Buchanan v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2024-02-20

cation]" are not to be published or released to the applicant.

reasons for decision

The applicant Mr William F Buchanan applied to this tribunal on 11 August 2023 for review of a decision by the respondent Commissioner of Police to revoke his category AB firearms licence. The licence had been issued on 20 November 2022 to expire on 20 November 2027, but it was revoked on 7 June 2023.
The applicant is a grazier, a single man aged 63 who lives alone on his 1000 ha property near Narrabri. On 8 May 2009 he was requested to provide a mental health report following concerns in relation to his mental state. The request resulted from records indicating that he had made 21 separate police reports in relation to incidents of what he believed was malicious damage on his property between September 2006 and September 2009. Police attended the property and inspected the damage or marks indicated by the applicant but concluded that they resulted from normal wear and tear, marks left by animals or other causes not evidencing criminal activity, but noted that despite his apparent genuine beliefs he presented in most respects as a rational person having a high level of education.
A report dated 17 March 2010 from a clinical psychologist, Mr Sam Borenstein concluded that the applicant was not suffering from any mental illness or mental health concerns such as paranoia and delusions. On 1 February 2023 police again attended the property at the behest of the New South Wales Farmers' Federation following a report by the applicant of acts of vandalism that he believed had been ongoing since 1985, and had said there were shoe prints in the soil around the farm, which police believed to be caused by ants or to be non-existent. As a result of the visit, police held significant concerns for the applicant's mental health and the possibility that he had paranoia. The applicant's licence was for that reason suspended on 1 February 2023.
On 3 February 2023 the Firearms Registry again requested that he obtain a mental health risk assessment, outlining the reports made by him in February 2023. On 17 March 2023 a further psychologist's report was provided, by Mr Michael Kruger-Davis, which also attested to an absence of any mental illness or mental health concerns such as paranoia, delusions, or dementia., and also noted an absence of any mental illness or mental health concerns such as paranoia, delusions or dementia. The respondent did not consider that Mr Kruger-Davis's report allayed concerns in relation to the applicant's mental health and risk to public safety, however. Further, following the attendance of police officers at the property on 1 February 2023, the respondent concluded that the applicant's firearms safe was not compliant with the Act and on 7 June 2023 revoked his licence on public interest grounds.
The applicant applied for an internal review of the revocation decision pursuant to s 75(1)(d) of the Firearms Act on 12 July 2023, and the decision was affirmed following that review on 26 July 2023 (exhibit R1, pp 110 - 114). The applicant then sought a review of the revocation decision in this tribunal on 11 August 2023, which came on for hearing on 20 February 2024. Certain confidentiality orders were made by Ransome SM on 25 October 2023 and a confidential hearing was held immediately following the open hearing on 20 February.

Applicable legislation

Section 11 of the Firearms Act provides general restrictions on the issuing of firearms licences. Thus, under s 11(3) a licence must not be issued unless "(a) the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace" and "(c) the Commissioner is satisfied that the storage and safety requirements set out in Part 4 are capable of being met by the applicant".
Further, s 11(4) provides that a licence must not be issued "if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of - (a) the applicant's way of living or domestic circumstances, or…(c) the applicant's intemperate habits or being of unsound mind". The Commissioner may also refuse to issue a licence if of opinion that the issue of the licence would be contrary to the public interest (s 11(7)) and the regulations may provide other mandatory or discretionary grounds for refusing the issue a licence (s 11(8)).
The power to revoke a licence is to be found in s 24, which specifies mandatory and discretionary grounds on which a licence can be revoked. In particular, s 24(2) provides the following discretionary grounds for revocation: "(2) A licence may be revoked -… (a) for any reason for which the licensee would be required to be refused a licence of the same kind, or (b) if the licensee -… (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention".
A licence may also be revoked "for any other reason prescribed by the regulations" (s 24(2)(d). Clause 20 of the Regulation provides that the Commissioner may revoke a licence "if the Commissioner is satisfied that it is not in the public interest for the licensee to continue to hold the licence".
The general requirements for the safekeeping of firearms are set out in s 39, s 39(1)(a) stating that "A person who possesses a firearm must take all reasonable precautions to ensure -(a) its safe keeping". Category A and B licence holders must store a firearm when not actually being used or carried in a locked receptacle of a type approved by the Commissioner, and in particular: '(b) if such a receptacle weighs less than 150 kilograms when empty, it must be fixed in order to prevent its easy removal".
The issue in this application is thus whether it would be contrary to the public interest for the applicant to continue to hold a firearms licence by reason of: 1. there being reasonable cause to believe that he cannot meet the statutory storage and safety requirements by reason of any mental health problem or for any other reason, 2. that he cannot be trusted to have possession of firearms without danger to public safety or to the peace by reason of any mental health problem or other reason, or 3. that he has contravened a provision of the Act or regulations.

Applicant's evidence

The applicant did not file a statement as required by the tribunal's directions of 25 October 2023, but gave oral evidence at the hearing in which he said that his gun safe had been purchased from a local gunsmith and had been compliant at the time he installed it. It had been approved following a safe storage inspection by a Sergeant Collis in or about 2011. It had been secured by being bolted to the floor. He had purchased and installed a new safe in April 2023 which was rated for category H firearms.
In cross-examination he confirmed that he currently held no firearms. His previous safe had been purchased in about 1996, when as far as he knew it complied with the statutory requirements.
The applicant tendered a number of character references (exhibit A1), the contents of which are outlined below.

Respondent's evidence

In oral evidence Plainclothes Senior Constable Andrew Wainwright adopted his affidavits dated 7 December 2023 (exhibit R3, with annexures) and 16 February 2024 (exhibit R4, with annexures) in which he related that in company with Detective Senior Constable Leslie Wallace and Michael Collins from the New South Wales Farmers' Association he had attended the applicant's property at his request to investigate concerns that it had been vandalized. At the time, Mr Collins was the northern regional services manager for the Farmers' Federation.
The applicant showed them the various parts of the property where he suspected that vandalism had occurred. After they had finished their visit, D/SC Wallace wrote event report E 92599746, which begins by explaining that the applicant had shown them the concrete troughs shown in the annexed photographs (annexure B), a shed which they also photographed (annexure C) and what he said were shoe impressions in the soil around the farm (annexure D). In those photographs the applicant points to what he believed to be footprints left by the alleged offender or offenders. The deponent was unable to observe any footprints, seeing only very small marks in the soil that appeared to be ant tracks or something similar. The applicant then showed the group a further shed where he said he believed unknown offenders had caused damage to the roof (annexure E). He then showed them marks on his car and parts of the wall of the shed which he said had been vandalized by the offenders (annexure F). The applicant also showed them parts of his residence and a Toyota Landcruiser (annexure G).
In his affidavit dated 16 February 2024 (exhibit R2), D/SC Wainwright refers to event report E 92599746 as an accurate report of events during the visit to the property on 1 February 2023. After the three visitors had been shown by the applicant various locations on the property to inspect alleged vandalism, they requested to complete a safe storage inspection, to which the applicant consented. He observes that the applicant's firearms safe was not compliant with the Firearms Act. It was a light steel safe that was not fixed to the wall, ground or any other object. In his view it violated s 40(1)(b) of the Act, which requires gun safes weighing less than 150 kg to be fixed in order to prevent easy removal.
On checking the contents they identified three firearms that were not in the safe. When asked about them the applicant said "They are not missing, they are in my home". He then took them to where the three firearms were located, one behind the door, one in the hallway of the living area and one in the laundry. He was unable to explain why they were not stored in the safe. The deponent stated that "I am not currently certain if the firearms were loaded, however, I suspect that they were because I remember thinking as I left the property that the outcome of the incorrectly stored firearms could have been a lot different" (id., para 10).
Cross-examined by Mr Kable, the witness said he did not know of a Sergeant Collis and did not know of any other safe storage inspections carried out at the property. As the event report stated (exhibit R1, p 36), the safe storage inspection had "failed due to mental health concerns of firearms holder". Asked whether the safe was bolted to the floor, DS/C Wainwright replied that it was not secure as you could rock it, but he could not dispute that there were bolts securing it to the floor. It moved when you shook it, but he had not attempted to pick it up. The applicant had not been charged with any safe storage offence as they had exercised their discretion and treated the matter as one to be dealt with as a mental health issue. He said they try to act in good faith and they had gone to the property because of the events the applicant had reported. He was a good man and they did not wish to involve him in criminal proceedings if the matter could be handled on a mental health basis.
Detective Senior Constable Leslie Wallace adopted his affidavit dated 5 December 2023 (exhibit R4, with annexures) which stated that in company with D/SC Wainwright and Mr Michael Collins of the Farmers' Federation he attended at the property on 1 February 2023 at the applicant's request. When they arrived at the property, the applicant showed the two officers and Mr Collins to various parts of the property where he suspected vandalism had occurred. Following the visit he had written event report E 92599746.
The applicant had shown them the concrete troughs, the two sheds and the soil outside the shed where he said there were shoe impressions. The deponent thought the damage to the sheds was general wear and tear, not caused by vandalism. The deponent also photographed the applicant's car and parts of his house, which it the deponent thought had been caused not by unknown offenders but by weather deterioration and exposure of materials.
During the visit, the deponent observed various pieces of property sitting in and around the applicant's many sheds. He informed them that he had not experienced any trouble with thefts of his property.
In oral evidence D/SC Wallace stated that six firearms had been stored in the safe, but three had not. One was behind the door, one in the laundry and another may have been in a shed. The steel safe was out of date and did not have the three lock mechanisms now required. They had spent a good deal of time with the applicant and formed the view that he was delusional about the events he reported. His lack of safe storage of the three firearms meant that there was ready access to them. No charge for breach of the safe storage provisions had been laid as he had thought it more appropriate to deal with the matter through mental health processes and had made arrangements with Narrabri hospital to that end. They had exercised their discretion to proceed in that way rather than to "push the applicant before the courts" in criminal proceedings.
In cross-examination the witness said he could not now recall any other safe storage inspections on the applicant's property, although at the time when he had written his report he would have been aware of them via the integrated licensing system. The applicant's gun safe only had two locks, whereas now three are required. The safe was bolted to the floor, but not to the wall and there was movement away from the wall if it was shaken. As far as he knew, all the firearms had been unloaded and he could not recall seeing any unsecured ammunition. At the conclusion of the open hearing a confidential hearing was held at which the respondent adduced confidential evidence.
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Applicant's submissions

in written submissions (exhibit A2) Mr Kable contended that the respondent had favoured the opinions of local police, who are untrained in psychology and who were annoyed by Mr Buchanan, over the opinions of a psychologist who has been practising for over 36 years and who reviewed all the literature, met with Mr Buchanan and conducted a number of clinical assessments.
Mr Buchanan did not meet the DSM-V criteria for a neurocognitive disorder (be it Alzheimer's, Korsakoff Syndrome, Kreuzfeld-Jakob disease, dementia praecox or any of the other neurocognitive conditions). Meeting those criteria was essential as a diagnosis cannot be made otherwise.
Mr Kruger-Davis had spoken with Narrabri hospital mental staff on two occasions, 15 March 2023 and July 2023, and they confirmed that there was no mention of dementia in his file notes. The source of the "dementia diagnosis" was unclear, but in the Kruger-Davis report on his contact with Mr Buchanan, any neurocognitive disorder was not noted. That was also the opinion of the mental health team. Why would the Firearms Registry, he asked rhetorically, ask for a mental health assessment but then not accept the formulation of the client and the opinion of the psychologist?
At the hearing Mr Kable submitted that there had been no clinical diagnosis of a disorder. The applicant was a functional farmer, who might be labelled as eccentric, but there was no expert evidence of any disorder. Neither of the police officers had a psychology background and there had been no cross- examination about the photographs or his behaviour. Mr Kruger-Davis had performed extensive testing and had placed the evidence in context. His analysis was not simply based on the applicant's answers, and he had performed an analysis of the tests administered and risk assessment.
Mr Sam Borenstein in his psychologist report dated 17 March 2010 (exhibit R1, pp 136 - 145) also reported an absence of any signs of mental illness or mental condition, such that no psychiatric or psychological diagnosis was warranted. The applicant was not taking any medication that would have an adverse effect on his alertness, such as to operate a motor vehicle or machinery: "There is nothing in Mr Buchanan's history to suggest he is unable to exercise continuous or responsible control over firearms".
His character references were of high quality and came from people who had known him for a long time, including his sister. The case of Hindmarsh v Commissioner of Police [2017] NSWCATAD 254, [40] had shown that an observation of delusional thinking was not enough to justify licence revocation, there had to be a link to the licence holder's conduct. Hindmarsh had been unsuccessful in his application, but that was because he had used firearms inappropriately.
The applicant had possessed firearms for his whole life and his use and custody of them had never been an issue. He had spoken of incidents since 1985, but was not questioned about them. In fact there had been a cattle theft at that time and many reports of vandalism. There was no link between his mental health and his behaviour with firearms. His gun safe had been bolted to the floor but not to the wall. There had been no breach of the legislation, and in any case he had purchased and installed a new safe meeting category H standards.
There had been no proper investigation about the three firearms that were not in the safe and the circumstances giving rise to that fact. The evidence said nothing about safe storage and why they were not in the safe. They could have been out for a valid reason and they were not loaded. Further, he was alone on his property in a relatively remote area and there was no other authorized person who could have access to them. To say otherwise was pure speculation, raising purely theoretical possibilities, as understood in Webb. There could be no conclusions about the three firearms without an investigation.

Approach

Under s 63 of the Administrative Decisions Review Act 1997 (ADR Act) the tribunal's role is to determine whether, having regard to the underlying facts in the matter and the applicable law, the Commissioner's decision is the correct and preferable one. The tribunal is to review the merits of the original decision and is required to consider the evidence available at that time, together with any other or later material, so as to affirm the original decision, vary it or set it aside: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
The tribunal has jurisdiction to exercise any functions conferred or imposed upon it by the Civil and Administrative Tribunal Act 2013 (CAT Act) (s 30) and the Firearms Act, including the Commissioner's revocation of a licence or permit: s 75(1)(c). The tribunal is to make its own decision and there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security [1984] FCA 57; (1984) 1 FCR 354, 357.
Clear guidance as to how the act is to be administered generally is provided in the underlying principles of the legislation set out in s 3(1) of the Act, which declares that firearms possession and use is conditional on the overriding need to ensure public safety. Consistently with that approach, s 11(3) states that a licence must not be issued unless the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of firearms without danger to public safety or to the peace. Section 11(4)(c) also provides that a licence must not be issued if the Commissioner has reasonable cause to believe that the applicant may not personally exercise continuous and responsible control over firearms because of the applicant's intemperate habits or being of unsound mind.
The standard of proof applying in these proceedings is the civil standard, that is, the balance (preponderance) of probabilities. These are not adversarial proceedings. There is accordingly, no burden or onus of proof on either party (Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [34]) and the standards of proof in Briginshaw v Briginshaw (1938) 60 CLR 316 and s 140 of the Evidence Act 1995 do not apply: Bronze Wing International Pty Limited v SafeWork New South Wales [2017] NSWCA 42, [89] - [91], [127]; Sterjovski v Director-General, Department of Transport [2002] NSWADT 10, [10] - [12]. They do, however, provide guidance for the tribunal's exercise of jurisdiction.

Public interest

The main ground on which the respondent relies is that it would be contrary to the public interest for the applicant to continue to hold a licence. The "public interest" factor allows a consideration of issues going beyond the character of the applicant to be taken into account. They may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system: Constantin v Commissioner of Police, New South Wales Police Force [2013] NSWADTAP 16.
The underlying principles of the Act as stated in s 3(1) stress the overriding need to ensure public safety. The tribunal is required to exercise its discretion in determining licensing reviews in a manner that promotes the principles and objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23]. The applicant's personal interest in retaining his licence is subordinate to the public interest in ensuring public safety.
As the Court of Appeal observed in Kocic v Commissioner of Police, New South Wales Police Force [2014] NSWCA 368, [1], the power to grant an application under the Firearms Act places significant emphasis upon the need to control risks to public safety, with the concomitant need to assess the trustworthiness of an applicant. Similarly, in Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 the tribunal stressed that public safety is to be given paramount consideration.
Tribunal decisions have pointed out that the question of potential risk to public safety is not to be applied in an absolute manner, but in a nuanced way, taking account of all the circumstances, including attitudes, character and prior conduct, with an overriding focus on public safety: Martin v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 97, [64] - [66].
Thus, in Webb v Commissioner of Police, New South Wales Police Service [2004] NSWADT 110, [32], Montgomery JM when considering the question of public safety, stated that "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". Risk to the public includes, of course, risk to the applicant himself: Kavalieratos v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 117, [74].

Possible delusions

The first basis for revocation on public interest grounds relied on by the respondent relates to the applicant's mental health. It is not suggested that he has been diagnosed as suffering from any mental disorder, but rather that the evidence in the affidavits of D/SC Wallace and D/SC Wainwright demonstrates that on 1 February 2023 the applicant experienced delusions that unknown offenders had vandalized and walked upon the property. His beliefs were contrary to the observations of both officers, both of whom attended the property on that date, their opinion being that the damage caused to the property resulted from exposure and natural deterioration in the environment over time. Their contemporaneous account of the visit is the substance of event report E 92599746 (exhibit R1, pp 35 - 37).
When the officers, accompanied by Mr Michael Collins (the Northern Regional Services Manager of the New South Wales Farmers' Federation) arrived at the property on 1 February 2023, the applicant showed them various parts of the property where he suspected vandalism had occurred, including concrete troughs, several sheds and his car. He also showed police what he said were shoe impressions on the property left by the vandals.
The applicant said that the concrete troughs in his stockyards had been intentionally damaged by persons unknown. The two officers concluded, however, that it was obvious that the damage was caused by weather exposure and natural deterioration (exhibit R1, p 32). The photographs in the Wallace affidavit support that conclusion: exhibit R4, annexure B, pp 11 - 13.
The applicant then showed the officers a shed that he believed had been damaged by unknown offenders using a chisel or similar implement on the roofing iron and walls. The two officers observed the damage and concluded that it was consistent with the age of the building (70 years), not with vandalism. Again, the photographs support that conclusion: id., 14 - 17. The applicant showed the officers a second shed, the roof of which he believed had also been damaged by unknown offenders, but which the officers thought was caused by general wear and weather deterioration, not vandalism, a conclusion also supported by the photographs (id., 20 - 22).
The applicant then pointed to what he said was an impression of a shoe on the ground, but the police did not observe any footprints and thought that any such marks either did not exist or were ant tracks. From the photographs it does not appear that there are any such marks (id., 18 - 19).
The applicant then drew attention to his motor vehicle and said he believed unknown offenders had used a sharp implement to chip the bonnet. The officers observed a small mark on the paintwork which they thought more consistent with stone damage (id., 23 - 24).
He then said he believed that unknown offenders had been using an engraver to damage paintwork on the weatherboards of his house and thinks he has heard the sound of the engraver. As a result he now sleeps in the living room area. He also believed that unknown offenders were breaking into his house at night to grind away patterns on the sandstone fireplace (id., 33).
There are no photographs of any such damage to the house, nor any evidence that the officers observed any. It should be noted, however, that the applicant did not file a statement in these proceedings and that the evidence of the two officers thus stands unchallenged.
While on the property, the officers observed large amounts of valuable property sitting in and around the sheds, but the applicant had not experienced any trouble with theft (ibid.). On the basis of their observations and their interactions with the applicant at his residence on 1 February 2023, the two officers developed significant concern for the mental health of the applicant, believing that he suffers from paranoia and that he is incapable of possessing and using firearms. For that reason they impounded all his firearms (ibid.).
The evidence of the two officers, together with the photographs, leads to the prima facie conclusion that the applicant is or may be suffering from delusions and paranoia, in the lay understanding of those terms. He claims to see and hear threatening signs and noises that appear to have no basis in reality. There is also his bizarre notion that the damage to the concrete troughs was caused intentionally by unknown persons aged between 8 and 40 years of age (id., 32). Such precision, unsupported by evidence, strengthens that conclusion.

The references

On the other hand, the applicant tendered three supportive character references (exhibit A1), the first, dated 10 September 20-23, from Rev. Bernard Gabbott, Rector of Narrabri Anglican Church, which acknowledges that he had lost his firearms licence because of suggested mental health problems. The referee wrote that he has known the applicant through his role as assistant and vicar at Wee Waa Anglican Church (2010 - 2018) and Narrabri Anglican Church (2019 to the present).
During that time the applicant had been semi-regular in attendance and had attended Sunday services in that capacity. He had also had a number of private conversations with the applicant when they encountered each other in town. In all those interactions, the applicant had been lucid, aware of his surroundings and understanding of his environment. He has been intelligible in conversation, train of thought and awareness of, and participation in, his surroundings.
Dr Stephen Debus, an honorary research associate in zoology at the University of New England, wrote on 17 August 2023 that he has known the applicant as a friend and colleague for 23 years and has had regular contact with him on approximately a monthly basis in recent years. He had observed him through their mutual weekly attendance at Saint Mark's Anglican Chapel at the university campus throughout 2000 to 2003, and through his voluntary field assistance during Dr Debus's PhD work in ecology. While they were both students at UNE and regularly since then they met at monthly naturalists' outings in Armidale and other similar activities. They regularly socialize on those occasions, as well as in occasional reciprocal visits to Narrabri and Armidale. Mr Buchanan regularly makes monthly trips to Armidale to socialize.
Dr Debus had always known William to be of upright and impeccable character with mainstream Christian values, no "fringe" or extreme attitudes or beliefs, and to be of no risk to the public with respect to the use and storage of firearms. He had seen no sign of mental illness, or early dementia, nor a hint of any threat to use firearms in defence of his property against perceived vandalism. He is by no means a recluse in the sense of a hermit or shunning human contact and is conscientious about farm and gun safety. He is well educated. He had a good upbringing, and his father was a medical practitioner.
The applicant's reports of vandalism started in 2006, not 1985 as alleged. There had been cattle theft from the property in 1985 to 1987. William had followed the advice of the founding officer of the area police Rural Crime Squad to report any suspicious signs, no matter how trivial, because rural crime was under-reported. He had always denied access to his property by hunters and shooters, which could heighten a suspicion of revenge vandalism. He believes that the applicant's indignant response to his perception that the police were dismissing his concerns was out of character, and he had since withdrawn his opinions about police complicity. He had also upgraded his gun safe. It is highly unlikely that William would commit any firearm offence or present a risk to the public, or use firearms to defend his property, or that he would continue or adopt any behaviour of concern to police.
As a primary producer with a feral animal problem, he was obliged under law to control feral pigs on his land because of their economic and environmental damage, as well as the disease risk to livestock and humans. A suitable firearm was the safest, most efficient and most humane way to destroy feral pigs. Graziers also need the means to humanely destroy sick or lame livestock.
An undated reference by the applicant's sister, Mrs Jane Suranyi, B.Sc., declares that she has known the applicant for 62 years. He is a very social being, involved in birdlife surveys and campouts, cycling and Australian Fine Arts meetings. When she visits him at the property, they visit friends in and out of town and go to livestock sales and church services. When he visits them at Avoca Beach there is time to catch up with her and her husband and his nieces and nephews. In the meantime they have weekly telephone calls. He is polite and well-mannered and in her experience on the farm always manages his firearms responsibly and with great attention to safety. All the times they visited him as the children were growing up, there were no concerns for their safety as the firearms were always secured. William only used the firearms on the farm in the management of livestock and feral animals, particularly pigs, which he is required by law to control.
His gun safe was compliant when initially installed and he has now upgraded to a current category ABCD and H as required. He had managed the property responsibly for many years and maintained a small herd of cattle throughout the worst drought on record, hand feeding them daily. There are many tasks that need to be performed in the management of a farm and could not be done by someone suffering from early onset dementia. That label was an observation from an inspecting police officer during the disqualifying event and not a diagnosis from a medical professional.

The Kruger-Davis report

The applicant relied on 16-page psychological report by Mr Michael Kruger-Davis, a highly qualified psychologist with 37 years' experience (exhibit R1, pp 88 - 104) who had been asked to conduct a mental status examination and suicide risk assessment. The report concluded on the basis of assessments and interviews with the applicant that he is fit and proper to possess and use firearms in accordance with the legislation. Specifically, he presented to be of sound mind and on assessment did not currently present with depression, anxiety or overwhelming psychological distress. He did not have a mental disorder, personality disorder or substance abuse disorder as listed in the DSM - V. He does not drink alcohol or take illicit or prescribed drugs that would impact on his ability to possess and use firearms.
The report also concluded that the applicant does not pose a suicide risk. There were no predisposing, precipitating or perpetuating factors that would elevate his suicide risk profile. He has a number of sound protective factors that indicated he is looking forward to his future. He currently holds no fears for his future. There were therefore currently no factors that would indicate that he would not be able to exercise willpower and continuous control if he were to possess and use firearms.
While the report is supportive, the respondent criticized it on the ground that it was premised on incorrect information. The background information statement recited that "He stated that he has never experienced auditory, visual or olfactory hallucinations" and that "He denied delusions and dissociations". While there may not be clinical evidence of hallucinations, there appears to be a significant amount of evidence suggesting delusional perceptions. Asked about those denials, Mr Kruger-Davis said that if he knew a client had given him false information he would still have to go back to the DSM and look at all the symptoms, not just one or two. There had to be a mental health syndrome.
Mr Kruger-Davis said that if a client claimed that there was a shoe print on the ground but there was none, that would change whether he looked at one system or overall. One such point would form part of an overall appraisal. Also relevant would be whether the client could perform life functions, have normal human relations and how a misperception about a shoe print or whether there had been grinding of a sandstone fireplace would affect his ability to function in life. He agreed, however, he that if he had been given false information and was not aware of the fact, that would affect his conclusions.
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Dr Debus attributed the applicant's numerous reports to police to his implementing of a recommendation by the founding officer of the local rural crime squad that he should not hesitate to report anything unusual, no matter how trivial it may seem. There had also been a spate of cattle thefts in the region. Again, the character references contain no suggestion of delusional behaviour and portray a normal, well-balanced middle-aged man who manages a large cattle property and a sizeable share portfolio prudently and efficiently.
Mr Sam Borenstein's psychological assessment of 17 March 2010, though perhaps dated, also merits attention. He refers to letters from Dr Keith Evershed and Dr Saffar Hussein, both of whom attest to an absence of mental illness or history of it for Mr Buchanan. He notes that the applicant said his property had been subject to a variety of incidents of malicious damage since 2003. Gates had been left open and livestock mixed up. There had been damage to vehicles and farm equipment, and he said there had been holes cut in shed roofs and gutters pulled down. He believed young persons had come onto the property and the motivation related to a grudge of many years over the applicant's refusal to allow others to shoot on his property.
Mr Borenstein concluded that the applicant did not suffer from a mental illness or mental condition. He was anxious and sensitized to the possibility that he was the subject of a grudge, but that did not constitute a paranoid idea or delusion. He was traumatized with regards to certain events that led to damage to his property. There were no psychotic features to indicate frank paranoid illness, such as paranoid schizophrenia. He did not suffer with pervasive distrust or suspicion of all people, nor was he preoccupied with unjustified doubts about loyalty or trustworthiness of friends or associates. He maintained a social group and had entered into significant relationships. He had responded to real events that led to damage on his property and were not regarded as a figment of his imagination.
Mr Borenstein saw nothing in the applicant's history to suggest he was unable to exercise continuous or responsible control over firearms. There was evidence that he was able to form rational judgments and exercise willpower to control physical acts. He was able to manage his affairs and had made sensible decisions to manage his property in the context of a prolonged drought. He managed a sizeable share portfolio, testimony of his ability for rational judgment and executive skills. There was nothing in his history to suggest he suffered from a mental condition or was at risk of putting public safety in danger by possessing or using a firearm.
There is thus considerable evidence to support the view that nothing in his psychological makeup would contain the risk to public safety were he to possess firearms. He is a man aged 66 of good character and above average education who has no criminal convictions and never been the subject of a diagnosis for a mental health problem. He has no history of violence, or of threatening violence and has held firearms licences for over 30 years without coming under adverse notice until the event of 1 February 2023. He drinks very little, has no record of abuse of alcohol or drugs and has normal relations with family and friends.
It is also true that it is in the public interest for law-abiding primary producers to have access to long arms for the protection of the environment and primary industry. The area where the applicant's property is located has a real and recognized problem with feral pigs, and firearms are the most efficient and humane way of controlling that problem, as well as of putting down sick or injured livestock.
And yet the problem remains that the applicant's most recent psychological assessment is premised on the assumption that he has never suffered from delusions. By ordinary standards of behaviour, that assumption is not only false, but also goes to the heart of the concerns that led to the suspension of his licence in the first place.
Mr Kable pointed out that in Hindmarsh, Dinnen SM had said that the diagnosis of delusional thinking was not in itself enough to warrant licence cancellation. There had to be a link between the mental state and the subject's conduct: Diagnosis of mental health issues or even general concerns regarding an individual's mental health are not sufficient to demonstrate that there is a risk to public safety as a result of that individual holding a firearms licence. There has to be a demonstrable link between the mental health issues or individual's thought processes and how they are manifested or affect an individual's conduct so as to result in a risk or increased risk to public safety (at [40]).
In the present case, the event report relates that: The POI [Mr Buchanan] showed Police his home. He believed unknown offenders had been using an engraver to damage paintwork on the weatherboards of his home. He believes he has heard the sound of the engraver and now sleeps in the living room area. The POI also believes unknown offenders are breaking into his house at night to grind away patterns on the sandstone fire-place" (exhibit R1, p 33).
By adopting the practice of sleeping in his living-room because he believes he has heard an engraver damaging the walls of the house and grinding patterns into the sandstone fireplace represents a conscious changing of his conduct in response to what appears to be a delusional perception. The change in conduct does not involve firearms as such, but Hindmarsh does not suggest that there must be a direct link with firearms use or storage.
[Not for publication]
The above considerations lead to the conclusion that in the absence of expert evidence focusing on the specific issue of delusional thinking and the effect, if any, that it would have on his conduct, and in particular his use and storage of firearms, there is a non-theoretical risk to public safety, as understood in Webb, such that it would not at present be in the public interest for him to hold a firearms licence, and I so find.

Safe storage

The issue of safe storage as a second ground for revocation of the applicant's licence arose from D/SC Wainwright's affidavit of 16 February 2024 (exhibit R2), which also related to the visit of the two officers to the applicant's property at his request on 1 February 2023. After having been shown the various locations on the property to inspect alleged signs of vandalism, the officers requested to complete a safe storage inspection of the applicant's firearms. He consented to the request.
He showed them his firearms safe, which was described as a light steel safe, which was located at the end of the lounge room living area. The safe was not fixed to the wall, ground or any other object. In cross-examination the witness conceded that the safe might well have been bolted to the floor, but as there was movement in it if it were shaken, he considered that it was not "fixed" as required by s 40(1)(b).
The officers then conducted a check of the firearms in the safe against the list of nine firearms registered to him and found that three were not in the safe. When asked where they were, the applicant had said "They are not missing, they are in my home". He then took them to the locations of the three firearms. One was behind a door; one was in the hallway of the living area and one was in the laundry. The applicant had been unable to explain why they had not been stored in his safe.
The deponent continued, "I am not currently certain if the firearms were loaded, however, I suspect that they were because I remember thinking as a left the property that the outcome of the incorrectly stored firearms could have been a lot different" (at para 10). The affidavit then states, "I did not take any photos of the Applicant's three incorrectly stored firearms because our purpose in attending the Applicant's property was to investigate the alleged vandalism, not to conduct a safe storage inspection" (at para 11). The event report concluded, "Safe storage inspection failed due to mental health concerns of firearms holder" (exhibit R1, p 36).
As regards the submission that the safe was not compliant because, as it had movement in it, it was not "fixed" as required by the Act, it may be noted that the context of s 40(1)(b) clarifies the Legislature's intention. The provision states that a safe weighing less than 150 kg "must be fixed in order to prevent its easy removal". It does not state that the safe must be fixed in such a way that there is no movement in it. It was not disputed that the safe in question was bolted to the floor and could not easily have been removed. I therefore find that the applicant's safe at the time did not infringe the provision. He has now installed a new safe that satisfies a much higher standard.
The applicant offered no explanation for his failure to store the three firearms safely in accordance with s 40(1)(a), however. Mr Kable submitted that they might have been taken out of the safe for legitimate purposes, but there is no evidence from the applicant as to what any such purposes might have been.
On the important question of whether any of the three firearms was loaded, the evidence is rather conflicting. In his oral evidence D/SC Wallace said they were not loaded, and he did not think he had seen any unsecured ammunition. D/SC Wainwright's affidavit states that he was "not currently certain if the firearms were loaded" but suspected they were because on leaving he mused that the visit might have had a different outcome.
It seems unlikely, however, that the officers would have proceeded to take possession of the firearms without performing the standard safety precautions, which include cycling the action to ensure that the firearm is not loaded. If any of them had been loaded, that would have been a matter to which the officers would certainly have drawn attention in their reports and evidence. No unsecured ammunition was seen.
In the event, no safe storage charges were laid. D/SC Wainwright said the officers had exercised their discretion not to do so. They had been called because of the events reported by the applicant and had asked him if they could perform a safe storage inspection. He said the applicant is a good man and they try to act in good faith. They had thus dealt with the matter as a mental health event. D/SC Wallace also said that in the exercise of their discretion they had decided it was more appropriate to handle the matter through mental health procedures. He had arranged with Narrabri hospital to do so, rather than "push him before the court" in criminal proceedings.
The safe storage contravention was an isolated episode in an isolated area where there was no immediate danger to any person. The applicant has now installed a safe of a far higher standard and there is little likelihood of any repetition. In the circumstances the transgression does not rise to the level of warranting license revocation in itself, and I so find.

Conclusion

On all the evidence, both open and confidential, there are grounds for concern about the applicant's ability to exercise safe and continuous control over firearms in view of his apparent suffering from delusional perceptions. That concern is not allayed by his highly supportive character references from people who know him well, nor for that matter by his perfectly normal demeanour at the hearing, nor by his recent psychology assessment, given that it was based on an apparently false crucial assumption about whether he had ever suffered from delusional thoughts.
In the absence of recent expert evidence to the contrary, I conclude that there remains a real and appreciable risk, as that phrase is understood in Webb, that restoration of the applicant's firearms licence could at present give rise to a risk to public safety and that consequently it would not be in the public interest for him to hold a licence, and I so find. The decision under review is thus affirmed and the existing confidentiality orders are continued.

Orders 1. Decision under review affirmed. 2. Pursuant to s 64(1)(c) of the CAT Act, the publication of the confidential material and confidential exhibit CR6, or matters contained in the confidential material and confidential exhibit CR6 is prohibited. 3. Pursuant to s 64(1)(d) of the CAT Act, the disclosure of the confidential material and confidential exhibit CR6, or matters contained in the confidential material and confidential exhibit CR6, is restricted to the Commissioner, the legal representatives for the Commissioner and the tribunal. 4. Pursuant to ss 64(1)(b). 64(1)(c) and 64(1)(d) of the CAT Act, the publication and recording of the confidential hearing of these proceedings, including confidential exhibit CR6 and any evidence given during the hearing, is prohibited and the contents of all paragraphs in these reasons marked "[Not for publication]" are not to be published or released to the applicant.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 February 2024

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