Prochilo v Commissioner of Police

Background

1. On 6 August 2018 Mr Prochilo lodged an application for a Category AB forearms licence for the genuine reason referred to in the application of 'Recreational hunting / Vermin Control' on the basis that he had permission from an owner of rural land. On 13 January 2020 the Commissioner's delegate refused the application on the basis that it was not in the public interest for Mr Prochilo to be issued with the licence having regard to the material that NSW Police held on Mr Prochilo and s 11(7) of the Firearms Act 1996.
2. A Notice of Refusal issued on 3 January 2020 providing a statement of reasons for the refusal and setting out Internal review rights. Mr Prochilo availed himself of the right to Internal Review and on 14 February 2020 provided a detailed (four page) statement addressing the matters relied upon by the delegate in the Notice of Refusal. The Internal Review was determined on 25 February 2021 whereby the decision was affirmed for the reason set out in summary at [2], [5] and [6] above. The process from lodgement to refusal on Internal review had taken two and a half years.

Jurisdiction

1. The Notice of Refusal was issued under the provisions of the Firearms Act section 11. Relevantly section 11 provides: 11 General restrictions on issue of licences(cf 1989 Act s 25, APMC 4, 5, 6) (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. …. (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest. (8) The regulations may provide other mandatory or discretionary grounds for refusing the issue of a licence.
2. Section 75 of the Firearms Act provides that a person aggrieved by any of the seven listed actions of the Commissioner can apply to the Tribunal for administrative review of that decision. The first matter listed at 75 concerns refusals to grant a licence application. Relevantly the section provides: Part 8 Applications to Civil and Administrative Tribunal 75 Administrative reviews 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 any of the following decisions - (a) the refusal of or failure by the Commissioner to issue a licence or permit (other than a permit in respect of a prohibited firearm) to the person,
3. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (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.
4. The Tribunal has jurisdiction under the Firearms Act as noted at [10] above.
5. As noted from the section above, an application under s 75 of the Firearms Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The decision under review

1. In the Internal Review the senior delegate made a number of findings of fact including that the applicant was:

• Involved in a fireworks incident in March 2013 for which he was issued an Infringement Notice,
• Police received a report in May 2013 that the applicant had allegedly damaged another person's scooter by throwing it onto a park shade cloth,
• The applicant attempted to open the door of a locked parked police vehicle in June 2013,
• In August 2013 the applicant had a physical altercation with a person who he believed was intimidating his mother and grandmother whilst using an ATM. The applicant intervened and was breached for AOABH,
• In August 2013 the applicant was observed by Police to be swearing in public and was given a 'Move on Direction',
• In April 2014 the applicant was convicted in the Local Court of AOABH arising from the August 2013 incident,
• In May 2015 on appeal to the District Court the AOABH offence was proven and the conviction quashed with a finding of no conviction recorded under s 10 of the Crimes (Sentencing Procedure) Act 1999,
• In November 2016 Police observed the applicant swearing and calling out whilst a fight was taking place in a public place and was issued an infringement Notice for 'Offensive Language',
• In June 2017 the applicant tested positive for cannabis after passing a roadside alcohol breath test and subsequently went to Court.
• In October 2017 the applicant returned a positive alcohol roadside breath test and went to Court for middle range PCA. Both matters were dealt with at Court by convictions, fines and licence disqualifications.

1. The reviewer noted two other matters whereby Police stopped Mr Prochilo's vehicle in August 2020 and smelt cannabis but did not locate any prohibited drugs, as well as an incident in October 2020 whereby Police observed Mr Prochillo attend an address recorded by them as a 'known location for drug activity'.
2. In respect of the 'not in the public interest' to hold the licence grounds, the reviewer placed significant weight on the 2013 AOABH matter. However the reviewer noted that a conviction had not been recorded against Mr Prochilo for that matter.
3. The reviewer also addressed the balance between the individual needs and the public interest, commenting on the financial implications of such a decision. However the reviewer noted that the basis of the application (vermin control on relatives property) appeared to have shifted in the submissions for the Internal Review to 'employment' matters. However Mr Prochilo stated to the reviewer that he is employed by his father on the family farm.

Administrative Review by the Tribunal

1. The applicant filed his application for Administrative review on 5 March 2021. The application was filed within the period provided to lodge an administrative review application with the Tribunal.
2. The commissioner made an application under s 59 of the Administrative Decisions Review Act 1997 (the ADR Act) concerning some of the material that would ordinarily be filed under s 58 of the ADR Act. Those provisions provide: 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (6) If a party to proceedings before the Tribunal seeks a summons under the Civil and Administrative Tribunal Act 2013 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the principal registrar of the Tribunal to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, (c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access. Site footer We acknowledge the traditional owners of this land and pay respect to Elders, past, present and emerging. 59 Objections to lodgment (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document.
3. The s 59 application was appropriately made with the knowledge of Mr Prochilo. Whilst he was not privy to the material that the Commissioner sought to restrict access to he was aware that such material was being relied upon and that the Tribunal would deal with that material according to law. By consent the Tribunal determined the s 59 application on the papers and determined on 28 September 2021 that in accordance with s 59, the Commissioner was not required to file the material subject of the s 59 application. Further orders specifying the nature of the material in administrative identification terms were made on 22 October 2021 and provided to the parties.
4. The open matter was heard over a full day on 15 November 2021 with Mr G Hynes given leave under s 45 of the NCAT Act to be agent for Mr Prochilo. Following that hearing a confidential hearing involving the Commissioner's legal representative was held on 25 November 2021. Like the existence of confidential material, the existence of a confidential application and hearing was open between the parties. Following the confidential hearing both parties were invited to file open written submissions, with submissions closing in January 2022.
5. As noted at [18] above a portion of the hearing was in camera whereby the respondent requested that the Tribunal receive evidence in accordance with s- 75 (5) of the Firearms Act 1996 which provides: (5) In determining an application for an administrative review of any such decision, the Civil and Administrative Tribunal (and any Appeal Panel of the Tribunal in determining any internal appeal against such a review under the Civil and Administrative Tribunal Act 2013): (a) is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other information referred to in section 11 (5A) or 29 (3A), and (b) in order to prevent the disclosure of any such report or other information, is to receive evidence and hear argument in the absence of the public, the applicant for the administrative review and the applicant's representative.

What issues do these proceedings raise for determination?

1. On my assessment the issues are as set out by the Commissioners delegate:

• Is it in the public interest for the applicant to hold a licence?

1. This issue will be determined on the basis of factual findings in this review arising from a consideration of the evidence and law.

Applicant's written evidence

• Exhibit 'A-1' Internal Review Decision/Statement of Reasons 25 February 2021
• Exhibit 'A-2': Statement of R Prochilo (Snr) dated 21/7/2021
• Exhibit 'A-3': Statement of T M Daly 24/6/2021
• Exhibit 'A-4': Reference B P Renwick
• Exhibit 'A-5': Applicant's 8 page response to Respondent's statement of reasons.
• Exhibit 'A-6' : Reference R Lynn

Respondent's written evidence

• Exhibit 'R-1' Documents filed under s 58 ADR Act
• Exhibit 'R-2' Statement of B Nelson, D Prochilo, K Hayes, K Linder, B Hill-Beauchamp and M Gemmell all dated August / September 2013
• Exhibit 'R-3' Open Affidavit of Sgt T.R. McAlpin sworn 7 May 2021.

1. As noted above the Commissioner also relied on confidential evidence which was received by the Tribunal in a confidential hearing. A brief reference to that material is made in these reasons for decision as is a more detailed reference in the confidential paragraphs (below) not for publication / redacted from these open reasons.

Mr Prochilo's evidence at hearing

1. In evidence in chief Mr Prochilo described himself as a 'full time' carer for his grandmother. He was asked about the 'fireworks' incident in 2013. He said he was walking with a group of people towards the pub and that a man on the bridge was handing out fireworks. One person let one of the fireworks off after first placing it on the ground. Mr Prochilo was questioned by Police and handed over two 'tom thumb' fireworks and then received a Criminal Infringement Notice (C.I.N.) relating to an 'explosive device'.
2. In respect of the report of an incident in June 2013 involving the Police car door Mr Prochillo denied that this ever took place.
3. In respect of the 'scooter' incident at the skate park, Mr Prochilo said that a person was there with their scooter and another person (with tools) took the scooter apart. Mr Prochilo said that he never touched the scooter but observed it. Police turned up but did not raise this issue with him at the time.
4. In respect of the significant incident at the ATM where the AOABH charge ensued Mr Prochilo said that the incident took place in town at 9:00am in a predominantly empty main street. Three young adults stood right behind his mother 'almost touching' her. She turned around and asked the man in the group to move back. Mr Prochillo said that his mother got angry with what was going on which was described as the group's intimidating posture and swearing and raising their voices. They were described as being 'right up to her face'. Mr Prochilo's father got out of the car and asked the man to step back. At this time Mr Prochilo also got out of the car. The man raised his hands to fight and Mr Prochillo hit him 'once or twice' prior to the man falling to his knees and then hitting him. Mr Prochillo said that his mother and grandmother were 'terrified' and they all got into the car together and left and went to Shepparton to go to the Bank.
5. Mr Prochilo said that at Deniliquin Local Court he pleaded guilty to AOABH and was given a $1,000 fine. On appeal to the District Court Judge Bennett SC quashed the conviction and imposed an order under s 10 and a 18 month Good Behaviour Bond. Mr Prochillo and that there were no adverse matters in the intervening 18 months and he completed his Bond period successfully.
6. In respect of a swearing incident recorded in August 2013 Mr Prochilo said that he was yelling at his friend who as half a block away because his friend had his pizza. In respect of the 'move on' direction Mr Prochilo said that 'Police tell all people to move on at 3:00am outside the pizza shop.
7. In respect of the incident in 2016 involving Police Mr Prochilo said this also took place at 3:00am where there was a drunk crowd. He was walking up the street on his way home when two officers brought him back to a third officer who issued a C.I.N. for swearing.
8. Mr Prochilo told the hearing about the 2017 RBT incident where he gave a negative alcohol but a positive cannabis return. He said that the roadside drug test was negative and the subsequent test at the Police Station was negative. A third test was sent away and came back 6-8 weeks later 'positive for traces of drugs'. Mr Prochilo gave evidence that the context of him ingesting drugs would have been passive, in that there were some people smoking cannabis earlier at a gathering he was at. Mr Pricilla's evidence was that 'he does not do / use drugs'. He received a section 10 no conviction recorded result at Court.
9. Later in 2017 he was breached for mid range PCA (drink driving). Mr Prochilo said that he was coming back from voting. He had been at the pub and a mate's place the evening prior but had his last drink at 1:00am. His father had picked him at and brought him home that morning. Mr Prochilo said that the Magistrate would not let the matter go to Sydney. The blood test was said to have 'come back with a reading of 0.08 just into the mid range scale' and well below the initial reading.
10. Mr Prochilo responded to another Police report whereby he was pulled over in the early hours of the morning whilst driving and his car was searched. He said that he was not nervous but shivering as it was August and he was forced to stand outside of his car on the roadside for 15 minutes while Police searched him and his car. Mr Prochilo understood that Police believed that they had smelt cannabis and that was the basis that he and his car were searched. He said that police did not find anything nor did they perform a drug test on him.
11. Mr Prochilo addressed the report that in October 2020 he was allegedly observed entering a 'drug location'. He said that he and a friend were walking to a friend's house that they were intending to go to but three Police cars turned up. He said that he never actually went to the house.
12. Mr Prochilo addressed some other matters in his evidence in chief that he maintained were inaccurate or embellished by Police. He said that in respect of the 'drug driving charge' the Reviewer states that he was driving under the influence of drugs. Mr Prochilo said that was not driving erratically or under the influence of drugs. Mr Prochilo was adamant in that he stated that he did not ever accept that he had ingested any drugs knowingly. He said that in addition to obeying the law he had avoided drugs because of a health issue where he told the Tribunal that he had heart surgery when he was younger.
13. He said that his answers to Police were merely examples of answering the general question about how one ingests drugs. He was adamant that he does not do drugs.
14. In respect of why he was seeking a firearms licence Mr Prochilo said that he wanted the licence in order to eradicate rabbits and kangaroos from the wheat farm. His father had had brain surgery to remove a tumour. In addition, Mr Prochilo senior experienced a severe heart attack as well as having only in recent days found out about kidney failure. He would no longer be able to eradicate pests due to his health. There is also the grandmother's farm near Hay and it is 500 acres in size. Mr Prochilo reiterated that he needs the licence to help his father on his farm in Deniliquin as well, as his widowed grandmother in Hay. Mr Prochilo said that the vermin go into the neighbouring Crown land during the day and come into their farms during the night.
15. Mr Prochilo said that they had tried to get roo shooters to work on the property but this was not viable as the professional shooters require 100-200 kills per night. In respect of helping his grandmother Mr Prochilo outlined that she was 89 years old and partially blind. In addition she was in poor health with skin cancers
16. In respect of his own circumstances Mr Prochilo outlined that he was a trainer at the Golden River's Boxing Club as well as involvement with tennis and golf at the Deniliquin RSL. Mr Prochillo said that he is accredited with a Responsible Service of Alcohol (RSA) certificate and when working in the local Hotel he was solely responsible for the patrons. He had worked at the Commercial Hotel in Hay which is owned by his aunt. He was hired by his uncle and worked 3-4 days per week either Thursday to Sunday or Friday to Monday.
17. Finally in response to the case against him Mr Prochilo stated that he did not note the drug driving offence on his firearms application because that matter was a traffic offence not a drug offence.
18. At the end of his evidence in chief Mr Prochilo was excused until his father had given evidence, due to the urgent need to receive that evidence prior to any urgent pending medical treatment. This course was agreed by the parties.
19. In cross examination about the 'scooter incident' Mr Prochilo said that he saw the other person dismantling the scooter by taking a wheel off and throwing the scooter on the shade cloth. He reiterated that he was not involved in any way with the scooter. In respect of the Police car door, Mr Prochilo reiterated that the incident did not occur. He denied being intoxicated when yelling out to his friend over the 'pizza incident' nor was he under the influence of drugs. Mr Prochilo agreed that the male Police officer put him in the back of the Police vehicle for a short period to 'try and scare him'.
20. Mr Prochilo was asked why he would pay a penalty notice in such circumstances where you had done nothing wrong. Mr Prochilo said that as it would have been three officer's word against him he decided to pay it.
21. In respect of the 'drug driving' matter it was put to Mr Prochilo that he was pulled over on 3 June 2017 at 5:00pm, and was asked to explain how the cannabis got into his system. Mr Prochilo said that he assumed that he must have been too close to someone the night before at a party, via second hand smoke. The Solicitor for the Commissioner noted that Mr Prochilo answered all Police questions at the time with 'no comment'.
22. Mr Prochilo was asked about his response to the Notice of Refusal and why he had never stated that he never used cannabis. At this point of the hearing there was a general discussion about Mr Prochilo's letter (contained at 58-62 of 'R-2').
23. Mr Prochilo was asked about the 'ATM incident', which was considered the most significant matter in the case against him. When asked if he believed his response on the day was appropriate Mr Prochilo answered that he had thought about the matter a lot and that his first response involved talking to the man but that only made the other party more angry. He said that he had tried to deescalate the matter and got out of the car and spoke loudly in the hope that they would leave his mother and grandmother alone. When asked about his plea of guilty Mr Prochilo said that this would have been in the context of hoping to receive a section 10 Court outcome. When this did not occur they launched their successful appeal. However when asked specifically if he could recall his plea Mr Prochilo said that he could not remember either way as this was more than eight years ago.
24. Mr Prochilo told the Commissioner's representative that the other party was leaning over his mother and he did not know if they touched. He said that he took his sunglasses off before the left the car The other party fell to their knees and he did not punch him a dozen times, but rather he hit him twice and then they fell to their knees. They got back up and maybe he punched three or four more times.
25. Mr Prochilo said that the reason he or his family did not call the Police was because the threat had been resolved. He said that he would have possibly reacted the same way as there was no other option. Mr Prochilo denied that pushing the other party would have resulted in a different outcome between the two parties.
26. In respect of his alcohol consumption Mr Prochilo said that he only drinks beer The night before his positive breath test he had 15 drinks, three at the pub and a dozen at a friend's place until picked up by his father in the early hours. The drinks were full strength Carlton Dry. Mr Prochilo said that he went over on the breath test but went to Hospital for a blood test.
27. Mr Prochilo was asked about his entry at item 'H' on his firearms application form where he declared no criminal / drug matters in the last 10 years. Mr Prochilo said that his neighbour at the time was a police officer who advised him that those matters were traffic matters and he did not need to declare them. When asked directly whether he had ever used a firearm Mr Prochilo said that the only time he had fired a gun was at the clay targets.
28. The Tribunal asked Mr Prochilo some questions consistent with the provisions of s 38 of the NCAT Act. The Tribunal sought clarification about Mr Prochilo's health issue. He said that he had a heart condition since the age of 14. He went to Melbourne for open heart surgery at that time. When asked how it had impacted on his life Mr Prochilo said that because of this he has tried to stay away from drugs as much as possible.
29. In respect of the comments by the neighbour Police officer, Mr Prochilo said that he said that he should be fine to get a gun licence.

Evidence of Mr R Prochilo

1. Mr Prochilo senior gave evidence by telephone. He was asked about the 'ATM incident'. the witness said that his wife and mother in law went to get money out of the Bank. He and his son were sitting in the car and asked his son who the people harassing the women were. One was described as a 'big boy who leaned over the top of the women looking at her putting the numbers in'. The witness said that his wife was in shock over the behaviour of the strangers.
2. The witness was asked what occurred during the physical altercation. He said that the male was throwing his arms about and said to Mr Prochilo 'what are you going to do'. There were two punches immediately and after the male returned to his feet the punches continued. No more than five or six punches occurred in total from Mr Prochilo. The male got up and grabbed Mr Prochilo around the waist. When he broke free everyone got in the car and went to Shepparton. The male and the female walked off.
3. In respect of the need for a licence the witness said that Mr Prochilo needs the licence because two sides of the property border Crown land and vermin hides in there and they are not allowed to go in and shoot or shoot into there. Then witness said that his brother is not able to take on the role any more due to health issues as was also now the case for the witness. His wife has mental health issues, which would prevent her from having a licence. There is no one else to perform the role.
4. The witness said that he has a son (Roco Junior) who lives in the Hunter district hundreds of kilometres away. The other son lives in Sydney. They are too far away to effectively help.
5. In cross-examination the witness was asked how many times Mr Prochilo punched the male in the face. The witness said that there were two punches after the male grabbed Mr Prochilo. The witness said that the male hit the ground after the two punches, got up and grabbed Mr Prochilo around the waist. He described what happened before as the male standing behind his wife and mother in law 'like a smartarse'.
6. The witness assumed that his wife must have know the male because he was so close to her, but when she turned around he could see that she was in shock. The witness said that he was '100% satisfied' that Mr Prochilo's actions were justified in the circumstances and that 'he should have been given a medal'.
7. The witness was asked why they did not call the Police. The witness said that the matter was finished and the male and his female companion went on their way.
8. The witness was asked about Mr Prochilo's boxing involvement, The witness said that another son was more involved in boxing and that Mr Prochilo had only become involved in about the last four or so years. He said that Mr Prochilo does not specifically teach boxing or engage in boxing but rather he 'just helps out'. He said that Mr Prochilo had not done boxing since he was 17 years old and did not attend the Gym for boxing but only to do weights.
9. The witness concluded his evidence relating to the ATM incident by stating that the male was bullying his wife and mother in law.
10. The witness as asked about the drink driving matter where Mr Prochilo returned a mid range result. He said that Mr Prochilo came home about 9:00a.m. and he slept for the whole day. He woke him late as he had to go and vote before the polling booth closed.
11. In respect of the need to manage vermin on the farms the witness agreed that when contractors work on the farms occasionally it is of little deterrent value. However he said that the issue is that shooting needs to occur regularly. The shooters had used ferrets to get the rabbits out and they had engaged three different roo shooters over recent times. However none of this was sustainable and the vermin came back.

Commissioner's evidence

1. The Commissioner relied upon the material outlined at [24] above as well as confidential evidence. The open affidavit of Sgt T R McAlpin (Exhibit 'R-3') refers to the Commissioner's wish to file confidential material and exempt the Commissioner from filing and serving some of that material under s 59 of the ADR Act.
2. Exhibit 'R-2' is a copy of Police statements taken by investigating Police in respect of the ATM incident. One statement is from Mr Prochilo's mother, another from his grandmother and a third statement is from an independent witness whose involvement was (according to the statement) to break up the altercation.
3. Exhibit 'R-1' are the Commissioner's s 58 documents. The majority of the information in the s 58 documents is dealt with in Mr Prochilo's evidence as set out above. The detailed questions and answers arising from the history (as summarised at [14] above) during the evidence at hearing address all aspects of the open evidence of the Commissioner's material including extracts from the COPS Database which comprise approximately 50% of the s 58 material.

Confidential Hearing - not for publication

1. (Not for publication)
2. (Not for publication)
3. (Not for publication)
4. (Not for publication)

Observations on confidential evidence

1. (Not for publication)
2. (Not for publication)

Applicant's submissions

1. Mr Prochilo prepared written submissions and made oral submissions at the conclusion of the hearing. He submitted that he had genuine concerns about the use of s 59 of the ADR Act for the Commissioner to rely on 'secret' evidence. The basis of these concerns related to belief that the open evidence was flawed, essentially stemming from errors in the facts and reasoning process in the Notice of Refusal and Internal Review. At the conclusion of the hearing the Tribunal explained in some detail the relevant provisions of the ADR Act and the Firearms Act concerning the receipt of confidential evidence and emphasised that Mr Prochilo and his Agent would need to accept the impartiality and professionalism of the Tribunal.
2. In his rebuttal submission statement (Exhibit 'A-5'), Mr Prochilo submits that in many of the instances he was singled out by Police and spoken to, had his particulars recorded or issued with a C.I.N. He submitted that the Review was flawed and no positive weight had been placed on the favourable material.
3. In submissions filed following the hearing and receipt of the Commissioner's submission Mr Prochilo referred again to a number of the incidents covered in the evidence at the hearing and his previous rebuttal. Mr Prochilo submitted that in respect of the ATM incident the District Court Judge accepted that he was provoked and was protecting others and that no other serious charges had ensued in the years since.
4. A submission was made that the mid range PCA reading arose in the context of having contracted measles although no evidence was given on this point, merely a submission that this was the view of his doctor.
5. Mr Prochilo submitted that the positive drug driving result came about in unusual circumstances whereby he maintained that he did not personally use drugs, and that the attending Police conducted three more drug tests at the Police Station after a positive roadside reading.
6. Mr Prochilo also took issue with the Commissioner's characterisation of him as a liar, stating that he received legal advice that the drug / alcohol driving matters were traffic matters only and that as they were not criminal convictions they would not impact on hi ability to travel to the United States of America.

Respondents Submissions

1. The respondent made oral submissions in the confidential hearing. In open written submissions the Commissioner referred to the case law on matters concerning granting an application if it was in the public interest.
2. The often cited cases of Commissioner of Police v Toleafoa [1999] NSWADTAP 9, Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16 and Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28 were all referred to in the Commissioner's submissions as to public interest.
3. The case of Director of Public Prosecutions v Smith [1991] 1 VR 63 was also referred to in the Commissioner's written submissions where the Court observed: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of a government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of it members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
4. That case (Smith) outlines similar views to those expressed in the line of cases above and in particular Comalco Aluminium where the Court observed that the interests of the whole community are matters for the Commissioner's consideration.
5. Mr Zoppo Solicitor who appeared for the Commissioner noted the number of incidents whereby Police had attended and had interactions with Mr Prochilo between 2013 and 2020. Whilst many of the submissions focused on whether Mr Prochilo now presented himself as a fit and proper person to hold a firearms licence, the Tribunal notes that the Commissioner's refusal was not on that basis, but solely on the public interest grounds.
6. The Commissioner submitted that Mr Prochilo's behaviour is not conducive with the responsible possession and use of firearms. Reference was made to the objects of the Legislation identifying that firearms use and possession is a privilege and there is an implied requirement that all licence holders act responsibly. It as submitted that Mr Prochilo did not meet this requirement.
7. The Commissioner submitted that there were significant concerns about Mr Prochilo's admissions to associating with persons who use drugs and that there were open references to him attending 'premises of a known drug user' in October 2020 as referenced at [34] of the Commissioner's written submissions.
8. The Commissioner maintained their position that Mr Prochilo had provided false and misleading information in his firearms licence application notwithstanding Mr Prochilo's evidence that the drug matter was a traffic matter only.
9. Reference was made to the case of Hunt v Commissioner of Police [2021] NSWCATAD 58: At [53] the Tribunal observed: 53. The failures to declare his past attempts at self harm, however, occurred in early 2019. The applicant admitted under cross-examination that he knew if he declared a previous attempt at self harm he would have had to obtain the Commissioner's permission to do the firearms course; however he also claimed that he thought he did not have to declare it as it was 20 years ago. This ignores the fact that the question asked if he had ever attempted self-harm. 54. When it came to making the application for a licence a week later, the applicant again failed to disclose the relevant facts, but excused his conduct by claiming that he knew the police would have records of the 1999 incidents and he did not see it as relevant, particularly as the form only asked for details of criminal offences in the past 10 years. 55. He seems to have placed his own interpretation on what the forms were asking, regardless of what they said and the importance of disclosing all relevant information to the relevant authorities. It is also possible that he did not wish to disclose the 1999 incidents, as he said he was ashamed of them. If that is the reason, it is unfortunate, but the consequence is that he gave misleading answers on two separate occasions and I cannot be satisfied that he simply misread the forms. 56. As stated by the Senior Member in Kogias, the proper functioning of the firearms legislation depends on applicants providing true and correct information and it is not relevant whether the firearms registry might already have access to information about the applicant or the applicant considers the information sought is irrelevant. The forms are an important component of the scheme to reduce the risk to the public from the possession and use of firearms. Where the applicant has twice failed to disclose information from the authorities which is relevant to safety, it brings into question whether, if he were granted a licence, he would act responsibly in complying with the requirements of his licence and the regulatory scheme. I have considered the character references but while they attest to his good character and stable psychological health, they do not address the misleading declarations.
10. However I note some similarities in Hunt as well as some differences with the present case. The actual lack of disclosure is similar, as is an understanding that the Commissioner would have records of all matters of this nature in any event. I note that Mr Prochilo does not rely on the later explanation but rather says that he took advice and acted on that advice. A difference between the two however in the case of Hunt relates to the type or import of the information omitted which was in my view of far greater significance to determining an individual's suitability to have access to firearms.
11. The Commissioner concluded the initial submission by referring to Mr Prochilo's 'history of violent and aggressive behaviour and the concerns relating to his use of and association with prohibited drugs', which the Commissioner said 'should be given weight to the Applicant's level of self control and suitability to hold a firearms licence.'
12. In supplementary submissions the Commissioner sought to address conflicts in the oral evidence at haring and the Commissioner's filed evidence. In respect of the 'fireworks incident' the Commissioner submitted that Mr Prochilo was the only person to hand over fireworks because when the others in the group were searched, none had fireworks on them.
13. Reference was made to each of the other incidents set out in the Internal Review decision. The Commissioner submitted that Mr Prochilo's behaviour in November 2016 (when a fight had broken out in public near a hotel) showed Mr Prochilo's 'clear hostility towards Police on this occasion'. The Commissioner maintained that Mr Prochilo did not at all times tell the truth in giving evidence before the Tribunal. The Commissioner relied on their belief that Mr Prochilo had not individually prepared the statement of rebuttal.
14. The Commissioner submitted that Mr Prochilo denied any wrongdoing in his actions over the period 2013-2020 and addressed matters by trying to explain away what had occurred without accepting any responsibility.
15. Reference was made to the failure to supply accurate information in the application as a breach of s 70 of the Firearm's Act. Reference was made to Bladen v Commissioner of Police NSW Police Force [2015] NSWCATAD 240 whereby the Tribunal upheld the Commissioner's decision to revoke a licence on the basis of false or incomplete information being provided at the time of the initial application. However that matter concerned a far more serious omission that the one currently asserted by the Commissioner.
16. In Bladen the applicant had failed to disclose his other recorded names that he went by. This failure prevented the police identifying that there was an outstanding warrant. The applicant had deliberately omitted the other name(s) in order to avoid having the warrant executed.

Consideration

1. I note that whilst not squarely in the decision for review before the Tribunal, the notion of 'fit and proper' is referred to the lead case of Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and the various ADT and Tribunal cases that have relied on Bond.
2. The case of Bond provides the general principle that fitness and propriety are not to be narrowly construed or confined and can extend to any aspect of fitness and propriety that is relevant to the public interest.
3. On the notion of public interest I note that such matters include public protection, public safety and public confidence in the administration of a licensing system. The Firearms Act 1996 identifies a purpose to deal with public safety at s-3 (1) (a) of the Act.
4. Section 3 of the Firearms Act 1996 provides: 3 Principles and objects of Act (1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and
5. It is well understood when reviewing these decisions in the Tribunal that these principles and objects provide clear guidance as to how the provisions under the Act are to be administered.
6. When looking at the issue of public interest the Appeal Panel of the ADT in the case of Constantin v Commissioner of Police NSW Police Force [2013] NSWADTAP 16. 28. As noted in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 [at 33] the 'public interest' is: 33. The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. In this case the public interest case was a very strong one. The public would, we believe, be quite concerned that a man with a serious history of violence, including violence using weapons, for which he served several years' imprisonment might now be entrusted with a pistol.
7. The applicant has a history of violence. However contrary to the matters referred to in Toleafoa he has no history of violence since 2013 and clearly no repeat history. He has no matters involving weapons. I do not consider the issuing of the C.I.N. on the fireworks incident to raise any issue about the use of a weapon.
8. Notwithstanding the various positive aspects and elements of the applicants character, as set out in his various references received without objection (Exhibit's 'A-3' and 'A-4'), the public would be entitled to take into account the applicant's finding of offence proven on the AOABH matter, as well as the two traffic matters involving alcohol and a prohibited drug. Whether they would be concerned that someone with that history would be entitled to access and use firearms is a matter that would turn on the evidence. The Public would be entitled to take into account the full circumstances of the case (AOABH as put before the Tribunal). Issues concerning Mr Prochilo's candour would be a matter of objective analysis.
9. Having listened to Mr Prochilo's lengthy evidence in chief and cross examination in my view there was noting obvious that indicated a lack of candour or a failure to tell the truth. In my assessment Mr Prochilo gave his evidence in a deliberate and measured way. He was not fanciful in his answers and not trying to please either the Tribunal or the Commissioner's representative. At times his approach might be considered or assessed as somewhat taciturn but some witnesses regularly appear taciturn in their evidence (for example Solicitors and Police officers under cross examination) without being adjudged to be responding with a lack of candour. I see no reason why I should treat Mr Prochilo's evidence any differently.
10. In my view the public would find nothing adverse in the manner of Mr Prochilo's responses. His father's evidence was at times embellished and with respect displayed a lack of insight about the incident at the ATM in references to 'deserving a medal'. I note from the evidence that Mr Prochilo's demeanour has previously been misunderstood by Police such as the most recent incident when his car and person were thoroughly searched. The fact that a person may present as nervous, anxious or somewhat flustered when in the presence of Police Officers is neither an adverse observation about the person or the Police. It is an understandable human response. To the contrary Mr Prochilo's evidence before the Tribunal came across as deliberative and certain if at times delivered slowly.
11. I note that the case law indicates that the individual's interests would always be subordinate to the public interest in the issuing of a licence. The case of Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 is relevant on this issue. At paragraph 681 of the Report: The purpose of the reference to 'public interest' is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.
12. In Toleafoa at paragraph [25], the Appeal Panel said that the public interest: "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual".
13. Again, I note that the body of case law indicates that the discretion is to be applied for the public benefit rather than the individual benefit.
14. In my view the legislation and precedents indicate that the discretion is to be applied consistent with the purpose of the Firearms Act, one of which is to ensure public safety in accordance with s 3 (1) (a) of that Act.
15. In applying the discretion for the public benefit I do not discern any significant matters which would prevent the applicant being granted the licence. Whilst he does have criminal antecedents in my view these should be balanced with the fact and circumstances surrounding those events which have been closely examined during the hearing before the Tribunal. None of the matters raised against him are of sufficient seriousness to warrant a mandatory refusal for a minimum of 10 years as determined by the Legislature.
16. The District Court outcome on a charge of AOABH is in my view supportive of Mr Prochilo's general position that his actions were as the result of significant provocation whereby he and his father believed that his mother and elderly grandmother were under some sort of immediate risk of harm. Had Mr Prochilo's party called Police then different outcomes may have ensued from a charging and Court perspective. The evidence of the third party clearly is limited on the issue of the total circumstances of the matter as they were engaged in a separate social interaction with another person. As conceded by the Commissioner this AOABH matter is the most significant matter facing Mr Prochilo in this review.
17. Whilst corporal violence is never to be condoned, and noting that the evidence indicates that Mr Prochilo was not acting in self defence but as a result of provocation, the finding of offence proven by the District Court without proceeding to a conviction provides a suitable outcome of that matter having regard to all the circumstances of the offence.
18. The Tribunal is often tasked with determining the balance in respect of the public interest when it comes to firearms licence reviews. More recently the majority of cases deal with the sole issue of whether the granting of the licence would be in the public interest. As previously noted this case is one such case.
19. In the case of Rose v Commissioner of Police (No 2) [2022] NSWCATAD 26 the Tribunal recently observed that the 'burden' that an applicant is required to overcome on this issue is not taken to be insurmountable. At [56] when referring to the case of Martin, the Tribunal observed: 56 It is not the case, as indicated in Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] to [66], that an Applicant is required to discharge an almost impossible burden of proving a near-absolute negative. 57 Rather, as stated in Webb at [32] when considering the question of public safety: "In determining this issue it is my view that it is necessary to adopt a balanced view of the risk, bearing in mind all the relevant circumstances. Only real and appreciable risk needs to be taken into account. Minimal, fanciful or theoretical risk can be excluded from consideration".
20. In balancing those risk matters with the objects and the overall protective purpose of public safety from s 3 of the Firearms Act I am satisfied that on the evidence and material before the Tribunal, including the confidential evidence, it would be in the public interest to grant the licence.
21. Having regard to the cases referred to above in my view it would not be contrary to the public interest to grant Mr Prochilo the licence and I so find.

Conclusion

1. Because of the findings that I have made, it is appropriate to set aside the decision of the respondent.
2. As this is an administrative review matter, it therefore follows that the correct and preferable decision is to set aside the decision of the respondent.
3. I therefore make the following order:

Orders 1. The decision to refuse the Applicant's Category AB Firearms Licence is set aside.

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: 05 May 2022