Martindale v Commissioner of Police, NSW Police Force [2026] NSWCATAD 79;

The possession and use of suppressors is an essential part of the contracts I have obtained. It is necessary that I have a suppressor if I am going to be able to fulfil my contractual duties and the use of a suppressor is directly required for me to undertake this type of work.

(7) The applicant also provided a letter dated 1 October 2025 from the accountant stating that the applicant has been engaged as a contract shooter only for financial years ending 2022, 2023, and 2024 and has recorded net profits in each of those years of, respectively, $20,000, $3,662 and $4,776. He has not received income in the year ended 2025 as he is transitioning the business to a professional operation. It is also stated that he has outsourced work to another professional shooter "as he is not able to fulfill these contract engagements at present".

(8) There are also annexed a number of letters of property owners saying variously:

(a) it is necessary that, "suppressed fire arms are used for the numbers of feral pests shot": 6 October 2025;

(b) "We have offered shooting contract to Joe Martindale: It is necessary for a silencer to be used while carrying out these services on our property": 6 October 2025

(c) "As per our contract signed 18/1/25, I have indicated ... a silencer is a necessity for the reasons we have already been through. ... To Be Clear as discussed when I signed the contract No Silencer No Contract. The Silencer is Necessary for your services being more productive & the well-being of my employees". Undated.

(d) "Ah Joe, It is necessary to complete the contract with the use of a suppressor at 110 Hunter St Newcastle. ...: 6/10/25"

(e) "On the 30/1/2025 I signed 3 letters confirming I preferred the use of a suppressor for the reasons stated. I now believe the right terminology is necessary. ... A suppressor is necessary as part of, and to, complete the contract afforded to Joe Martindale: 6/10/25

(9) The applicant also served a statement of Aaron Mark Carey, dated 30 September 2025. Mr Carey stated that he applied for the prohibited weapons permit at the same time as the applicant, and they had undertaken the same firearms courses together. He considers that the use of a suppressor is necessary in commercial shooting as it permits greater numbers to be eradicated more quickly and it is "both more humane and efficient". It also minimises noise and minimises effects on neighbours, which "enhances the economic potential and effectiveness".

(10) Mr Carey stated that the applicant engaged him to act as the contract shooter for his contract in Hunter Street Newcastle (pigeon eradication) because he did not have the use of a suppressor. He also stated that the licensing police in the Newcastle area have "encouraged the use of suppressors" as it minimises the potential disturbance in the area.

1. Shortly before the hearing, the applicant provided a further statement (in reply) dated 13 January 2026, in which he stated:

(1) He had not completed any pest control work since 9 October 2024, when he applied for his business/employment/other category of licence and he has not earned any income in that capacity since that date.

(2) His prior shooting work was not a professional set up and he did not have a contractual relationship with landowners; his main source of income to date has been his plumbing and roofing work.

(3) He sought to rely on videos (attached to his statement) that he contended "supports [his] opinion that the use of a suppressor is a necessity for the operation of [his] business".

(4) "Prior, Millers Creek was the only property that I earnt money by weekend and casual work". But he also stated that "The use of a suppressor takes the contract shooting to a different specialised service that I would be able to offer, distinct from my previous casual shooting on the one property".

(5) He contended that the "business cannot be operated on a viable basis without the use of a suppressor".

(6) He disagreed with Senior Sergeant Schey's opinion that the use of a suppressor is an operational convenience. In his view, "it is an operational necessity due to the way that the business is to be operated and the fact that the contracts which I have in place is subject to a suppressor being used".

1. Attached to that statement was a letter dated 13 January 2026 addressed to "To whom it may concern" stating that Ken Knight, owner of Well Dunn, had engaged the applicant to "undertake humane feral animal Eradication" at the property, and the contract will be reviewed after 5 years. It was expressed to be conditional: "Services are to be carried out at night with thermal night vision and suppressed weapons as previously discussed".
2. Also attached was a letter dated 6 October 2025 from David Heywood which authorised the applicant to conduct a pigeon cull at a property in central Newcastle. The letter concluded: "According to those procedures [referring to those previously outlined by the managing agents of the property], the use of a sound suppression device (silencer) as well as night vision and thermal imaging scopes are necessary to complete these works".
3. The applicant also sought to adduce evidence by way of a number of videos, a small number of which were shown to the Tribunal, while Sergeant Schey, a witness for the respondent (see below) was giving oral evidence.
4. The applicant's solicitor filed written submissions with the Tribunal on 12 November 2025. Those submissions reiterate the applicant's contention that the type of work he is seeking to undertake requires the use of a suppressor - it is a "necessary part of his contractual obligations and without it, he cannot carry out this particular work himself".

1. The respondent filed a bundle of material pursuant to s 58 of the ADR Act on 9 September 2025, as well as a supplementary bundle filed on 23 January 2026.
2. Included in that material was information from the Commissioner that had been relied upon in the granting of his previous firearms licences, as well as the application for the genuine reason licence and the application for a permit for the use of a silencer/suppressor under the Act.
3. Also included were the primary decision, refusing the application, and the internal review decision, affirming the refusal decision. It was acknowledged in that decision that the applicant currently held a Category AB firearms licence and was "not adversely known for any manner of offending conduct" and that he had held a firearms licence since 1999 without any incident.
4. However, in order for an "application to possess a prohibited weapon for business/ employment purposes to be successful, an 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".
5. The decision maker referred to Tribunal decisions to the effect that the applicant needs to demonstrate that it is necessary, rather than more convenient or beneficial to the applicant, referring to Formosa v Commissioner of Police, NSW Police Force [2024] NSWCATAD 132 (Formosa) at [28]. There was reference to the fact that the applicant's accountant had confirmed that he had been carrying on contract shooting services since at least 2022 and anticipated receiving income from the provision of those services in future financial years. The decision maker also noted that the applicant had provided a number of letters with his application that were found to show that he was able to conduct his business without the need to use a suppressed or silenced firearm.
6. The respondent also provided evidence from 2 members of the NSW Police Force as follows.

1. Sergeant Prescott stated that he had no involvement in the decision to refuse the application. The applicant had claimed that he had engaged with Sergeant Prescott who was "supportive and agrees for the need of the use of suppressors". Sergeant Prescott recalled the applicant attending the Waratah Police Station on two occasions and recalled that he had applied to use a suppressor (silencer) while pigeon shooting. He did not recall supporting the application, and stated that as a general position, Police do not support the use of suppressors. He recalled conceding that he could see the benefit from a business perspective in that using a suppressor may alleviate community concerns/complaints.
2. Sergeant Prescott also responded to the claim made in Mr Carey's statement about discussions with "the licensing police in the Newcastle area [who] have encouraged the use of suppressors ...". He noted that Mr Carey falls within the Lake Macquarie Police District, not the Newcastle district. He had no recollection of any discussion with Mr Carey and did not agree with the statement that the use of suppressors is encouraged. He was advised that one licence holder in Newcastle City Police District holds a permit for suppressor use.
3. His position is that he supports prohibition "because suppressors reduce detectability, increase misuse risk, complicate regulation and are inconsistent with NSW preventative, harm minimisation framework".

Evidence of Seargeant Edward Schey, Senior Sergeant, Ballistics investigation Section, NSW Police Force

1. Sergeant Schey, who is a Forensic Ballistics Investigator, gave expert evidence for the respondent, based on his specialised knowledge and experience. He was also cross examined during the hearing.
2. He described a silencer as a device that is either attached to the muzzle or covers a portion of the barrel of a firearm and is designed to reduce the noise associated with the discharge of the firearm. The technical term is "suppressor". A suppressor does not silence the firearm but it can suppress, muffle or reduce the noise created on discharge.
3. He gave evidence about the range of types of suppressors that are available and how they work to reduce sound in addition to how they may impact on the accuracy of a firearm.
4. He then turned to the evidence given by the applicant, specifically the evidence that a suppressor was a necessary tool to be used in the eradication of vermin. He referred to the applicant's evidence to the effect that suppressors were required in all of his contractual arrangements.
5. He noted that no specific information had been supplied as to the type of suppressor the applicant was applying to use but he identified some that he stated would be appropriate for some of the firearms held by the applicant. As to the efficiency or economic effectiveness for which the applicant contended, he indicated some technical concerns about the effectiveness of using a suppressor in the context of the firearms the applicant owned. used by the applicant and contended that the use of a suppressor would not effectively solve the issues raised by the applicant.
6. As for the business arguments raised by the applicant, he opined:

(1) A skilled and experienced shooter performing this core function can perform it effectively without a suppressor and if using subsonic ammunition, there is always downrange noise that will disturb wild animals;

(2) In relation to the applicant's reference to night vision and thermal imaging, he agreed that would give a shooter an advantage over one using only "optics and spotlights".

(3) He commented on the applicant's statement to the effect that "if a permit is refused it limits his ability to fulfil contracts that recommend the use of suppressors", that this demonstrated that it was not an operational necessity as it would limit, but not eliminate that ability.

(4) As for concerns expressed about "spooking' and potential stampedes and destruction of fences, there was no evidence of these matters.

(5) In relation to concerns about hearing loss, there is a component of the training program of the Sporting Shooters Association of Australia that deals with the mandatory use of hearing protection when shooting. Ear muffs provide hearing protection.

1. Sergeant Schey also responded to Mr Carey's statement about the "necessity" of silencers by noting that what is said indicates that a suppressor is not a necessity. He also notes that in relation to Mr Carey's statement that he has been subcontracted to shoot pigeons in Hunter Street, Newcastle, this is a mixed use urban area with commercial, retail and residential buildings and the use of firearms in such an area would be "extremely high risk from a public safety perspective".
2. Sergeant Schey also noted that the latest generation of air rifles may keep the noise generated low and that they may be fit for the purpose of destruction of small, medium and large animals. He also stated that these firearms are specifically designed for hunting or vermin control. In conclusion, he stated:

It is difficult to say without some validated scientific studies whether a suppressor makes a difference to the number of vermin that can be killed at any one time. The fact remains that whether there is a suppressive fitted and front slash or whether there is subsonic ammunition used, there is always downrange noise that will disturb wild animals that are likely to be hyper vigilant to threats.

1. Under cross examination, Sergeant Schey reiterated that use of an airgun could achieve some of the effects the applicant was seeking and he indicated that he was unable to comment on some of the video material shown to him as it was insufficiently specific.

1. The key issue before the Tribunal is whether the applicant has a genuine reason to possess or use a silencer/suppressor because he can demonstrate that it is necessary in the conduct of the applicant's business or employment to possess or use a silencer/suppressor.
2. Thus there are two matters of which the Tribunal must be satisfied:

(1) That the applicant is conducting a business; and

(2) That it is necessary in the conduct of that business to possess or use a silencer/suppressor.

1. While the applicant provided a number of letters that he described as contracts, he acknowledged in his written evidence and in the hearing that the business he wishes to operate has not yet been established. To date, he has only undertaken commercial vermin shooting on one property. However, it is his intention to set up a commercially viable business. It is his belief that obtaining a permit to use a silencer/suppressor is a necessary step in the creation of and success of the proposed business.
2. The Appeal Panel in Commissioner of Police, NSW Police Force v Allen [2016] NSWCATAP 148 noted at [22] that while there was no legal onus on the applicant for review, where are an applicant is required by the statutory framework to demonstrate certain matters, the applicant will bear an evidentiary onus (see also Marando v Commissioner of Police, NSW Police Force [2018] NSWCATAD 29 at [72]; Formosa at [11]; [32] and Burke at [17], extracted above at [11].
3. The respondent does not dispute that the applicant is carrying on a business of professional shooting, as it acknowledges in its written submissions, referring to some of the correspondence from landowners/managers referred to above.
4. The Tribunal notes that the letters referred to as "contracts" by the applicant are in fact indications of future intentions/hopes, as acknowledged by the applicant. Even so, there is evidence from the applicant's accountant that he has earned money in that pursuit in the 2022, 2023 and 2024 years. For those reasons, and in light of the respondent's concession in that regard, the Tribunal finds that the applicant is carrying on a business of professional shooting.

Is it necessary for the conduct of the applicant's business for him to possess or use a suppressor/silencer?

1. The cases considering s 11 of the Act have all discussed the meaning of the word "necessary "in the context of the legislative scheme. In Formosa, the Tribunal referred at [32] to the decision of the Appeal Panel in Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 10 as follows:

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].

1. The Tribunal also noted in Formosa at [28] that Basten JA had said, in Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim (2012) 83 NSWLR 52; [2012] NSWCCA 125 at [46] that "The meaning of 'necessary' "depends on the context in which it is used''. In Burke, the Tribunal (at [73]) set out a definition of the word "necessary" from the Macquarie Dictionary but then expressed caution about the use of dictionary definitions when considering the meaning of words in a statute. It continued:

As Justice Leeming noted in South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [79]:

"A dictionary will give a range of meanings of a word. The task of a court is to identify, from text, context and purpose, the particular meaning that a statutory provision bears. The function of a dictionary and the function performed by a court construing a statute are utterly different. It must be borne in mind that the meaning of any word used in a statute depends on the context and purpose of the legislation in which it appears".

The context in which "necessary" is used in the business/employment genuine reason, along with the purposes for which the WP Act was enacted, remain the surest guides to the meaning of the term. I approach the determination of the correct and preferable decision with this in mind.

1. The clear objects and principles of the Act are to impose strict limits on the use and/or possession of prohibited weapons in the interests of public safety. This requires the term "necessary in the conduct of the applicant's business" to be read strictly as, save where some exception applies - in this context, if the applicant were to establish that it is currently necessary to the conduct of the applicant's business - the act imposes a statutory obligation to refuse a permit for a prohibited weapon. Consistent with what is said in s 11(2)(b), the applicant must provide evidence that the prohibited weapon is essential, indispensable, imperative or directly required: Marando at [52]; Burke at [76] before a permit can be granted.
2. The Tribunal finds, based on the applicant's evidence, that the applicant has conducted commercial vermin and pest eradication shooting, on one property to date. He did not have nor use a silencer/suppressor for that work. Since that time, he has provided letters from a number of landowners that have indicated that they will engage him to undertake that work in future. In the first tranche of letters (30 September 2024), no mention was made of a suppressor. In the second tranche of letters (dated 30 January 2025), it was stated that a suppressor/silencer was "recommended/preferred". On 6 October 2025, after the applicant's application had been refused on internal review, the applicant provided three letters stating that the suppressor is "necessary". In two of those letters it is stated that "the right terminology is "necessary" rather than recommended/preferred".
3. In closing submissions, it was put for the applicant that it is obvious that the use of a suppressor is necessary "because the documents say it is" for which reason it is more than a convenience: it was contended he would not get the work if he did not have a suppressor and the Tribunal should so find as it is apparent from the documents presented.
4. The Tribunal gives little if any weight to those expressed views. First, they are, on the applicant's evidence, mere statements of intention (as opposed to contracts) as the applicant has not commenced doing any business with the signatories. The statutory scheme uses the present tense when imposing the criterion that "it is necessary in the conduct of the applicant's business or employment" (emphasis added). This manifestly requires consideration of the applicant's current business operation, rather than a future hypothetical business he is keen to establish.
5. Second, even if those expressed views could be accepted as indicators that the work from a particular client or clients would not be available (in the future) but for the applicant being able to use a suppressor/silencer, that would not itself be determinative. As the Tribunal noted in Formosa at [32], "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".
6. The Tribunal finds that the applicant has not met his evidentiary burden of satisfying the Tribunal that it is necessary (ie essential or indispensable) for him to use a silencer/suppressor in his vermin and pest eradication business. He has conducted that business in the past without doing so and while the Tribunal accepts that he would prefer to do so differently in future, that is insufficient to meet his evidentiary burden of establishing, in effect, that the business could not be conducted in any other way.
7. In those circumstances, the Tribunal finds that the correct and preferable decision is to refuse to grant his application for use of a prohibited weapon.

1. For the reasons set out above, the decision not to grant a prohibited weapons permit (to use a silencer/suppressor) is affirmed.

(1) The decision of the Commissioner of Police to refuse to issue the applicant with a permit under the Weapons Prohibition Act 1998 (NSW) 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.