Henney v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 174

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Henney v Commissioner of Police, NSW Police Force [2018] NSWCATAD 174

Hearing dates:

26 April 2018

Date of orders:

07 August 2018

Decision date:

07 August 2018

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Thode, Senior Member

Decision:

(1) The decision under review is affirmed.

Catchwords:

FIREARMS - prohibited weapon – silencer – genuine reason – meaning of necessary - whether vermin control is a genuine reason contemplated by the Act

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Firearms Act 1996 (NSW)
Weapons Prohibition Act 1998 (NSW)

Cases Cited:

Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148
Marando v Commissioner of Police [2018] NSWCATAD 29
Thompson v Judge Byrne (1999) 196 CLR 14

Category:

Principal judgment

Parties:

Philip Neil Henney (Applicant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel:
H El-Hage (Respondent)

 

Solicitors:
NSW Crown Solicitors Office (Respondent)

  In Person (Applicant)

File Number(s):

2018/00006958

Publication restriction:

Nil

reasons for decision

Background

1. Mr Henney is a 54 year old man who resides predominantly in Picton on a small acreage with his family. In 2017 the Applicant purchased a 110 acre property near Maragle (the property). The Applicant keeps between 10 and 20 head of cattle on the property.

2. Mr Henney has held a Category AB firearms since November 2008, valid to 25 November 2018, issued for the genuine reasons of Target Shooting and Recreational Hunting/Vermin Control. On 22 November 2017, Category H was added to that licence for target shooting purposes.

3. On 16 March 2016 Mr Henney lodged an application for a “General Prohibited Weapon (Silencer) Permit” seeking authorisation for the use of a silencer for recreational/sporting purposes.

4. The application was refused on 8 August 2017 on the grounds that genuine reasons were not demonstrated.

5. On 23 August 2017 the Applicant lodged an internal review stating that due to a change in circumstance, the need for a silencer was changed to business/employment purposes for vertebrate pest animal control.

6. On 11 December 2017 the Commissioner decided to refuse the application for internal review. The Commissioner provided the following conclusion:

“I accept you are of good character, and possession and use of a silencer may be desirable to you. However, I believe the granting of your application does not accord with either the principles and objects of the Act, or Parliament’s intended strict controls on access to prohibited articles. As a result, I believe the Commissioner’s decision was preferable.”

Jurisdiction

7. The Tribunal has jurisdiction to hear and determine the application by reason of s 35(1)(a) of the Weapons Prohibition Act 1998 (NSW) ( the WP Act).

The applicable legislation

8. An application for review is brought pursuant to the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). Section 55 of the ADR Act provides that an interested person may apply for an administrative review of an administratively reviewable decision. Section 63 of the ADR Act provides:

63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

9. Section 35 of the Act provides:

35 Administrative review by Civil and Administrative Tribunal of certain decisions

(1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions:

(a) the refusal or failure by the Commissioner to issue a permit to the person,

(b) a condition imposed by the Commissioner on a permit issued to the person,

(c) the revocation or suspension of a permit issued to the person.

10. The underlying principles and objects of the WP 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,

11. A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit: section 7(1) of the Act.

12. Silencers or any other device designed for attachment to a firearm for the purpose of muffling, reducing or stopping the noise created by firing the firearm are prohibited weapons: section 4(1) and Schedule 1, item 4(3) of the Act.

13. The Commissioner cannot issue a prohibited weapons permit unless he is of the opinion that there is a genuine reason for possessing or using the weapon. Section 11 of the Act provides:

11 Genuine reason

(1) The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the Applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon.

(2) Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an Applicant has a genuine reason for possessing or using a prohibited weapon if the Applicant:

(a) states that he or she intends to possess or use the weapon:

(i) for any one or more of the reasons set out in the Table to this subsection, or

(ii) for any other reason prescribed by the regulations, and

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

Table

Reason: recreational/sporting purposes

The Applicant must demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought….

…

Reason: 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.

...

(4) Subsection (3) does not limit the reasons that the Commissioner may determine are not genuine reasons for the purposes of possessing or using a prohibited weapon.

The issues for determination

14. The issues to be determined are

1. Whether the Applicant’s nominated reasons are genuine reasons within s 11.

2. Whether the Applicant has established that he has genuine reasons for possessing or using a silencer and or whether it is contrary to public principle for such a permit to be granted to the Applicant.

The Commissioner’s case

15. The Commissioner relies on documents filed and served in accordance with directions. These included:

1. The affidavit of Senior Sergeant Edward Schey 19 April 2018;

2. Affidavit of Alexandar Aldo Krstic dated 20 April 2018 ;

3. Affidavit of Cassandra Nelson dated 19 April 2018;

4. Documents filed pursuant to s 58 of the ADR Act filed on 26 April 2018;

5. Written submissions filed by counsel for the Commissioner;

16. The Applicant filed the following material:

1. The application form filed on 5 January 2018;

2. A folder with additional material and 27 Annexures;

3. The Applicant’s submissions and summary dated 20 March 2018.

The Permit Application(s)

17. In 16 March 2016 the Applicant filed a Prohibited Weapon Silencer Permit Genuine Reason Form nominating “recreational/sporting purposes” as the reason for the application. In the supporting documentation Mr Henney named his genuine reasons for the application as follows:

I am the owner of a 110 acre rural property at xxx Maragle NSW 2653 …. The property is tenanted out.

Being surrounded by pine plantation and crown land, the property has an ongoing feral pest problem (i.e. feral pigs, deer, wild dogs and rabbit) which require control.

Furthermore I have undertaken a Kangaroo Harvester Firearms Accreditation course (number xxx). The tenants farm cattle, plus have a number of horses on the property, however, the use of regular firearms causes the cattle/horses to scare, potentially jumping the fence into surrounding property onto xxx road.

The permission to acquire a suppressor would be sincerely appreciated. …

18. The Applicant no longer cites recreational/sporting purposes as a genuine reason for the use of a silencer.

19. In a second “Application for a Firearms Permit” form submitted on 24 May 2017 the Applicant provides “Further Evidence of Legitimate Reasons”. He states that upon reflection his reasons for the application are that vermin control with a silencer would be more effective as “shooting without a silencer can only be undertaken whilst cattle are not grazing because cattle can be significantly spooked by the sound of a firearm and scared cattle may push through the fencing onto the road or into the nearby nature reserve or onto the road posing a significant traffic hazard”.

20. The Applicant further states that he is a primary producer and that vermin control is improved with the use of a silencer. If a silencer is not used, the sound of the first shot tends to scare other deer/ kangaroos etc which return over the fences to the surrounding forests thus making vermin control difficult. He states “having used suppressors in New Zealand, I note that the use of a suppressor would eliminate these risks and improve vermin control”.

21. Having considered both the March and May 2017 submissions, the Commissioner refused the application on 8 August 2017 stating the following reasons:

Giving consideration to all the information refer to above, I find that you have not demonstrated a genuine reason to possess and use a prohibited weapon silencer by virtue of failing to demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

As a delegate of the Commissioner I therefore refuse your application for a General Prohibited Weapon (Silencer) Permit.

As a consequence of refusing the General Prohibited Weapon (Silencer) Permit, I find that there is no utility in issuing the Prohibited Firearm ‘Silencer Permit’ and that to do so in circumstances where you have been refused access to a silencer would be contrary to public interest.

As a delegate of the Commissioner I therefore refuse your application for a prohibited firearm silencer permit.

22. On 23 August 2017 the Applicant lodged an application for internal review of the decision. The Applicant stated that the Commissioner had failed to note his change in circumstance and that the application was wrongly assessed pursuant to “recreational/sporting purposes” when the genuine reasons put forward by the Applicant were changed to “business/employment purposes – vertebrate pest animal control.”

23. On 11 December 2017 the Commissioner decided to refuse the application for internal review. The Commissioner considered the Applicant’s submissions concluding:

“… I accept you are of good character, and use of a silencer may be desirable to you. However, I believe the granting of your application does not accord with all the principles and objects of the Act, or Parliament’s intended strict controls on access to prohibited articles. As a result I believe the Commissioner’s decision was preferable.”

Genuine Reasons – recreational/sporting or business/employment purposes?

24. The Applicant bears the evidentiary onus of establishing that he has genuine reasons for possessing or using a silencer within the terms of section 11, see Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 and Marando v Commissioner of Police [2018] NSWCATAD 29 [55].

25. The Applicant submitted the original application nominating “recreational/ sporting purposes”, one of the genuine reasons listed in s 11 of the Act. He now cites “business/employment purposes – vertebrate pest animal control” as genuine reasons. It is on this basis alone that he proceeds on his application for review.

26. It is noted that the Applicant did not submit his original application seeking permission to use a silencer for “business/employment purposes”. These words first appear in a letter submitted to the Registry after 8 August 2017.

27. Presumably the Applicant did not elect “business purposes” on the “Genuine Reasons Form” provided by the Firearms Registry because the Applicant does not fulfil the criteria. The form offers very limited criteria an Applicant may nominate as “business purposes” by placing a tick in the appropriate box. The form invites applicants to mark the appropriate box for “business purposes” only if the person:

1. is applying on behalf of a vertebrate pest control business,

2. is applying on behalf of a registered control business;

3. can provide evidence of contracts to control feral animals vermin by use of a firearm with a silencer.

28. There is no evidence that the Applicant satisfies those criteria. There is no box the Applicant could have marked other than the one entitled “recreational/sporting purposes”. The applicant has since applied for a permit for business/employment purposes.

Is vermin control a genuine reason within the meaning of section 11 of the Act?

29. It is acknowledged on behalf of the Commissioner that section 11 does not limit the range of possible reasons to those set out in the section, however, the Commissioner disputes that “vermin control” is a genuine reason within section 11(2).

30. The Tribunal must first consider whether the Applicant’s nominated reasons are genuine reason within the meaning of s 11. The relevant issue is whether “vermin control” falls within the business/employment category and whether the Applicant can establish a necessity for the use of a silencer. The categories set out in s 11 impose an onus on the Applicant to demonstrate that the prohibited weapon is “required” or alternatively “necessary”. The Commissioner accepts that in the context of s 11 “necessary” is synonymous with “needed” see Allen [17]. The wording of s 11 suggests that in order to constitute a genuine reason the nominated reason must involve an activity which requires the use of a prohibited weapon.

31. “Requires” is not defined in the Act. In construing words in statute a court should strive to give the words the ordinary and natural meaning unless the context requires otherwise Thompson v Judge Byrne (1999) 196 CLR 141 [19] per Gleeson CJ. As a matter of ordinary meaning “required” generally means something that is needed, necessary or indispensable, see Marando [71] – [74].

32. Under the WP Act the starting point for any item listed in schedule 1 is that it is illegal to possess or use a silencer. Parliament intended to impose strict controls on the possession and use of prohibited weapons and there are serious consequences including possible offences, for non-compliance with such controls and related requirements.

33. The issue in considering whether the Applicant has nominated genuine reasons for possession of a prohibited weapon is an enquiry into what constitutes a “business”. The Commissioner submits the Tribunal should not be satisfied that the Applicant has provided any information why he should be granted a permit for business or employment reasons.

34. In his amended application the Applicant nominates the following reasons for needing a silencer:

1. Invasive Vertebrate animal control;

2. Minimising the risk of livestock cattle being frightened by rifle shot;

3. Improved accuracy and efficiency and reduction in firearm recoil;

4. OH&S compliance which seems to equate with minimising hearing damage.

35. The Commissioner submits none of these reasons fall within s11 definition of “business/employment” reasons.

36. The “genuine reasons” as outlined in section 11 broadly fall within two categories: commemorative/collectors genuine reasons and the remaining activities listed, all of which are unique. None of the Applicant’s nominated activities constitute an activity which in the ordinary course requires the use of a prohibited weapon. Moreover, when considered collectively, the nominated reasons indicate that the Applicant relies on the single reason of vermin control as the genuine reason for the use of a silencer. As the Tribunal accepted in Marando, vermin control of itself does not constitute a genuine reason within s11 (see Marando at [61] and continuing]).

61 In the circumstances of this matter I am not satisfied that culling of feral animals/vermin on his property is a genuine reason contemplated by the Act.

62 …the minimum requirements for the possession or use the weapon for culling of feral animals/vermin would be that the Applicant requires or needs to possess or use a silencer for the culling of feral animals/vermin or that it is necessary.

63 In this regard I accept the evidence given by Mr Eccles that the use of a silencer would be of little assistance in the culling of feral animals/vermin. I also note Mr Eccles’ view that the only long term solution to stopping the impact of foxes, cats, rabbits and hares on the Applicant's property is adequate fencing.

64 I have set out above the discussion by the Appeal Panel in Allen regarding the word “necessary”. I will discuss the word “requires” below.

65 In the circumstances I am not satisfied that the evidence establishes that the possession and use of a silencer is required, needed or necessary for the culling of feral animals/vermin.

66It is not necessary that I address the issues that were raised by the Commissioner in regard to potential safety issues regarding the Applicant’s use of firearms on his property.

37. The Commissioner submits that the Applicant’s case appears to be that he may be able to more effectively shoot pest animals with the use of a silencer, and therefore should be granted one to use in the control and management of pests. These reasons of themselves do not demonstrate that it is necessary in the conduct of the Applicant’s business to possess a prohibited weapon.

The Applicant’s Case

38. The Applicant filed and served documents and 27 attachments. Each of the attachments has been considered by the Tribunal. It is noted that the Applicant provided a considerable number of pages which appear to be produced by internet search engines. Some of the material was objected to by the Commissioner.

39. The Applicant sought to rely on two reports entitled “An Investigation into the use of Sound Moderation for Hunting and Game control” by Dr Martin McCarthy, Professor Martin O’Neill and Dr Helen Cripps. The Applicant attached extracts of a PhD thesis of Ms Aimee Lister, entitled “Investigation into the Optimisation of Sound Suppressor Geometry”. The tender of both documents was objected to by the Respondent. Both publications were available on the internet and not prepared for the purpose of this litigation. The reports, whilst undoubtedly prepared by persons with expertise in the use of silencers, can be of no assistance in coming to a conclusion in this application whether vermin control can be enhanced by use of a silencer by Mr Henney in particular. Other than to state that silencers may in certain circumstances enhance vermin control the reports were of little or no relevance. Both the McCarthy and Lister reports were excluded by the Tribunal and oral reasons for the decision to exclude the evidence were given to the parties at the hearing.

38. The Applicant gave sworn oral evidence at the hearing. He relies on four reasons for his application which he states fall within “business/employment purposes” of s11 of the Act. The Applicant submitted that his cattle farm of 110 acres is a genuine and legitimate business and that after selling nine yearlings recently, 12 calves and one bull remain on the property. He would not classify his property as a hobby farm because it generates income however, he has filed no tax returns, profit or loss statement or other documents to support the contention that the property generates income.

39. Mr Henney denied that he visits the farm solely for recreational shooting purposes. He assisted his tenants, who have now vacated the property, with vermin control from time to time during night shoots with his son. Vermin regularly found on the property include kangaroos, deer and feral pigs among others. Mr Henney placed particular reliance on attachment 13 of exhibit A, a publication under the heading “Pestsmart – Standard Operating Procedure DEE001 Ground shooting of Feral Deer” by Trudy Sharp , a document created on behalf Invasive Animal CRC, a former service of the Commonwealth Government (the Pestsmart article). The author asserts that shooting should only be used in a strategic manner as part of a co-ordinated program designed to achieve sustained effective control and with equipment for effective vermin control, including an appropriate silencer fitted to the rifle, provided the use has the appropriate permit. The publication states that culling of vermin assists any co-ordinated program, usually conducted in national parks or reserves as part of a long term control strategy for reducing negative impact on native flora and fauna. Shooting is considered the most effective technique currently available for reducing deer populations. The Applicant states that deer destroy his fences and have unchecked ingress into the property. By reason of its undulating topography the boundary of the property is impossible to fence, particularly around the nearby creek. He only sought to acquire a permit for a silencer because the Pestsmart article, published on behalf of the Federal Government recommends its use. He states that alternative pest control methods such as regular bating are undesirable as he has already lost one cattle dog to poisoning.

40. Secondly, the Applicant submits that the use of a silencer significantly lessens the startle response of cattle and other farm animals, although he concedes he has no first-hand knowledge of this. The Applicant states in oral evidence that he can state through first-hand experience that when a firearm is discharged without a silencer, cattle and horses get startled and run towards the fence. Mr Henney submits cattle may eventually break through the fence and enter the adjoining nature reserve or cross onto a road causing potential damage or injury. He concedes this has never actually happened.

41. Thirdly, the Applicant states that for occupational health and safety reasons he is more inclined to use a silencer because the use of an unsilenced rifle can be detrimental to his hearing. He has noticed that even with the use of ear muffs or plugs during kangaroo culling he has suffered from ringing ears following night shoots.

42. Fourthly, the Applicant maintains the use of a suppressor increases the accuracy of the shot. Although he concedes he has no personal experience in this and states that the respondent’s expert witnesses have far greater expertise in this area.

43. I have had regard to the written submissions provided by the Applicant. He states that after the tenants vacated the property in 2016 he undertook primary production activities and applied to update the genuine reasons on his A/B Firearms Licence from target/recreational shooting to business/employment purposes - vermin control. The Applicant alleges the letter from the Commissioner refusing his application failed to examine the business/employment purposes vermin control. He submitted that vermin poses a considerable problem on his property. The property attracts multiple pests, including fallow deer, kangaroos, wild dogs, foxes and kangaroos. According to the applicant, damage caused by vermin is significant, grazing pressure and resultant loss of farm productivity is calculated at around $5000 per annum, equivalent of an extra seven head of cattle or 25% of the notional carrying capacity. The notional carrying capacity is approximately 28 head of cattle. The Applicant, at the time of the hearing stated that he owns about a dozen calves. There is no evidence that he is seeking to increase capacity. Nor did the Applicant tender actual evidence of actual rather than estimated losses incurred. The Applicant obtained a letter from his accountant which states “PN Henney commenced activities that meet the ATO’s definition of a Primary Producer as defined in Tax Ruling TR 97/11 during the 2016/17 financial year.” No accounting evidence was provided to support any findings that income was derived or losses were sustained (Attachment 8a). Mr Henney submits that the damage to fencing is significant and that the financial loss is hard to calculate but estimated to be around $1000 per annum. Again, no accounting details for fencing costs incurred were forthcoming. He states that feral pigs are rooting up pasture and the damage “done during winter is approximately 4 acres of land”. According to the Applicant there is a potential cross-infection of disease from feral animals to life stock. He maintains existing methods of shooting are ineffectual to a meaningful reduction because “as soon as one deer is shot, the others disperse rapidly over the fence into areas where shooting is not permitted”.

44. The Applicant submits that there is a “genuine requirement to muffle the noise of gunshot, either from a public safety perspective, a personal perspective or where the situation requires, that other animals in the vicinity are not disturbed by the sound of a gunshot”. He maintains that the silencer provides increased accuracy, reduced recoil, reduced lifestock disturbance, more efficient animal husbandry, and better animal welfare outcomes through more humane culling (see submissions p. 23).

Consideration

47. I am of the view that the Applicant has not provided genuine reasons within the meaning of s 11 which would warrant the issue of a permit authorising the possession or use of a prohibited weapon.

48. The predominant genuine reason proffered by the Applicant is vermin control. The Applicant has not established that vermin control is a genuine reason for the purpose of s 11 of the Act. Even if I have erred and vermin control can amount to a genuine reason, the Applicant has not established that the use of a silencer will assist in either the effective culling of animals or in better animal welfare outcomes as the Applicant has provided only anecdotal evidence to support these claims.

49. The Applicant maintains that vermin control is a genuine reason within the meaning of s 11 of the Act. I have had regard to the authorities of Allen and Marando. Whilst I am not bound by a single member decision of the Tribunal, I respectfully adopt the findings reached by the Senior Member in Marando as apposite to the facts of the current case.

50. Mr Marando applied for permission to use a silencer for the culling of feral animals and vermin on his property to avoid damage to his fruit and vegetables and loss of lifestock. The words “vermin control” do not appear in s 11 of the Act. It is of little consequence that Mr Marando elected “recreational/sporting purposes” as genuine reasons as opposed to “business/employment purposes”. The test remains essentially the same. The current Applicant must demonstrate that it is necessary in the conduct of his business (emphasis added) to possess or use the prohibited weapon for which the permit is sought.

51. The question to be determined is whether the use of a silencer is necessary in the conduct of the applicant’s business. First, I am not satisfied that Mr Henney has established he is conducting a business. Although yearlings were sold in recent times, Mr Henney stated in cross-examination that his main income is derived from his occupation as a salesman. He has tendered no evidence to suggest that the property has a commercial purpose. Mr Henney has filed no tax returns or BAS statements and has not provided evidence that the 12 calves currently kept on the property are likely to generate a profit. Given the very limited evidence of a one time sale of lifestock, I am not satisfied that Mr Henney is carrying on a business as a lifestock producer. I have noted the letter from his accountant. The finding whether Mr Henney carries on a business at the above address is a finding of fact. In the absence of any other documentation, other than an invoice of a single sale of calves, I am not satisfied, on the balance of probabilities that Mr Henney is conducting a business from the property, or that the business has sustained any losses directly attributable to lack of use of a silencer.

52. If I have erred, and the evidence is capable of establishing that the Applicant is carrying on a business, I am not satisfied that the Applicant has established that it is “necessary in the conduct of the Applicant’s business to possess or use the prohibited weapon for which the permit is sought”. I am not satisfied on balance, that the evidence is capable of establishing that the use of a suppressor silencer effectively minimises animal harm, or significantly increases the ability to control vermin.

53. The Commissioner relies on the expert evidence of Senior Sargeant Edward Schey of 19 April 2018. Mr Schey stated that a well-designed silencer will decrease a pressure wave but is unable to prevent the supersonic or ballistic cracking noise of a bullet. A flight or whirring noise of a bullet can also not be suppressed. In summary, Senior Sargent Schey states that the components of noise and sound from the discharge of a firearm can be noticeably reduced but not eliminated. He agrees with the proposition that under certain circumstances and situations an effective suppressor may also reduce the need to wear ear muffs, but the exact amount of sound reduction cannot be quantified or rated to any useful scale for the purpose of his report. He states that a suppressor is not necessary to protect a shooter from the impact of hazardous noise. The risk of hearing loss in using a firearm can be effectively managed in other ways than the fitting of a suppressor, with appropriate protective equipment such a plugs or ear muffs, which is mostly mandatory. He also agrees with the general proposition that the use of a silencer can impact on the accuracy of a firearm.

54. Whilst SnSgt Schey supports the Applicant’s proposition that a silencer can, in certain circumstances, increase accuracy and decrease noise, the expert’s concluding opinion is that the use of a suppressor would not reduce disturbance to stock because subsonic ammunition cannot eliminate flight noise, or the noise created by the mechanical action of the firearm or the sound of the bullet hitting the target. More importantly, the expert is of the view that the use of suppressing the bullets speed to below the speed of sound (subsonic) could potentially reduce the kinetic energy of the bullet’s path and “without sufficient kinetic energy as in subsonic bullets, the bullets will not expand or function as they are designed and unless a vital organ is directly struck the animal may be maimed and escape (inhumane death)”. SnSgt Schey was not cross-examined and his evidence on the whole remains unchallenged.

55. The Respondent relies on the expert evidence of Mr Alexandar Krstic. Mr Krstic’s extensive expertise was not challenged. The expert is professionally engaged in the management of wildlife and vertebrate pest species. He is a professional hunter and licensed wildlife controller and the general manager of an accredited ballistics testing laboratory. I accept and prefer Mr Krstic’s expert opinion over the lay opinion expressed by Mr Henney. Mr Krstic is not of the opinion that the accuracy of a firearm is increased solely because it was fitted with a silencer. He is not aware of any credible evidence to support the assertion that the fitting of silencers to the muzzles of firearms increases the accuracy because of barrel whip, the flexing movement of the barrel of a firearm when it is fired. Indeed, he has observed significant reduction in the accuracy of firearms fitted with silencers in some cases. I accept Mr Krstic’s opinion that the use of a silencer does not reduce animal disturbance or the tendency of likelihood of vermin animals to flee at the sound of a gunshot. Primarily because wild or feral animals are acutely neophobic and highly sensitive to noise produced from an artificial source however quiet. Wild animals, in particular herbivores, have acute senses of hearing, smell and sight and discharge of a suppressed weapon even when using very low noise sub-sonic ammunition in the majority of cases results in evoking a high level of alertness, alarm and fright and flight behaviours. In contrast, the case of domestic lifestock, horses, cattle and sheep, etc some show little or no concerns when shots are fired from supressed weapons while others exhibit acute fright and flight behaviour. I accept Mr Krstic’s opinion that there is no reliable evidence that the use of silencers assists with effective control of vermin and reject Mr Henney’s submission that the mere attachment of a silencer suppressor to a firearm improves the efficiency of a firearm in the hunting and killing of animals.

56. I accept and prefer the expert evidence of the Respondent. There is no cogent evidence that the Applicant, a competent and experienced shooter, is unable to control the vermin on his property through conventional shooting methods, or that the use of a silencer would be of any measurable sustained benefit to the control of vermin.

57. I find the current application is distinguishable significantly from the Appeal Panel decision of Allen. Mr Allen, as was found, operated a significant sheep grazing operation on two properties, 815ha and 600ha respectively. He ran 200 sheep producing fine merino wool, and attack by feral dogs was frequent and costly. Mr Allen had ceased to breed stock because of the particular vulnerability of lambs. His stock losses were as high as 25 to 30 percent in some years. He produced photographs of sheep that had been attacked by wild dogs, and photographs of damaged soil and extensive areas of pasture affected. A loss of 30% of stock was evaluated as costing around $8000 to $10,000 per annum. He also gave evidence that the conditions needed for generating income from fine wool production had been significantly eroded by the invasion of vermin. Mr Allen produced evidence that around 800 dog baits annually provided no significant relief and that the success rate of baiting was random. He provided evidence to suggest that other more conventional vermin control techniques had not proven successful. The Applicant in the instant case has provided no specific evidence how conventional methods of vermin control have been employed or failed, or proven to be unsuccessful. Whilst I acknowledge that a direct comparison method is not possible because data comparing conventional vermin control such as bating, and vermin control with use of a silencer is not available, the onus remains with the Applicant to demonstrate that it is necessary in the conduct of his business to possess or use a prohibited weapon.

58. While I am persuaded that the Applicant thinks it desirable to own a silencer, I am not persuaded that the Applicant has established that the property is conducted as a business or that the use of a silencer, if a permit were granted, will result in better vermin control.

59. Based on the evidence in this case, I do not find that the evidence establishes that the Applicant is running a business, or alternatively that the possession and use of a silencer is necessary for the Applicant’s business in circumstances when the business sustains no more than 12 calves on the property and there is no actual evidence of income loss. The Applicant has not established a causal connection between being granted a permit for a prohibited weapon and it being necessary to the running of his business at Maragle.

60. The Tribunal in Marando held that culling of feral animals/vermin is not a genuine reason contemplated by the Act. I respectfully accept the conclusion of the Tribunal, although as a decision of the Tribunal at first instance I am not bound by it. I accept the expert evidence of Mr Krstic and Sn Sgt Schey that the use of a silencer would not make any conceivable difference to the number of vermin culled at any given time.

61. I accept that the Applicant, an experienced shooter with an unblemished record, would find it desirable to own a silencer, however, I am not satisfied that the evidence establishes that the possession of a silencer is necessary for the culling of feral animals.

62. It is not necessary to discuss the issues of public safety or whether the Applicant is a person good character. These are not issues which are relevant for my consideration.

63. I am not satisfied that the Applicant has satisfied the requirements of s 11 and find that the Applicant has failed to demonstrate that a business is being conducted or that it is necessary in the conduct of a business to possess and use a silencer and the decision of the Commissioner should be affirmed.

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: 07 August 2018