Kemball v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2022-08-31

Commissioner of Police, NSW Police Force [2013] NSWADT 137 Tannous v Commissioner of Police [2011] NSWADT 116 Ward v Commissioner of Police [2000] NSWADT 28 Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 Texts Cited: None cited Category: Principal judgment Parties: Robert Kemball (Applicant) Commissioner of Police, NSW Police Force (Respondent) Representation: Applicant (Self Represented) McCullough Robertson (Respondent) File Number(s): 2022/00056003 Publication restriction: Pursuant to the Civil and Administrative Tribunal Act, 2013 (NSW), ss 64(1)(c) and 64(1)(d), the contents of all paragraphs in these Reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the Applicant or the public.

Introduction

Since about 2009, the applicant Mr Kemball, held a category AB firearms licence for the genuine reasons of recreational hunting/vermin control. Mr Kemball's firearms licence was suspended for twelve months from 19 October 2019 to 19 October 2020, and his firearms and ammunition were seized.
His firearms were returned to him for a brief period after the suspension period lapsed when, on about 18 November 2020, the Commissioner decided to revoke his firearms licence entirely.
It is the Commissioner's decision made on 18 November 2020 that is presently before the Tribunal.

Issue

The issue to be determined in this matter is whether, having regard to the facts and applicable law in this case, the decision to revoke Mr Kemball's' firearms license was the correct and preferable decision.
The answer to that question, in short, is that the decision to revoke his licence was not the correct and preferable decision and, for the reasons set out below, Mr Kemball should be issued with a new firearms licence.

Jurisdiction of the Tribunal

A person may apply to this Tribunal for administrative review of the Commissioner's decision to revoke a firearms licence pursuant to the Firearms Act 1996 (NSW), s 75(1)(c) and the Administrative Decisions Review Act 1997 (NSW), s 9.
In conducting the review, the Tribunal must consider the correct and preferable decision regarding the material before it, including the facts and applicable law; Administrative Decisions Review Act, s 63. The proceedings are not adversarial in nature; there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354, at 357. There is no burden or onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34].

Firearms legislation

The possession and use of firearms in New South Wales are regulated by the Firearms Act, the underlying principles of which are set out in s 3(1) and include: (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, …
The Tribunal, in determining applications such as these, is required to exercise the statutory discretion in a manner that promotes the principles of the Firearms Act; Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [23].
In Dale v Commissioner of Police, NSW Police Force [2019] NSWCATAD 134 at [46], the Tribunal considered, having regard to the underlying principles of the Firearms Act, s 3(1), that the primary consideration in relation to public interest must be public safety. An applicant's interest in obtaining or retaining a firearms licence is subordinate to that consideration; Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276.
A person must not possess or use a firearm unless authorised by permit or licence; Firearms Act, s 7A.
The Commissioner may revoke a firearms licence for any reason for which the licensee would be required to be refused a licence; Firearms Act, s 24(2)(a). That includes consideration of whether the licence applicant is a fit and proper person; Firearms Act, s 11(3) and whether it would be contrary to the public interest; Firearms Act, s 11(7).
The Commissioner may revoke a licence where she is of the opinion that the licensee is no longer a fit and proper person to hold a licence; Firearms Act, s 24(2)(c).
Further, and by operation of the Firearms Act, s 24(2)(d) and the Firearms Regulation 2017, reg 20, the Commissioner may revoke a firearms licence where she is satisfied that it is no longer in the public interest to hold a firearms licence.

Fit and Proper Person

The term "fit and proper person" carries no precise meaning, a determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28.
Determination of whether a person is "fit and proper" is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
These statements have been considered at some length in numerous decisions of the Tribunal, most significantly the Appeal Panel's decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58], albeit in the context of an applicant with a criminal history seeking at tattooist licence.
Consistent with Bond, in matters concerning firearms licencing, the Tribunal has had regard to the activities the applicant will be engaging in when considering the question of whether an applicant is a fit and proper person and the context of the relevant legislative regime Bond per Mason CJ at 348 which the Tribunal in Barlow v Commissioner of Police, New South Wales Police Service [2003] NSWADT 254 at [22] expressly adopted in considering the provisions of the Firearms Act, s 11(3).
What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not merely an assessment of an applicant's character; it is also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder; Austin at [58].
As noted in the Tribunal's decision in Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at [6], the firearms licensing regime is concerned with protecting the public, not punishing individuals. The firearms licensing regime is concerned with identifying the possible risks to the public and making decisions consistent with the need to reduce any risks to a minimum; Petas v Commissioner of Police, NSW Police Force [2013] NSWADT 137 at [36]. Such consideration is not limited to an assessment of the particular characteristics of an applicant but instead requires consideration of the contextual risks to the public if the applicant were to be granted a firearms licence.
In Ward v Commissioner of Police [2000] NSWADT 28 at [28], the predecessor to this Tribunal stated: The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.'
The views expressed in Ward have been adopted in numerous decisions of this Tribunal, including by the Appeal Panel of the Tribunal in Meacham v Commissioner of Police [2020] NSWCATAP 107.
However, such a test cannot be applied mechanistically lest it gives rise to an insurmountable burden upon applicants for firearms licences; Martin [66]. Rather, careful consideration of the evidence before the Tribunal is required where only real and appreciable risks should be taken into account; Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110 at [32], Cruickshank v Commissioner of Police [2022] NSWCATAD 115 [13] - [20].
In the course of such consideration, the text of the provision is prime and should not be substituted for gloss or interpretation; AML v Commissioner of Police, NSW Police Force [2013] NSWADT 5 at [7].

Public Interest

In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the 'public interest' was an inherently broad concept providing the decision maker with the ability to consider matters where character was either not relevant, or where the objection to character would not be sufficient, alone, to warrant refusal or revocation of a firearms licence. The appeal panel expressed similar consideration regarding the breadth of the term public interest in Constantin v Commissioner of Police [2013] NSWATAP 16.
The Appeal Panel's statements in Toleafoa and Constantin reflect the statement in Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 61 IR 455 at 479-480 per Wilcox CJ and Keely J with whom Moore J agreed, to which both parties refer in submissions that: The purpose of the reference to ''public interest'' is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the ''scope and purpose'' of the legislation.
The discretion allowed under the relevant provisions of the Firearms Act must be exercised to promote the objects of the firearms legislation; Cusumano v Commissioner of Police, NSW Police Service [2011] NSWADT 50 at [13]; Petas at [35].
Consideration of what is the 'public interest' is confined to the subject matter, scope and purpose of the legislation; Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315 at [31], citing O'Sullivan v Farrer (1989) 168 CLR 210, [13].
Public interest considerations are extremely broad and may encompass considerations of public protection, safety and confidence in the administration of firearms licencing. Indeed, these are matters expressly identified in Constantin at [33].

Evidence

At the hearing, the Commissioner relied on the following material: 1. A bundle of documents filed pursuant to the Administrative Decisions Review Act, s 58 (s 58 Bundle), comprising: 1. Mr Kemball's firearms licence history; 2. Criminal history; 3. Traffic record report; 4. COPS information and fact sheets; 5. Mr Kemball's applications for firearms licences between 2009 and 2019; 6. Notices of suspension and related documents, including a report of a psychologist who assessed Mr Kemball's fitness to hold a firearms licence; 7. Mr Kemball's request for an internal review and the internal review decision; 1. A redacted COPS report; and 2. Confidential evidence, which I will not detail in open reasons.
Mr Kemball provided a statement addressed to the solicitor for the respondent. He also gave evidence in the witness box and was cross-examined by the solicitor appearing for the Commissioner.
In giving evidence at the hearing, Mr Kemball stated, amongst other matters, that: 1. He intended, if his application was allowed, to renew his membership with a hunting club; 2. That he intended to possess .223 and .270 rifles, the former being small, accurate and sufficient for hunting most game, the latter being used for larger animals such as deer.

Material Facts

Mr Kemball was first issued with a firearms licence in April 2009. On his application form, Mr Kemball stated that he had a genuine reason for having a firearms licence, being recreational hunting and vermin control. The application identified that Mr Kemball was a member of an approved hunting club. In addition, he had permission from the occupier of rural land to shoot on her property. Mr Kemball's application was accompanied by a confirmation that he had completed a firearms (longarms) licence qualification course before making his application.
Mr Kemball completed renewal applications in May 2014 and again in May 2019. The Commissioner renewed Mr Kemball's licence on both occasions.
Mr Kemball gave unchallenged evidence that he used his firearms for hunting, including hunting for food. He told the Tribunal that he had an interest in animals, including the taxidermy of same, and that he wished to continue to hunt, eat and preserve animals and teach his children where meat comes from.

Suspension of the firearms licence

On 14 October 2019, the Commissioner issued a notice of suspension of firearms licence to Mr Kemball. Mr Kemball's firearms licence was suspended for 12 months, and police attended his home, where they seized his firearms and ammunition. The stated basis for the suspension was that the Commissioner considered that it was no longer in the public interest for Mr Kemball to hold a firearms licence since he had been charged with assault, occasioning actual bodily harm.
Assault occasioning actual bodily harm is an offence under the Crimes Act 1990 (NSW), s 59(1). However, an indictable offence as it appears in Criminal Procedure Act 1986 (NSW), Sch 1, Table 2, cl 1, is dealt with summarily unless the prosecutor makes an election for trial on indictment; Criminal Procedure Act, s 258.

October 2019 Incident

The notice of suspension was issued after an incident on 13 October 2019 involving Mr Kemball and others outside a nightclub in Goulburn. Mr Kemball was found running down the street wearing only a cowboy hat and was asked by police to dress and move on. Then, shortly after, he was involved in an altercation where Mr Kemball punched a man in the face, who then fell to the ground (October 2019 Incident).
Consequently, Mr Kemball was charged with three charges; assault occasioning actual bodily harm, obscene conduct and behaving in an offensive manner. The offensive conduct and obscene exposure charges are summary offences pursuant to the Summary Offences Act 1998 (NSW), s 4(1) and s 5, respectively. The assault charge, as I noted above, is an offence under the Crimes Act, s 59(1). Such a charge is punishable by up to 5 years in prison and, as such, is not a matter dealt with on a summary basis.
When the charges arising from the altercation at Goulburn came before the Local Court of NSW in February 2020, the police withdrew all but the charge for the summary offence of obscene conduct. The obscene conduct charge was then dealt with pursuant to the Crimes (Sentencing Procedure) Act 1999 (NSW), s 9, and the court ordered that Mr Kemball be subject to a conditional release order for a period of 6 months with no conviction recorded.
Before the Tribunal, Mr Kemball gave unchallenged evidence that the assault charge had been withdrawn by police when CCTV footage became available in the court process. That footage showed Mr Kemball being approached by a group of men and being assaulted before he then struck the man as an act of self-defence. Mr Kemball's evidence was that the group of men had plenty of time to leave him alone before he struck the man. Mr Kemball's evidence concerning the CCTV footage was also unchallenged.
Despite the fact that the Police had withdrawn the charge that had been the basis upon which his firearms licence had been suspended, Mr Kemball's firearms licence suspension remained in place until October 2020; at which time Mr Kemball had his firearms returned to him.

Mental health risk assessment

On 8 September 2020, NSW Police notified Mr Kemball that they had concerns about his mental health and whether it would be safe for him to possess and use firearms. The concerns were expressed to have been based on the fact that, a year earlier, when he was arrested in relation to the altercation at Goulburn, he had told police he was taking antidepressant medication.
Mr Kemball had not indicated on his renewal form in May 2019 that he had been treated for any mental health or nervous complaints.

The decision to revoke the licence

As noted in the introductory paragraphs of these reasons, on 18 November 2020, a delegate of the Commissioner decided to revoke Mr Kemball's firearms licence. That is the decision under review in these proceedings. The decision stated, by way of background, that: 1. Information obtained on 13 October 2019 revealed concerns for his mental health; 2. By the time of the decision under review, Mr Kemball had not provided a completed mental health risk assessment from a psychologist or psychiatrist; and 3. The incident on 13 October 2019 and an incident on 1 February 2014 "reveals you have engaged in inappropriate behaviour towards members of the public".
The decision under review then determined that: Without the benefit of expert advice to assist in determining your suitability to possess and use firearms without a risk to public safety, I cannot be satisfied that you could exercise continuous and responsible control over firearms. Further, your behaviour outlined above raises concerns regarding your suitability to possess a firearms licence.
The decision under review revoked Mr Kemball's licence "on public interest grounds".
Before the Tribunal, the Commissioner submitted that: The revocation of the Applicant's firearms licence was and is the correct and preferable decision because of the Applicant's mental health status (i.e. that he currently suffers from and is being medicated for depression) and his conduct both on 2 February 2014 and 13 October 2019, creates an unacceptable risk to public safety. These submissions also argue that it is not in the public interest for the Applicant to hold his firearms licence as relied on in the Decision [under review].
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Commissioner's facts relied upon to assert that Mr Kembal is not a fit and proper person to hold a firearms licence

In evidence and the Commissioner's written submissions, the Tribunal heard of further matters that the Commissioner considered supported the conclusion that Mr Kemball was not a fit and proper person to hold a firearms licence. I will now review each incident the Commissioner relied upon at the hearing.
The Commissioner, citing Barlow, submitted that the assessment of whether a person is a fit and proper person in the context of the Firearms Act "must be considered in the context of at all times ensuring public safety". That is an uncontroversial statement of the approach taken by this Tribunal towards the fit and proper person test. However, as will be apparent from the analysis below, none of the matters relied upon by the Commissioner, in this case, are relevant, contextually or otherwise, to the question of public safety.

2008 Public Urination

The Commissioner submitted that, on 25 December 2008, Mr Kemball had been seen by police urinating on the veranda of a hotel in Picton, New South Wales. The Commissioner submitted that, despite police identifying themselves to Mr Kemball, he continued urinating. In late 2008, Mr Kemball was about 19 years old. He had clearly been drinking. While public urination is a matter which is not to be condoned, it is surprising that the Commissioner raises a matter of such triviality that occurred nearly 15 years before the hearing and when Mr Kemball was a very young man in circumstances where no issue of public safety arises from it. No charges were laid for fines imposed.
As the Commissioner submitted in writing, citing various passages in Meacham, the Tribunal must properly consider all relevant material and ignore irrelevant materials. I do not consider that any concern over public safety arises from this incident, nor do I consider that the incident relevantly informs the Tribunal's consideration of whether Mr Kemball is a fit and proper person to hold a firearms licence. Accordingly, I reject it as a matter that should weigh against Mr Kemball's eligibility to hold a firearms licence.

An incident at the Hibernian Hotel in Goulburn in 2019

The Commissioner submitted that, on 4 May 2019, Mr Kemball had become involved in a verbal altercation with another man outside the Hibernian Hotel in Goulburn, New South Wales, in connection with an inquiry by Mr Kemball about whether a man had drugs in his possession. The COPS record on which this submission is based records the full extent of Mr Kemball's involvement in what became a physical fight between three others. The COPS records conclude that police broke up the fight and further enquiries would follow.
I note that Mr Kemball was not cautioned, fined or charged with any offence concerning this incident. Nor was the context of Mr Kemball's involvement or why he asked such a question recorded or explained.
Mr Kemball's written evidence was that he had been approached by a man and asked if he had drugs - the opposite of what has been recorded by police in the COPS record. Mr Kemball notes that in the COPS report, he is the only person not referred to as a person of interest. On a fair reading of that report, it seems his role was principally that of a witness to a physical fight and the police did not seek a statement from him.
The Commissioner submits that this incident exemplifies Mr Kemball's intemperate behaviour, particularly around alcohol. While I accept that the Commissioner is putting evidence before the Tribunal that may suggest likely future conduct, I do not consider that the evidence about this incident is relevant to assist the Tribunal in determining whether it is in the public interest for Mr Kemball to hold a firearms licence since.

Search warrant executed on Mr Kemball's home in December 2020

On 17 December 2020, NSW Police, with the assistance of WIRES and officers from the National Parks and Wildlife Service, executed a search warrant of Mr Kemball's home. During that search, the police located some cannabis and a box of .22 calibre ammunition for which Mr Kemball did not hold a licence or permit. The search also resulted in the seizure of restricted reptiles, specifically three lace monitors, two leopard geckos, three red ear slider turtles, and three jars of dead baby black-headed pythons. The animals and the dead pythons were seized, and the NSWPWS fined Mr Kemball.
Mr Kemball's evidence was that the cannabis was found in his shed, and he states that he did not know about this cannabis before it was located by police. Mr Kemball stated candidly that it may have been from a "get-together sometime before the search". In cross-examination, Mr Kemball explained that he thought the cannabis belonged to his former intimate partner (the relationship ended in about June 2022) and that he never used cannabis because he disliked the feeling of not being in control.
The presence of cannabis in the possession of members of the public is a regrettable, though commonplace, occurrence. There was no evidence that Mr Kemball uses cannabis, nor is there any suggestion that he is involved in its supply. There was no evidence that police tested Mr Kemball for cannabis in his system once the drug was found. Other than the fact that a small amount of cannabis was found in a shed at his home, there was no evidence to suggest that Mr Kemball uses cannabis himself.
As to the ammunition that was located in the search. The possession of ammunition without the requisite licence is not a trivial matter.
[NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION]
The evidence of where and how the ammunition was found in this case readily explains why this fact is relatively inconsequential to my determination of Mr Kemball's application. Mr Kemball gave unchallenged evidence that the ammunition located by police was in a messy shed along with gun cleaning equipment and that the ammunition located was in two boxes, each the size of a matchbox. Mr Kemball explained that he seemed to have mixed up the ammunition with his gun cleaning equipment.
Having regard to the evidence before the Tribunal, it is reasonable to infer that the ammunition was overlooked by police and Mr Kemball when the police attended to seize his firearms and ammunition in October 2019 when Mr Kemball's firearms licence had been suspended. As a consequence, I do not consider this to be a matter that can fairly lead to a conclusion that it is not in the public interest for Mr Kemball to hold a firearms licence or that he is not a fit and proper person to hold a firearms licence.

Traffic offences

In written submissions, the Commissioner relied expressly on Mr Kemball's "disregard of the road rules" and "failure to properly engage in a mental health assessment" as being a further basis upon which Mr Kemball should be considered as not a fit and proper person to hold a firearms licence.
The Commissioner submitted that, since 2005 (i.e. since he was about 17 years old), Mr Kemball "has been charged with several low-level traffic offences including multiple instances of speeding, failing to stop at a red arrow, not wearing a seatbelt and [in October 2010] failing to display his provisional licence plates".
The Commissioner submits that Mr Kemball has, over the period of about 18 years, been the subject of three periods where his licence was suspended. In fact, as the Commission then concedes, regarding the most recent offence, the failure to stop at a red arrow in 2022, the suspension was dealt with by way of a good behaviour bond in lieu. Reviewing the traffic record report in evidence before the Tribunal, it is apparent that one of the earlier suspensions, too, was withdrawn by police due to a professional driver declaration lodged by Mr Kemball. I have inferred from the fact of the withdrawal that Mr Kemball has observed the traffic regulations and submitted to a process to ensure he was authorised to drive for work purposes. That fact suggests that he is cognisant of his responsibilities as a driver and has submitted to the regulatory regime for driver's licences.
Otherwise, the traffic record report shows a history, as the Commissioner describes it, of low-level offending, including driving with an expired licence and several offences where Mr Kemball was found to be exceeding the speed limit by more than 10 km/hr but less than 20 km/hr. The most serious offence was in April 2018 when Mr Kemball was fined for exceeding the speed limit by more than 20 km/hr but not more than 30 km/hr while driving a heavy vehicle.
Mr Kemball's driving record does not indicate a lack of proper regard for the safety of others. His offending, which the Commissioner submits is "low-level", is not as frequent - or as serious - to place him at the same level as the applicants in Kammoun and Keegan-Jaques or, for that matter, the applicants in El-Ashrafi v Commissioner of Police, NSW Police Force [2017] NSWCATAD 103, Madziala v Commissioner of Police, NSW Police Force [2021] NSWCATAD 269 or Tannous v Commissioner of Police [2011] NSWADT 116. The applicants in those cases, in addition to lengthy and serious histories of traffic offences, had criminal convictions for serious offences or were charged with serious criminal conduct, which reinforced the findings that the applicants in those cases had little regard for legislative and regulatory schemes aimed at ensuring public safety. None of those matters arises in this case.
Accordingly, and having regard to the nature and extent of Mr Kemball's traffic offences, I do not consider his history of traffic offences, whether considered alone or cumulatively with the other matters raised by the Commissioner, leads to a finding that Mr Kemball is not a fit and proper person to hold a firearms licence nor that he has demonstrated a lack of proper regard for the safety of others.

Confidential matters relied on by the Commissioner

In the confidential session of the hearing and her confidential written submissions, the Commissioner relied on the following matters as a basis for the Applicant not being a fit and proper person to hold a firearms licence. The same facts were also said to support a finding that it would not be in the public interest for the Applicant to hold a firearms licence: 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
Accordingly, I do not consider that the confidential evidence or submissions support a finding that Mr Kemball is not a fit and proper person to hold a firearms licence or that it would not be in the public interest for him to hold a firearms licence.

The 2014 Incident

The 2014 incident involved Mr Kemball behaving in a sexually inappropriate manner towards a 16-year-old girl who was a passenger on a train on which Mr Kemball was also riding.
Mr Kemball told the Tribunal that the incident occurred when he was drunk and riding home on the train. In his intoxicated state, he had sat next to and grabbed the hand of the girl and placed his hand on her leg and rubbed her leg. The advance by Mr Kemball was most unwelcome to the girl, and she pulled away from him, left the carriage and reported the incident to train staff or police. Mr Kemball was quickly removed from the train. He stated that he could not recall whether he was spoken to by police about what he had done. In his evidence before the Tribunal, Mr Kemball stated that he was completely ashamed of his behaviour, he did not know the age of the girl at the time, and he found it hard to speak of and that he "felt sick when he read the report". Mr Kemball agreed that his conduct towards the girl on the train was completely inappropriate.
According to the COPS record tendered in evidence at the hearing, the police determined not to take any formal action arising from the complaint. Mr Kemball was neither arrested nor charged with any offence.
The following facts and circumstances are relevant to the question of whether Mr Kemball should hold a firearms licence: 1. the conduct occurred in a public place in full view of any passenger and in circumstances where it is widely known that police regularly patrol trains; 2. there is no allegation that Mr Kemball threatened the complainant or pursued her when she pulled away from him; and 3. no weapons had been involved in the incident.
The abhorrence of sexual misconduct aside, I do not consider this incident to be relevant to the Tribunal's consideration of whether Mr Kemball should hold a firearms licence. In addition to the facts above, I consider it also relevant that at the time, police did not charge Mr Kemball with any offence, despite the incident being immediately reported to him and Mr Kemball being immediately identified and questioned about his actions.

Concerns over mental health

While only raised in September 2020, the source of concern over Mr Kemball's mental health arose because, when he was arrested on October 2019 in Goulburn, Mr Kemball told police that he was taking medication for depression.
Mr Kemball told the Tribunal at the hearing that he had been under intense personal and work stress at the time and had been prescribed some anti-depressant medication by his doctor. However, he told the Tribunal that he had taken the lowest possible dose for a short time and that, on the day of the hearing, he had not taken any medication for some time. I accept the evidence concerning his use of medication.
On 8 September 2020, the Firearms Registry asked Mr Kemball to provide the NSW Police with a mental health risk assessment completed by a psychologist or a psychiatrist. He duly saw a psychologist who prepared a report dated 24 September 2020. In that report, the psychologist addressed the substantive questions put to her in the request from the Firearms Registry. I do not discount the psychologist's findings on the basis that she did not directly answer the first eight questions put to her. These questions included whether the psychologist had read a letter addressed to Mr Kemball's general practitioner asking that a referral be arranged. The psychologist answered the substantive questions, which were questions 9, 10 and 11 and which asked her expert medical opinion about the risks Mr Kemball may pose to public safety and any impairment he might have.
The psychologist reported that; 1. Mr Kemball had become distressed after the breakdown of his marriage in 2018, and he had self-medicated with alcohol. 2. In 2018, in the context of his marriage breakdown, he was also assessed as having a mood disorder. The psychologist appears, however, to question this diagnosis when she states, "[h]owever, this was diagnosed at the time of his marriage breakup in which his mood was significantly triggered by stress and grief." 3. At the date of examination in September 2020, Mr Kemball did not display any clinical behaviours that would prevent him from holding a firearms licence. 4. In her assessment, she considered Mr Kemball to have stable mental health, and he showed no clinical behaviours that might cause concern; 5. Mr Kemball was rational and capable of making rational decisions and did not present any indicators that he would not act prudently; 6. Mr Kemball had never exhibited behaviour that would be considered violent or having poor judgment; and 7. She had no concerns that Mr Kemball, in having possession of a firearm, would be a risk to public safety.
I do not rely exclusively upon the psychologist's report since I was not provided with a copy of the referral letter from Mr Kemball's general practitioner. It is apparent from the background information in the report that the psychologist was not informed of the 2014 incident, and the factual basis concerning the altercation in October 2019 appears to have been described to the psychologist in a manner that placed Mr Kemball in a particularly favourable light. It is clear that, in his past, and contrary to the background stated in the psychologist's report, there have been some lapses of judgment and disinhibited behaviours, usually associated with the over-use of alcohol.
However, the psychologist's observations and findings, as set out in her report, were consistent with how Mr Kemball presented himself over the course of his attendance at the hearing of this matter in the Tribunal, and I accept her findings and opinions to the following extent: 1. That Mr Kemball's mental health is stable, 2. He shows no clinical behaviours that would be a cause for concern, 3. He is rational and capable of making prudent decisions and 4. Mr Kemball is unlikely to present a risk to public safety based on mental health grounds by having a firearms licence.
I also accept the opinion of the psychologist, elliptically stated, that the diagnosis of a mood disorder was more likely to be an observation about his feelings while going through the breakdown of his marriage in 2018 and that, by 2020, he exhibited no signs of a mood disorder or any other mental illness.

Fit and Proper Person

The Commissioner submits that two matters support the finding that Mr Kemball is not a fit and proper person to hold a firearms licence. The first is his intemperate behaviour in October 2019; the second is his disregard for compliance with regulatory and licencing schemes, namely his traffic record and his "failure to properly engage in a mental health risk assessment". There is a third matter also raised by the Commissioner, though not expressly, and that is the evidence that ammunition was found in Mr Kemball's shed in December 2022. For the reasons which follow, I reject each of those propositions.
When making the decision under review, the Commissioner relied on when making two events, that is, the 2014 Incident and the 2019 Incident. At the hearing in the Tribunal, the Commissioner submitted that those incidents, together with the incident at the Hibernian Hotel in May 2019, are "demonstrative of intemperate behaviour in that the Applicant has a tendency to conduct himself in an offensive or aggressive manner whilst under the influence of alcohol".
The Commissioner, in making that submission, expressly refers to the Firearms Act, s 11(4)(c). That provision, in fact, refers to the applicant's intemperate habits or being of unsound mind.
Firstly, and for the reasons set out in paragraphs 55 to 58 above, I do not consider the incident that took place in May 2019 at the Hibernian Hotel shows wrongdoing on the part of Mr Kemball. I do not consider his behaviour, in having what must have been a very brief verbal argument with another person at a hotel, to be a matter of any significance to the present determination. As I noted above, the report relied upon by the Commissioner casts Mr Kemball as a witness, not a participant in the physical fight. Consequently, I reject the Commissioner's contention that "even if the Tribunal were to accept the Applicant's version of events that occurred on 3 May 2019 (the concession that a verbal argument took place in circumstances where the Applicant was intoxicated), this is consistent with the Respondent's submission about his character".
With regard to the 2014 Incident and the October 2019 Incident; I accept that both are relevant matters in a case such as this that involves the revocation of a firearms licence; Firearms Act, s 24(2)(a). However, I do not consider that two incidents spread over a period of nearly ten years in which no weapons of any kind were involved amount to a sufficient basis to conclude that Mr Kemball is not a fit and proper person to hold a firearms licence. Moreover, the only incident with physical violence occurred during the October 2019 Incident. With regard to the October 2019 Incident, the Tribunal accepts Mr Kemball's account that with respect to the assault, he responded violently in self-defence. Mr Kemball also admits that he ran naked on the street in Goulburn before the altercation and that police had asked him to dress and move on. I accept Mr Kemball's account because of the manner in which police proceeded to withdraw the assault charge against Mr Kemball on which the firearms suspension was made. In this regard, I also note that the Commissioner has not adduced evidence to contradict Mr Kemball's account as to why the police decided to withdraw the assault charge.
I accept that the 2014 and October 2019 Incidents show that Mr Kemball, in an intoxicated state, may exercise poor judgment and engage in disinhibited behaviour. However, I do not accept that his behaviour on those occasions is a proper basis for the Tribunal to conclude that he is not a fit and proper person to hold a firearms licence.
I note in passing that the decision under review referred to mental health concerns, the October 2019 Incident and the 2014 Incident. In oral submissions at the hearing, the Commissioner submitted that the Commissioner accepted that the psychologist's report supports granting a firearms licence but also submitted that there was little detail in that report as to how those conclusions were formed. The extent to which the Tribunal relies on the findings in the psychologist's report is set out above. With respect to the mental health issue and having regard to the matters set out in paragraphs 80 to 86, I am satisfied that Mr Kemball does not suffer from a mental illness that would preclude him from safely using and possessing firearms. Furthermore, I consider that Mr Kemball's experience and responses to work and relationship stressors were temporary, and in any event, such responses do not inexorably lead to the conclusion that it would not be in the public interest for him to hold a firearms licence or that public safety would be placed at risk if he were to hold possess firearms. This is consistent with the approach taken in Austin [58].
The Commissioner has also submitted that Mr Kemball was no longer a fit and proper person, partly because he had "failed to properly engage in a mental health assessment following the Notice of Suspension". There is no evidence cited for that submission. To the contrary, the evidence before the Tribunal was that Mr Kemball promptly attended a psychologist to whom he had been referred by his general practitioner, and the psychologist produced a report which answered the relevant questions put to her by the Commissioner. At its highest, the material in the s 58 Bundle indicates that Mr Kemball signed a medical authorisation on 2 November 2020. This appears to have been sent to the Firearms Registry and received by it on about 10 November 2020 - a week before the decision under review was made. The fact that the report was, in the Commissioner's opinion, lacking was a matter beyond Mr Kemball's control. It was open to the Commissioner, had it been considered that the report was inadequate for her consideration of whether to revoke Mr Kemball's licence or to assist the Tribunal in the current proceedings, to make further enquiries of the psychologist and attempt to clarify the assumptions.
As noted above, the other aspect upon which the Commissioner relies to submit that Mr Kemball is not a fit and proper person having regard to his traffic record. For the reasons set out in paragraphs 66 to 71 above, I do not consider Mr Kemball's traffic record supports that submission.
On the evidence before the Tribunal, neither his approach to obtaining a mental health risk assessment nor his traffic record demonstrates Mr Kemball's disregard for compliance with regulatory and licencing schemes.
In oral submissions at the hearing, the Commissioner's solicitor further submitted that the seizure of various animals due to the search warrant executed on 17 December 2020 was another matter where Mr Kemball demonstrated a disregard for a regulatory regime. I agree that the facts of that incident may indicate this. However, I consider that Mr Kemball's explanation about why had those animals contained both in his written statement and under cross-examination is more consistent with him being ignorant of the requirements for the keeping of those species rather than acting with disregard for, as the Commissioner submitted being "flippant" about, that regulatory regime. Furthermore, Mr Kemball's evidence under cross-examination was that all he now has, by way of a pet, is a bird. There is no suggestion in the evidence that he continues to breach the regulatory regime with regard to protected or prohibited species.

Public Interest

The Commissioner submits that the same grounds she relies upon to assert that Mr Kemball is not a fit and proper person are also those on which she submits that it would not be in the public interest for Mr Kemball to have a firearms licence. While, as noted above in paragraphs 26 to 30, the public interest test is broad and has an emphasis on public safety which differs in some respects from the individualist focus of the fit and proper person consideration, I agree with the Commissioner that in this case, the factual findings made with respect to the fit and proper person test largely apply to the Tribunal's consideration of the whether it is contrary to the public interest for Mr Kemball to hold a firearms licence.
Having regard, therefore, to the objects of the firearms legislation, the factual findings set out in paragraphs 37 to 86 above and relying on, but not repeating, the matters set out in paragraphs 87 to 97 above, I am also satisfied that it is not contrary to the public interest for Mr Kemball to hold a firearms licence.

Conclusion

Accordingly, and noting that his revoked firearms licence expired on 4 June 2021, I have determined that the correct and preferable decision is that Mr Kemball should be issued with a new category AB firearms licence. The grant of the licence is conditional upon Mr Kemball's demonstrating that he has renewed his membership with an appropriate hunting club or has provided the Commissioner with the necessary evidence that he has permission to shoot from the owner or occupier of rural land.

Orders

I make the following orders: 1. The decision under review is set aside. 2. In lieu thereof, order that the Applicant be issued with a category AB firearms licence for the genuine reasons of recreational hunting/vermin control on condition that he provides the Respondent with evidence of renewed membership with an appropriate hunting club or evidence that he has permission to shoot from the owner or occupier of rural land. 3. The publication and disclosure to the Applicant of evidence read or tendered by the Respondent on a confidential basis and in his absence is restricted to the Respondent and her legal representatives only, pursuant to the Civil and Administrative Tribunal Act, 2013 (NSW), ss 64(1)(c) and 61(1)(d). 4. Pursuant to the Civil and Administrative Tribunal Act, 2013 (NSW), ss 64(1)(c) and 61(1)(d) of the transcript and recording of that part of the hearing in these proceedings that took place in the absence of the Applicant and the contents of all paragraphs in these Reasons marked "[NOT FOR PUBLICATION]" are not to be published or released to the Applicant or the public.

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

Amendments 04 May 2023 - Paragraph 94 - second sentence changed from, "There is evidence…", to, "There is no evidence…" 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: 04 May 2023

Crimes Act 1990(NSW)

Summary Offences Act 1998(NSW)

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Judgment (27 paragraphs)

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Legislation Cited (6)

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