Trigg v Commissioner of Police, NSW Police Force

[2018] NSWCATAD 272

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Trigg v Commissioner of Police, NSW Police Force [2018] NSWCATAD 272
Hearing dates:	3 May 2018
Date of orders:	27 November 2018
Decision date:	27 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	T Simon, Senior Member
Decision:	The decision under review is affirmed
Catchwords:	FIREARMS - prohibited weapon – silencer – genuine reason –- whether vermin control is a genuine reason contemplated by the Act
Legislation Cited:	Administrative Decisions Review Act 1997 (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
Category:	Principal judgment
Parties:	Michael John Trigg (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel: Applicant In Person H El-Hage(Respondent)
File Number(s):	2018/00004629
Publication restriction:	None

Reasons for Decsion

1. This is an application by Mr Trigg for review of a decision made by the Commissioner of Police refusing to issue the applicant with a licence for a silencer..

2. The applicant has held a Category AB firearms license (target shooting and recreational hunting/vermin control) since 14 April 2011 and that license expires on 9 June 2021.

Background

3. On 15 March 2016 the applicant lodged an application for a prohibited weapons permit. The application was refused on 8 August 2017 and the applicant then lodged an internal review of the refusal. On 6 December 2017 the commissioner refused the application under the Weapons Prohibition Act 1998 (NSW) (the Act) for a General Prohibited Weapons Permit to possess and use a silencer.

4. The review made a number of material findings of fact including that there were no issues raised in relation to the applicant’s character and that he had held a firearms license without blemish and no breaches have been found. The initial application has been refused on 8 August 2017 on the grounds that genuine reasons were not demonstrated to authorise the possession and use of the silencer. The Commissioner concluded:

“I accept you are of good character, and possession and use of a silencer is clearly desirable to you. However, based upon the totality of the information before me. I am satisfied that you have not demonstrated that the recreational/sporting activity concerned requires the prohibition sought. In my view 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

5. The Tribunal has jurisdiction to hear and determine the application by reason of s 35(1)(a) the Act.

The applicable legislation

6. The 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.

7. 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.

8. 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,

9. 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.

10. 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.

11. The Commissioner cannot issue a prohibited weapons permit unless the Commissioner 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)   or 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….

(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.

Material before the Tribunal

12. The Commissioner relied on the following documents:

1. The affidavit of Senior Sergeant Edward Schey dated 23 March 2018;

2. Report of Warwick Williams dated 12 March 2018

3. Affidavit of Cassandra Nelson dated 23 March 2018;

4. Written submissions od the Commissioner received 23 March 2018.

5. Documents filed pursuant to s 58 of the ADR Act received on 14 February 2018;

13. The applicant relied on the following:

1. Affidavit of Michael John Trigg dated 20 March 2018

2. Submissions received on 23 March 2018

14. At hearing Mr Triggs, Senior Sergeant Schey, and Dr Williams were all cross examined

Consideration

15. The applicant holds a Category AB firearms license (target shooting and recreational hunting/vermin control) which expires on 9 June 2021 (Licence). In his application for a silencer made on 15 March 2016, the applicant nominated "recreational/sporting purpose" as the "genuine reason" for seeking a permit for a silencer. The applicant set out a number of reasons for seeking the possession or use of a silencer: The Commissioner makes submissions that the evidence available does not establish that the applicant has a genuine reason for possessing or using a silencer and that it would be contrary to the public interest to grant the permit sought by the Applicant.

16. The Commissioner's relies on the decision in Marando v Commissioner of Police [2018] NSWCATAD 29 (Marando). In which the Tribunal found that it is not sufficient to simply have a desire for a silencer, rather an applicant must establish a "genuine reason".

17. As part of his application, the applicant has identified the following reasons for seeking a permit for a silencer:

1. Reduction in noise induced hearing loss;

2. Assistance in the deception and confusion of targeted animals;

3. Improved effectiveness of pest animal control;

4. Reduction in noise disturbance of neighbours;

5. Reduction in disturbance to stock;

6. Reduction in firearm recoil.

18. The applicant has nominated a “genuine reason” for seeking the permit as “recreational/sporting purpose” and for the management of pests and vermin. Having considered the evidence the Tribunal is not satisfied that applicant requires the silencer for "recreational or sporting activity" or for vermin or pest control. Even if the applicants hunting and activities are capable of establishing that the applicant is involved in recreational, sporting and culling activities, the Tribunal is not satisfied that the applicant has established that his activities requires a suppressor or silencer.

19. In relation to the reduction in noise induced hearing loss the applicant relies on a letter from Andrew Myles and A/Prof. C. Birman dated 31 August 2016. The applicant submits he has sufficient hearing loss to affect everyday conversations and requires the use of hearing aids. He submits he has a legitimate requirement to protect his hearing from any further damage through firearm use. The Tribunal finds that a deficiency in the applicant's hearing does not provide a basis for the applicant being able to establish that a silencer is required. The evidence does not establish the extent to which a fireman has or will cause deficiencies in his hearing or how his use of firearms will adversely affect his hearing. In his report Senior Sargent Schey makes comment on the vast and varied array of silencers available and makes comment, in particular at paragraph 12 about that the extent to which a silencer reduces the sound emanating from a firearm depends on a multitude of factors.

20. Dr Williams states at paragraph 3 and 4 of his report:

There is always a risk to impulse noise exposure when shooting or when in the close vicinity of a shooter during shooting activities. In the case of weapons from which the projectile travels at a speed equal to or greater than local speed of sound (in air) a suppressor/silencer has no appreciable effect on the sonic 'crack' made by the projectile...... a suppressor/silencer can only reduce the peak noise level from the muzzle blast and even then there are limitations depending on the length of the barrel of the weapon and the size of the propellant charge used. It must be noted that in the vicinity of and on the shooter the attenuation from a suppressor/silencer is typically in the order of20 to 30 dB.

21. Dr Williams continues to cite a study which states that :

....hearing protection should be worn whenever firing a gun. For more energetic firearms when target shooting double protection is warranted for the unsuppressed gun and single protection is needed for a suppressed gun..

22. The applicant complains that earmuffs cause him discomfort because he wears safety/prescription glasses and humidity builds up and glasses interfere with the proper seal of the ear muffs. Sargent Schey in his report refers to his own personal use of the combination of glasses and ear muffs and states they do not interfere with each other.

23. Dr Williams also refers to the use of glasses with thin frames and ear plugs as a practical solution. The applicant in cross examination said he had worn ear plugs once or twice and he suggests that the earmuffs "prevent hearing situational awareness". Sargent Schey refers to the option of electronic ear muffs which "cut out both loud sound pressure impulses and also continuous excessively loud sound" but otherwise do not interfere with other sounds.

24. The Tribunal is not satisfied that the applicants own subjective discomfort with the alternative of using a combination of eyewear, earmuffs or alternative electronic ear muffs establishes that a silencer should be preferred over the protective equipment. The Tribunal does not find on the evidence that the silencer will reduce hearing loss or that it is required because of the applicant’s hearing loss.

25. In cross examination the applicant stated that he goes hunting on private properties on average about twice a year. He submits that the silencer assists in the deception and confusion of targeted animals and reduction in disturbance to stock. The applicant states that the private properties he hunts on are active primary production enterprises running stock animals and/or growing crops and that feral animal reduce farm productivity. He states that some pest animals have use their hearing to detect danger and that suppressor’s can camouflage those noises and improve the efficiency and effectiveness of pest control.

26. The Tribunal also rejects this ground. As has been previously referred to the impact and effect of silencers varies. In relation to the two private properties that the applicant refers to, the applicant has not established that there are not alternative methods of vermin control that could be used on the property. The applicant’s situation is in contrast to the case of Allen v Commissioner of Police, NSW Police Force [2015] NSWCATAD 224. In that case it was the land owner himself who ran some 200 sheep producing high-grade Merino wool. He has suffered extensive damage to his sheep as a result of the feral animals and his property was adjacent a national park. Those circumstances were unique and differ from this case because there was evidence before the Tribunal that wild dogs and other feral animals were a major problem. There was evidence that Mr Allen had tried multiple methods to control feral animals, without proper success. His land was also surrounded by a National Park which meant that feral animals dispersed onto his land when National Parks and Wildlife Services undertook eradication measures to control feral animals in National Park lands. The damage caused by feral animals over the years was causing major financial problems and jeopardised his business. The applicant has not demonstrated the same type of evidence in relation to either of the properties on which he hunts.

27. In relation to the reduction of noise disturbance for neighbours the applicant relies on the fact that pest animals are most active in the early morning and evening and the sound of the firearms at these times can be particularly annoying for neighbouring property owners. He also relies on the NSW Environment Protection Authority's Noise Guide for Local Government and states that control of noise at the source is always the preferred method of noise control as it reduces the impact on the entire surround area (NSW Environment Protection Authority 2013). He states that it is in the interest of maintaining good relations with neighbours of the properties he hunts on that noise associated with my pest control and hunting activities be reduced to the greatest extent possible by use of a suppressor.

28. The Tribunal does not accept that the applicant has established that this is a genuine concern. The applicant has not established that the neighbours on the properties which he hunts will be affected by such noise. The affected properties are in rural area where the properties may be some distance apart.

29. In relation to recoil the applicant alleges that for shooting larger game and feral animal, larger calibre firearms and heavier projectiles are required. The applicant makes submissions that recoil makes the act of shooting heavy calibre firearms less unpleasant and indirectly assists in increasing accuracy and therefore helps humane killing of animals.Senior Sergeant Schey agrees that a suppressor may impact on the accuracy of a firearm but concludes that depending on the fit and quality of the suppressor and huntsman a suppressor itself may not be the only determinant of accuracy. He states that in some instances “deviation could affect accuracy by the suppressor adding additional force to the barrel not designed or accounted for by the firearm manufacturer and change of accuracy.” The Tribunal is not satisfied on the evidence that a silencer will necessarily assist with recoil as recoil appears to be dependent on a number of factors beyond the use of a silencer.

30. While the Tribunal accepts that the applicant thinks it desirable to own a silencer, the Tribunal does not find that the applicant has demonstrated a genuine reason as to the granting of a permit for a silencer.

31. Based on the evidence in this case, the Tribunal does not find that the evidence establishes that the applicant requires a silencer for recreational or sporting purposes or for pest and vermin control.

32. In Marando Tribunal held that culling of feral animals/vermin is not a genuine reason contemplated by the Act. I also accept that conclusion in this case. The Tribunal accepts that the applicant has an unblemished record, however the Tribunal is not satisfied that the evidence establishes that the possession of a silencer is necessary or required.

33. The Tribunal is not satisfied that the applicant has satisfied the requirements of s 11 and the decision of the Commissioner should be affirmed.

Orders

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: 27 November 2018