are as follows:

(a) to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon,

(b) to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons,

...

3. Silencers are prohibited weapons pursuant to s 4(1) and Sch 1, clause 4(3) of the Act. It is an offence to possess or use a prohibited weapon unless authorised to do so by a permit: s 7(1).

4. Section 11(1) of the Act provides that the Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has a genuine reason for possessing or using the weapon. Under s 11(2) the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant:

1. states that he or she intends to possess or use the weapon for any one or more of the reasons set out in the Table to that subsection, and

2. is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason.

5. The Table of Reasons under s 11 of the Act provides that for the genuine reason of business/employment purposes, the Applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the prohibited weapon for which the permit is sought.

Evidence

6. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). It also relied on the affidavit of Senior Sergeant Edward Schey of the Police Ballistics Investigation Section dated 1 May 2024. Senior Sergeant Schey also gave evidence and was cross examined.

7. The Applicant provided an email statement dated 26 November 2023 and a statement about his reasons for a silencer and a further email statement dated 1 April 2024.

8. The Applicant also provided a bundle of documents, many of which had already been produced to the Respondent and were before me in the s 58 documents.

9. The Applicant gave evidence and was cross examined.

Consideration

10. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shiv Migration Agents Registration Authority [2008] HCA 31. Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 354 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

11. Having said that though, the cases are to the effect that the Applicant bears an evidentiary onus to demonstrate he has a genuine reason for possessing or using a silencer within the meaning of s 11 of the Act and that it is necessary for him to have a silencer: see Burton v Commissioner of Police, NSW Police Force [2019] NSWCATAD 14, Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 (Allen), Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 and Henney v Commissioner of Police, NSW Police Force [2018] NSWCATAD 174.

The Applicant’s firearms history

12. The Applicant was first issued with a Category AB firearms licence on 14 July 2014, which licence was renewed in August 2019 and August 2021. His current stated genuine reason for holding an AB firearms licence is recreational hunting/vermin control - to shoot on rural land.

13. On 3 July 2023 the Applicant was also issued with a Category D Licence, with the genuine reason of vertebrate pest - contract shooter.

Does Mr Formosa have a genuine reason for possessing or using a silencer?

14. The Applicant claimed it is necessary for him to have a silencer for business/employment purposes. To come within that “genuine reason” he must demonstrate that it is necessary in the conduct of his business or employment to possess or use a silencer.

15. The Applicant’s evidence was to the effect that he plans to conduct business as a professional shooter to supplement his income as a builder, offering his services as a contract shooter in the control of vermin. In making his Internal Review request, the purpose of having a silencer was, he said, for the reasons of employment, specifically noise reduction for close neighbouring property owners and livestock. More particularly, the Applicant claimed that without being able to use a silencer his business prospects would be limited. The Applicant specified that two silencers are required, one for a 243 Tikka – for small game and the other for a 7mm Weatherby – for larger game.

16. He has been actively involved as a volunteer in the culling of feral deer, primarily in the Illawarra and Shoalhaven area. He submitted that the use of silencers means that culling can be completed more effectively, with reduced noise resulting in fewer deer taking fright, making it possible to cull multiple animals rather than a single deer. Many of the properties on which he had been permission to shoot are located in peri-urban areas with properties of around five acres. He noted that shooting without a silencer can startle livestock and domestic animals and creates difficulties and disruption for the owners, and adjacent landowners.

17. In support of his application the Applicant provided copies of letters from various landowners for whom he had previously worked culling deer. Edmund Martin wrote on 5 May 2023 that if the Applicant had a silencer for noise reduction he would employ him further. He wrote on 7 June 2023 that if the Applicant had a silencer it would enhance his hunting ability and would be considerate towards neighbours and domestic animals. Gary Finch wrote on 21 April 2023 that he was aware the Applicant was seeking to shoot professionally and that a silencer would reduce the stress to his livestock, native animals and neighbouring properties. On 12 July 2023 he wrote that the Applicant, once he had had all insurances, authorities and permits would be employed under an ongoing contract to continue vertebrate pest control. Mr M Smith wrote on 15 May 2023 that the Applicant would be engaged as his vertebrate pest shooter on an ongoing contract. He was aware the Applicant was applying for a silencer permit which would “be a great benefit for him and giving (sic) him more success rate (sic) and a tremendous benefit not putting pressure on all our livestock … and adjoining neighbours”. Atlas Davlouros wrote on 18 August 2023 that the Applicant had been doing volunteer culling for some time and he would be engaged further. He wrote that it would be a benefit to the Applicant to use a silencer for increasing the numbers culled and the impact on making it safer for locals. Angelo La Spina completed a document headed “permission to destroy deer on private property” on 24 July 2023 in respect of property in Sapphire Forests, Pentarch Forestry (Pentarch), Bendoc area, which is in Victoria. None wrote that it was a requirement or condition of employment that the Applicant use a silencer; he had engaged in culling in the past (without the use of a silencer).

18. The Applicant also supplied copies of “contracts” he had entered into with respect to deer culling – Anna Lindstrand dated 15 June 2023, Edmund Martin dated 13 July 2023, Peter Moir dated 13 July 2023, Sandra Bayer dated 18 July 2023, his brother, Albert Formosa dated 18 July 2023, Atlas Davlouros dated 18 August 2023, and Gary Finch dated 17 September 2023. None specified that a silencer was required for the role.

19. Ms Linstrand, who is the Director, Potoroo Palace Native Animal Education Sanctuary (Potoroo Palace) also wrote on 15 May 2023 that Potoroo Palace would like the Applicant to undertake vertebrate pest control on the property and carry out culling of deer. She noted he had worked as a volunteer in the past and when he has a ”vertebrate pest control licence” he could be engaged as a contracted shooter. He needed “all permits and insurances” to be so engaged. There was no stated requirement for him to use a silencer. In a later, undated, letter, supplied by the Applicant in support of his Application for Review, Ms Lindstrand wrote that “in order for [the Applicant] to continue his work efficiently and earn a living, he needs to have a suppressor for his gun. This will enable him to be far more successful in ridding us and others of cats and foxes in particular, but possibly deer as well… Having a suppressor will mean he is able to cull without disturbing the native animals in our care. It will also mean when he shoots a feral animal, he is not alerting any other feral animals who may be close by. An added advantage will be that there will be no noise disturbance for neighbouring properties.” I observe that, while Ms Lindstrand considered a silencer would help the Applicant work “efficiently” she did not state that it was a requirement that he have a permit in order to undertake work for Potoroo Palace.

20. The Applicant claimed that without a silencer his employment prospects would be limited, and particularly referred to the opportunity to cull deer for Pentarch which manage 40 plantations, and that a condition of that employment is the use of a silencer. In an undated letter supplied by the Applicant in support of his Application for Review Mr La Spina of Pentarch wrote in respect of the company’s 1261 hectare property in NSW that he was aware that the Applicant had obtained his vertebrate pest contract shooters licence and that in doing work for the company he “must have a suppressor as a requirement to engage in any sort of culling work”. He wrote that once the Applicant has “all his insurances and a suppressor permit” the Applicant could commence employment. The benefit of using a suppressor, he wrote, was that, as the deer are unaware where the noise is coming from but also limits the disturbance to neighbouring landowners.

21. The Respondent relied on the evidence of Senior Sergeant Schey. His evidence was that there are 5 kinds of sounds associated with the discharge of a firearm: pressure wave, supersonic crack, flight noise, mechanical action of a firearm, and the sound of the discharged bullet hitting an object. He wrote that the components of noise/sound from the discharge of a firearm occur at different times during discharge and their origins are from different sources. These times are immediately before the bullet leaves the barrel, immediately after the bullet leaves the barrel, during flight of the bullet, the associated sources of noise from the mechanical action of the firearm and finally the sound of the fired bullet hitting the target. To successfully suppress all the sounds generated can be very difficult, making suppressor design and effectiveness a complex matter.

22. Senior Sergeant Schey was specifically asked to address the Applicant’s contentions (which are largely repeated by those who provided statements in support of the Applicant’s claim for a silencer permit) that a silencer would be the solution for disturbance of livestock, domestic animals and neighbours and also the ability to cull more than one animal. His opinion was that the use of a silencer would not solve those issues.

23. The Applicant’s evidence related to two different types of contract shooting: smaller properties with irregular culling requirements and larger contract work with regular obligations.

24. As to the first, the Applicant said that for some years since he has had his firearms licence he has undertaken volunteer work and has become known as a person in the local area who can engage in vermin control. He provided “contracts’ with some small landowners, but said that work, to date, has largely been unpaid. His accountant, Donna Maggs, wrote in a letter of 10 May 2023 that the Applicant had been engaged in contact shooting for the past few years and that this has formed part of his assessable income. The Applicant said in his evidence that he was first paid 3-5 years ago, but they were a “1-, 2- or 3-off” payments. He would obtain permission to hunt on private properties so it was in the nature of recreational shooting. Sometimes the landowner would offer to pay. He said he doing the right thing by declaring those payments as income. He said he could not ask for payment because he did not have the corporate structure to operate a business.

25. He said he had drawn up the “contracts” to demonstrate that he had permission to shoot on the properties in the event he was queried by Police as to why he was shooting there and if there was a complaint by neighbours. In none of the contracts was there a reference to a requirement for a silencer to be used. The Applicant said the work was intermittent and that he would need about 6-12 private properties and work on each 1-2 hours per week. This would be in addition to the larger, regular, plantation work, discussed below. He said he was developing his contacts for this work through his volunteer work. He observed that, as many private landowners aged, his skills would be more in demand. As observed above, none of the landowners required the Applicant to use a silencer. Most had engaged him for some time, in circumstances where he had not used a silencer. I could not find any indication that they would no longer do so unless he had a silencer.

26. As to the second, more lucrative work, the Applicant referred to the evidence of the opportunity that he had been given to cull deer for Pentarch Forestry (Pentarch) which manages some 40 plantations, and that it was “a condition” of that employment that he use a silencer. The correspondence the Applicant first provided from Pentarch did not include any evidence of a contract, nor the conditions of engagement which required him to utilise a silencer and in fact related to property in Victoria, and thereby subject to the Victorian firearms/weapons regime. The Applicant later provided an undated letter from Angelo La Spina of Pentarch. I accept that Pentarch has large forest holdings in NSW as well other States.  Mr La Spina wrote that once the Applicant had “all his insurances and a suppressor permit” the company could commence his employment.   He wrote that it was considered that the benefits of using a suppressor, not only “gets more numbers as they don’t know where the noise is coming from but also limits disturbance to neighbouring landowners”. The Applicant submitted that it is a condition of his engagement therefore that he have a permit for a silencer.

27. While Senior Sergeant Schey’s evidence was to the effect that using the Applicant’s firearms with silencers fitted will not remove the noise impacts on the target species and the surrounding environment, this is largely irrelevant to the contractual arrangements Pentarch seeks to impose on the Applicant.

28. In Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52, Basten JA said “The meaning of ‘necessary’ “depends on the context in which it is used’’. Ultimately, the Applicant must establish that possession and use of a silencer is necessary in the conduct of his business: Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 at [42]. It is for the Tribunal to focus on the way the business is conducted and that the firearm must be necessary in the context of the core features of the business, not in the context of the way a person chooses to conduct the business: per Allen at [16].

29. I accept that for the reasons he set out in his application the Applicant may find it beneficial to use a silencer. The Applicant’s evidence that he may be able to more effectively shoot vermin with the use of a silencer does not, however, demonstrate that it is “necessary” in the conduct of his business to possess a silencer: per Henney at [37].

30. Further, it is clear that the Applicant has carried out these activities, albeit on a volunteer or virtually volunteer basis for some years without the assistance of a silencer.

31. One potential client, Pentarch, has indicated that once the Applicant had “all his insurances and a suppressor permit” the company could commence his employment. Firstly, it is unclear if the Applicant in fact has in place “all his insurances”, but I accept this impediment to his employment can readily be overcome if the Applicant takes appropriate steps to arrange them. Mr La Spina specifically wrote, and I accept, that a silencer permit is required for the Applicant to be engaged by Pentarch. That the benefits of the use of a silencer may be dubious having regard to Senior Sergeant Shey’s evidence, I accept that it is a condition of the Applicant’s engagement that he have a permit for a silencer. While not all the work he may be required to undertake for Pentarch may require the use of a silencer, it is the fact that his contract is likely to require it, is what is relevant.

14. That does not mean though that the only work the Applicant could do in his business requires a silencer. In Osborne, which dealt with an application for a pistol permit by a licensed firearms dealer who conducted part of his business on a travelling basis, the Appeal Panel wrote of the prohibited weapon as needing to be “directly required” in the business. The Applicant must therefore be able to demonstrate that the use of a silencer would be necessary (in this stricter sense of essential, indispensable, imperative or directly required) to the conduct of his business: per Marando at [53]. I agree with the submission of the Respondent that the fact that one client requests or even demands use of a silencer is not determinative of whether a silencer is necessary for the Applicant’s role in the business of vermin control. The Applicant has the evidential burden to provide evidence on that issue and, in my view, he has not satisfied that burden.

Conclusion

33. For these reasons, I am not satisfied that it is necessary for the Applicant to have a silencer for the conduct of his contract shooting business. He therefore does not have a “genuine reason” for possessing or using a silencer, within s 11(1) of the Weapons Prohibition Act, because he does not satisfy s 11(2)(b).  In these circumstances, the Commissioner (and the Tribunal, standing in the Commissioner ’s shoes) is subject to the prohibition in s 11(2) upon issuing the applicant with a prohibited weapon permit.

34. It follows that the correct and preferable decision is to refuse the Applicant’s application for a permit for a suppressor.

Order

1. The decision under review is affirmed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 20 May 2024