Burge v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2018-10-23

Summary

Mr Burge, already the holder of a firearms licence, applied for a permit to use a firearms silencer for recreational/sporting purposes. His application was refused by the Commissioner for Police. Mr Burge now seeks a review of this decision.
Mr Burge has nominated two reasons for seeking a silencer:

to enable him to engage in vermin control, namely the culling of feral deer; and
to enable him to engage in recreational hunting;

Jurisdiction

A person can apply to this Tribunal to review a decision to refuse a permit for a prohibited weapon. (section 35 of the Weapons Prohibition Act 1998)

Issues

The following issues are before the Tribunal:

Is engaging in vermin control a genuine reason for seeking a silencer permit?
Is engaging in recreational hunting a genuine reason for seeking a silencer permit?
If so, can Mr Burge demonstrate that he requires the possession or use of a silencer to engage in recreational hunting?

Is engaging in vermin control a genuine reason for seeking a silencer permit?

According to Mr Burge, he needs a silencer permit to enable him to engage in vermin control (the culling of feral animals) on various rural properties when he hunts, none of which are owned by him. The properties include those of Mr Shane Lyons, Mr David Rothwell and Mr Clyde Thomas, each of whom have provided statements that Mr Burge's vermin control is beneficial to them.
Mr Burge gave evidence that he could shoot a deer from distances of six to seven hundred metres but that, on Mr Thomas's property in particular, he is unable to get within three or four hundred metres of the animals before they shy away. He told the Tribunal that if he were allowed to fit his high calibre firearms with a silencer, the reduction in noise would stop the deer from shying away and enable them to be more effectively culled. He was not seeking a silencer for his low calibre firearms, which he uses to hunt smaller animals such as rabbits and foxes.
As set out above, vermin control is neither a genuine reason set out in the Table to subsection 11 of the Weapons Prohibition Act nor is a reason prescribed by the regulations. Consequently there are no requirements specified for the possession or use of a prohibited weapon for vermin control.
The Commissioner of Police and, on review, this Tribunal, may, however, consider whether other reasons put forward by a person amount to genuine reasons for the granting of a prohibited weapons permit.
In accordance with Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29, I accept that, in these circumstances, the minimum requirements for the possession or use of a prohibited weapon such as a silencer would be that Mr Burge requires or needs to possess or use it for vermin control.
Because of the size of deer and the need to achieve the ethical kill, Mr Burge gave evidence that to shoot deer he needs to use a higher calibre (and hence more powerful) firearm, the noise from which scares the deer away before they can be culled. According to Mr Burge, if a silencer were attached to his higher calibre firearm, the noise would be reduced and the deer less likely to shy away. It is also his evidence that any noise emanating from a firearm fitted with a silencer would disperse such that it would confuse the deer thereby making them easier to target.
Mr Clyde Thomas is the owner of a rural property where he runs sheep, domestic deer and cattle. Mr Thomas is also a quadriplegic. As a result of wild deer smashing his fences, Mr Thomas lost 15 domestic deer last year. He relies on Mr Burge to cull the feral deer as well as feral dogs, foxes, feral cats, rabbits and wild pigs. Over the past three or four years, Mr Thomas estimated that Mr Burge would have hunted on his property about ten times. He agreed that feral deer are easily startled, even by the snapping of a twig.
Mr Alexander Krstic is the director of a company primarily engaged in the management of wildlife and vertebrate pest species whose main role is as a professional hunter and licensed wildlife controller. He is also a former police officer and a firearms consultant and is licensed to use, carry and possess silencers.
Mr Krstic gave evidence that the reaction of animals to noise emitted from the discharge of firearms fitted with silencers varied considerably according to all the prevailing circumstances. He expressed the view that where feral animals were concerned, the discharge of any weapon fitted with a silencer generally results in evoking a high level of alertness, alarm and fright and flight behaviour.
Mr Krstic told the Tribunal that he is would only shoot at a deer from a distance of up to a hundred metres. It is his view that five hundred metres was not a practical range for shooting a deer.
In terms of vermin control, it is Mr Krstic's view that the use of firearms alone - whether fitted with a silencer or otherwise - without implementing other appropriate methods would not be efficient over the long term.
Having considered the evidence of Mr Burge, Mr Krstic and Mr Thomas, I am not satisfied that the difficulties Mr Burge has experienced with culling deer can be solved by use of a silencer. I accept the evidence of Mr Krstic that the use of a silencer is unlikely to reduce animal disturbance or the tendency of feral deer to flee at the sound of a gunshot. I also accept the evidence of Mr Thomas that deer are particularly sensitive to even small noises. On the evidence before me, I am not satisfied that that the use of a silencer would overcome the feral deer's acute sensitivity to noise, nor am not satisfied that any confusion by the scattering of noise potentially produced by a silencer would stop deer from shying.
For these reasons, I am not satisfied that the use of a silencer would necessarily assist Mr Burge in culling feral deer. I find therefore that Mr Burge does not require or need to possess or use a silencer for vermin control.
On this basis, I cannot be satisfied that Mr Burge's engagement in vermin control constitutes a genuine reason for seeking a silencer permit.

Is engaging in recreational hunting a genuine reason for seeking a silencer permit?

Mr Burge hunts feral animals and in his application form, he declared that he was seeking a silencer for recreational/sporting purposes. Although he sees value in the hunting he does on rural properties, he is not seeking a silencer for business or employment purposes.
As set out above, recreational/sporting purposes is listed as a genuine reason for seeking a prohibited weapon permit in the Table to section 11 of the Weapons Prohibition Act. The words 'recreational' and 'sporting' are not defined in the Act. In constructing the meaning of these words, the Tribunal should strive to give them their ordinary and natural meaning, unless the context provides otherwise. Thompson v Judge Byrne (1999) 196 CLR 141.
Included in the definition of recreation in the Shorter Oxford Dictionary (6th edition) is the following: 'an activity or pastime pursued, esp. habitually, for the pleasure or interest it gives.' Included in the definition of sport is the following: 'the recreation of hunting, shooting, or fishing.
On the evidence before me, I am satisfied that Mr Burge regularly engages in hunting, which involves shooting feral animals on a number of rural properties. I am satisfied that this recreational hunting activity meets the definition of a 'recreational or sporting purpose' and is therefore a genuine reason for seeking a silencer permit.

Can Mr Burge demonstrate that he requires the possession or use of a silencer to engage in recreational hunting?

Mr Burge gave evidence that he hunts on approximately twenty farming properties where he culls wild animals, predominantly deer and wild pigs, as well as dogs, foxes and rabbits. He does not hold an interest in any of the properties on which he hunts. He gave evidence that he does not charge for his services but that he is allowed to keep whatever meat he wishes to take with him. In a trip he undertook earlier this year, Mr Burge advised the Tribunal that he and his partner shot 1408 wild pigs, four wild dogs and three cats in less than three days. He told the Tribunal that he was seeking a silencer only to use on high calibre firearms to kill larger animals like deer and wild pig, and that he did not need a high-calibre rifle to kill rabbits or dogs, or for target shooting which he engages in on occasion.
In order to pursue his recreational activity of hunting, Mr Burge is seeking a silencer for the following reasons:

for protection against hearing loss;
to reduce disturbance to stock and local residents; and
to achieve an ethical kill.

The word 'requires' is not defined in the Weapons Prohibition Act. In constructing the meaning of the word, the Tribunal has looked to its dictionary definition.
The Shorter Oxford Dictionary (6th edition) defines the word 'require' to mean, relevantly, to be necessary to do something.
The Macquarie Dictionary (3rd edition) defines 'require' as to make necessary or indispensible; or to have need of.
As a matter of ordinary meaning, therefore, 'requires' means something that is needed, necessary or indispensible.
In considering whether a silencer is required, or necessary to Mr Burge's recreational activity of hunting, guidance can be gained from the Appeal Panel in Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 which considered the construction to be given to the word 'necessary' in the phrase 'necessary in the conduct of the applicant's business (contained in the Table to s11 of the Weapons Prohibition Act).
In considering the phrase, the Appeal Panel referred to the decision of Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10, which had considered the phrase 'necessary in the conduct of the applicant's business' in a comparable legislative context, namely the Firearms Act 1996.
Mr Osborne was a travelling firearms dealer who applied for a licence to carry a pistol to deter criminals from stealing his firearms. As with permits for silencers, Mr Osborne needed to satisfy the Commissioner of Police that possessing the pistol was "necessary in the conduct of" his business. The Appeal Panel held that the critical issue was not whether "necessary" meant 'reasonably' necessary or 'absolutely' necessary. The issue was whether the fact that Mr Osborne chose to travel alone carrying firearms in isolated locations meant that it was necessary for him to carry a pistol.
The Appeal Panel concluded that it was not necessary because Mr Osborne could have conducted his business in a way that did not expose him to such a high risk of robbery and found that the possession of a pistol was not directly required of the business or employment and that it was not essential to the process of dealing in firearms to do business in this way.
In making these findings, the Appeal Panel focused on the way the business was conducted and held 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.
Using this reasoning, I must now consider whether a silencer is necessary in the context of the core features of Mr Burge's recreational activity of hunting, not in the context of the way he chooses to conduct the business. To do this, I will consider each of the reasons put forward by Mr Burge to explain why he is seeking a silencer in order to pursue his recreational activity of hunting game.

Protection against hearing loss

Mr Burge gave evidence that he has permanent hearing loss as a result of hunting following a failure to correctly fit his hearing protection and that he also suffers from intermittent tinnitus. It is his view that using a silencer will alleviate the sound produced from his shooting and thereby mitigate any further loss of hearing he may incur. Mr Burge also gave evidence that his glasses frames interfere with the proper seal of his earmuffs against the side of the head thereby reducing the benefit of his ear protection.
According to the report of his general practitioner, Dr Ludiwici, Mr Burge's early hearing loss and intermittent tinnitus is likely to be due to shooting and is deteriorating. It is Dr Ludiwici's opinion that the rate of deterioration will increase over time as he continues to shoot.'
The clinical audiologist, Mr Benjamin Hoddinott, provided an expert report on noise-induced hearing loss and silencers. Mr Hoddinott agreed that use of a silencer may reduce the risk of hearing damage to a shooter.
In relation to the use of ear protection when shooting, Mr Hoddinott gave the following opinion: In the best case scenario, where the firearm gunfire is measured as 132 dB and a single gunshot is fired, there would be no need for hearing protection or a suppressor. In the worst case scenario, with a gunfire level of 171.5 dB, even the best suppressor would not provide adequate protection for auditory damage. Therefore properly fitted hearing protection would be required in order to reduce the peak output level to below the safe exposure limit (140 dB(C)).
He agreed that glasses may disrupt the proper seal and placement of hearing protection and therefore reduce its protection. In this case, he recommended the use of earplugs designed for impulse noise. He noted that modern active noise cancelling headphones or earplugs are often recommended for people involved in gun sports, because this type of product enables lower intensity sounds - such as speech - through to the ear, and only block impulse sounds such as gunshots.
Detective Senior Sergeant Schey, who provided an expert opinion on the use of silencers, agreed that an effective silencer (or suppresser, as he described it) may reduce the need to wear earmuffs when using a firearm. He expressed the view, however, that the risk of hearing loss in using a firearm may be managed in other ways than the fitting and use of a silencer and recommended the use of earmuffs which can also be supplemented by ear plugs.
According to Detective Senior Sergeant Schey, who uses earmuffs that are amplified and noise attenuating: due to a hearing deficit I set the volume control on maximum [which] amplify ambient sounds significantly and they increase my general hearing ability. In turn they cut out both loud sound pressure impulses and continuous excessively loud sound. These earmuffs work well both with eye protection and headwear without any issue or noticeable discomfort aside from some sweating in hot weather.
In the light of the evidence provided by Mr Hoddinott and Detective Senior Sergeant Schey, I am satisfied that there are effective hearing protection devices available so as to negate the need for a silencer to protect the applicant's hearing loss. I accept the evidence of Detective Senior Sergeant Schey that there are also earmuffs on the market that can be comfortably worn with glasses. For these reasons, I am not satisfied that Mr Burge requires a silencer permit for protection against hearing loss.

To reduce disturbance to stock and to local residents

Because Mr Burge shoots on multiple properties with livestock and horses within close proximity to where he hunts, he is requesting a silencer permit to reduce disturbance to livestock and to local residents. Letters from residents who live close to where Mr Burge hunts confirm the noise of the gunfire and the disturbance this makes.
In considering the extent to which a silencer reduces the sound emanating from a firearm when it is fired, the audiologist Mr Hoddinott stated that the sound from discharging a firearm arises from two primary component sources:

Sound is generated by the rapidly expanding gasses in the barrel behind the bullet in the period immediately following firing; and
Where a shooter is using supersonic ammunition (i.e., which travels faster than the speed of sound), a 'sonic boom' or 'sonic crack' is generated as the bullet breaks the sound barrier. The component of the sound will continue to be generated at the location of the bullet, for as long as the bullet continues to travel at speeds above the speed of sound. When a bullet speed drops below the speed of sound, the stability of the projectile is compromised and, therefore, the accuracy of the shot is impeded. Therefore, for supersonic ammunition to achieve the purpose of hitting a target, it must remain above the speed of sound for the entire shot, and, as a consequence, produce a 'sonic boom' or 'sonic crack' for the duration of its flight.

According to Mr Hoddinott, a silencer (or suppressor, as it is also known) can only address the first source of firearm noise by adding a larger chamber for the compressed gasses to expand and escape. Any reduction in attenuation values may depend on the quality of the silencer, the firearm it is applied to and the environment in which it is used. Sound levels measured remote from the shooter are impacted widely by a number of factors, such as distance from the shooter, the angle from the muzzle, the acoustic environment, and whether or not supersonic ammunition is used.
In conclusion, Mr Hoddinott found that: Suppressors can reduce some of the noise generated by the release of expanding gasses from the chamber of a firearm. The level of this attenuation is highly variable, and dependent upon the specifics of, and the combination of, the firearm and the suppressor…This attenuation of the suppressor would also have a positive impact upon the noise exposure of parties to the side and behind the shooter (where the bullet gets further away after it leaves the muzzle.) There appears to be little attenuation benefit for people or animals forward of the muzzle (where the bullet gets closer after it leaves the muzzle).
According to Detective Senior Sergeant Schey, the noise created during the discharge of a firearm originates from a number of events:

the fall of the hammer (or firing pin);
the detonation of the primer;
the 'wave' of propellant combustion gasses (muzzle blast)
the flight noise of the bullet travelling at or above the speed of sound; and
the extraction, ejection and chambering of a live cartridge (dependant on firearm mechanisms).

According to Detective Senior Sergeant Schey, the noise itself that emanates upon discharge of a firearm can be categorised as follows:

the pressure wave (caused by the rapid expansion of gases from burnt propellant - where the gases velocity exceed the speed of sound - which emits a loud bang or gunshot). According to Detective Senior Sergeant Schey, a well-designed silencer will reduce this pressure wave.
Supersonic crack (described as a ballistic cracking noise or whiplash noise of a bypassing bullet where it exceeds the speed of sound). According to Detective Senior Sergeant Schey, no silencer can eliminate this sound. The supersonic crack can be eliminated by using sub-sonic ammunition (i.e. where the bullet travels below the speed of sound). The alternative use of 'porting' high pressure gases throughout the length of the barrel needs to be done in tandem with the use of a silencer and, according to Detective Senior Sergeant Schey, is generally limited to specialised military/law enforcement rifles and submachine guns.
flight noise (the high-pitched whirring sound of a bullet in flight). According to Schey, no silencer can eliminate this sound.
the mechanical action of a firearm (noise from the hammer of a firearm dropping, the pin being released or action of the slide). According to Detective Senior Sergeant Schey, no silencer can eliminate this sound.
sound of the discharged bullet hitting an object (the sound of the impact will depend on factors such as calibre, bullet mass and velocity and the surface the bullet impacts.) According to Detective Senior Sergeant Schey, no silencer can eliminate this sound.

Although Detective Senior Sergeant Schey agrees that in some cases a silencer can reduce the sound emanating from a firearm during discharge, the degree of reduction of noise from the discharge of a firearm will depend on silencer type, firearm type, calibre, ammunition type and external surroundings including weather, altitude, structures, vegetation and topography.
In Detective Senior Sergeant Schey's view, the use of a silencer by the applicant would not solve issues of disturbance to livestock: If supersonic ammunition is used then the noise of the supersonic crack, flight noise, mechanical action of the firearm and the sound of the bullet hitting the target cannot be eliminated with the use of a suppressor. If subsonic ammunition is used then the flight noise, mechanical action of the firearm and the sound of the bullet hitting the target cannot be eliminated.
According to Detective Senior Sergeant Schey, where a bullet travels below the speed of sound (subsonic), the bullet loses kinetic energy. Without sufficient kinetic energy, 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).
According to Detective Senior Sergeant Schey, in relation to noise disturbance, a silencer would have no effect on the downrange noise due to the supersonic crack, flight noise and sound of the discharged bullet hitting an object provided supersonic ammunition is used.
Detective Senior Sergeant Schey told the Tribunal that if a bullet is travelling at a supersonic velocity, the supersonic crack of the bullet and the bullet hitting the target would be the same whether or not a silencer is attached to the firearm.
Having considered the evidence of Mr Hoddinott and Detective Senior Sergeant Schey, which I accept, I am not satisfied that a silencer would solve the problems of disturbance to livestock and the local population. For this reason, I am not satisfied that using a silencer would enable Mr Burge to engage in his hunting feral animals without disturbing stock and local residents.

To achieve an ethical kill

Mr Burge gave evidence that a silencer improves the velocity and accuracy of bullet placement on animals thereby leading to a more humane kill. It would also enable him to target deer from distances of up to six or seven hundred metres.
Mr Krstic told the Tribunal that he whilst he would shoot a deer from a distance of a couple of metres to a hundred metres, he wouldn't fire at a deer from a distance of five hundred metres. This is because it was not a practical range for achieving the humane kill of a deer. The target area, namely the deer's brain, is the size of an apple and to have any chance of a humane death it is better to aim from a closer distance.
In his experience with the testing and use of firearms fitted with silencers, Mr Krstic has no evidence to support Mr Burge's contention that the accuracy of a firearm is increased when fitted with a silencer.
It is the opinion of Detective Senior Sergeant Schey that depending on its quality and the way it is fitted, a silencer may in fact decrease the accuracy of a bullet. He was not aware of any evidence to indicate that a silencer can increase the velocity of a bullet.
On the evidence before me, in particular that of Mr Kristic and Detective Senior Sergeant Schey, which I accept, I am not satisfied that Mr Burge requires a silencer in order to achieve ethical kills when hunting.

Conclusion

On the evidence before me and in light of the findings I have made above, I am not satisfied that a silencer is necessary in the context of the core features of Mr Burge's recreational activity of hunting.
Whilst Mr Burge has provided reasons as to why a silencer would improve the circumstances in which he chooses to engage in recreational hunting - as considered under the headings above - he has not satisfied me that he requires a silencer to engage in the activity of recreational hunting. Mr Burge cannot create the necessity (for example, that he has to use high calibre guns so he can shoot at a greater distance). Rather the necessity should already be there.
Ultimately, the question for me is whether Mr Burge is able to establish that the possession and use of a silencer is required for his recreational hunting activities.
Mr Burge has carried out hunting activities on a regular basis since 2014 and is continuing to do so. On the evidence before me, it is clear that Mr Burge's recreational activity of hunting can be carried out without a silencer. He can shoot rabbits, foxes and dogs without a silencer and can engage in target practice. I am also satisfied that he has hunted larger game including deer and wild pigs without a silencer.
Mr Burge's personal preference for shooting with a silencer is insufficient to establish that Mr Burge's recreational or sporting hunting activity requires the possession or use of a silencer.
I am not satisfied that the possession and use of a silencer is required for Mr Burge's recreational hunting activities. Accordingly it is my view that the decision to refuse his application for a permit to possess and use a silencer is the correct and preferable one and therefore it should be affirmed.

Public interest

Given my findings above it is not necessary to consider whether the respondent has established that it would be contrary to the public interest to grant the permit sought.

Orders 1. The decision of the respondent on 4 January 2018 to refuse the applicant a Prohibited Weapon (Silencer) Permit is affirmed

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 November 2018

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Judgment (14 paragraphs)

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