Economides v Commissioner of Police, New South Wales Police Force

NCAT Administrative and Equal Opportunity|2013-11-12

Background 1On 23rd April 2013 Mr Economides' firearms licence which he had held since 23rd April 2008, expired. The licence was for Category AB firearms for the genuine reason of Recreational Hunting/Vermin Control. He applied for a new firearms licence on 23rd April 2013. The new application was refused by the Respondent on 8th May 2013. Mr Economides sought Internal Review of the refusal on 6th June 2013. The refusal was confirmed by the Respondent on 17 July 2013. Mr Economides lodged an application for review in this Tribunal on 14 August 2013. 2The trigger for the Commissioner's decision to refuse the new licence in April 2013 was an incident on 27th February 2013 when Mr Economides experienced a diabetic hypoglycaemic event and ambulance and police officers attended his home in response. Mr Economides was not charged with any offence as a result of the incident. However the Commissioner concluded on Internal Review, it was not in the public interest for Mr Economides to be given a further firearms licence.

Relevant law 3The Firearms Act 1996 sets up a scheme for licensing people to possess and use firearms. 4The relevant subsections of s 11 of the Firearms Act are as follows: 11 General restrictions on issue of licences (1) The Commissioner may issue a licence in respect of an application, or refuse any such application. (3) A licence must not be issued unless: (a) the Commissioner is satisfied that Mr Economides 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 (4) Without limiting the generality of subsection (3) (a), a licence must not be issued if the Commissioner has reasonable cause to believe that Mr Economides may not personally exercise continuous and responsible control over firearms because of: (a) Mr Economides's way of living or domestic circumstances, or ...... (7) Despite any other provision of this section, the Commissioner may refuse to issue a licence if the Commissioner considers that issue of the licence would be contrary to the public interest.

Issues before the tribunal 5The bases for the Commissioner's initial refusal to renew Mr Economides' licence were that:

the Commissioner could not be satisfied that Mr Economides would personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances; and/or
it was not in the public interest for Mr Economides to hold a licence. 6Mr Economides wrote to the Commissioner requesting internal review of this decision on 6th June 2013 setting out the following main issues:
The circumstances of his telephone conversation with the Firearms Registry office on 16 May 2013 were that their file recorded that he had been convicted of a shoplifting incident at Bunnings in 2006 - whereas he had been found not guilty and the matter dismissed. "It came as a shock to me.... I am gutted that this record existed for four years without my knowledge...."
The AVO in favour of a former partner was revoked in December 2009.
The police had been called to his building on 17 February 2013 as a result of longstanding hostility to him from a neighbour arising from his role as President of the strata committee. The police had left after speaking to him.
(On 27th February 2013) the ambulance officers called the police as I was not allowing them to take blood to check my sugar levels because of these symptoms (of hypoglycaemia). I didn't threaten, abuse or hurt anyone, I just wanted to be left alone and at the time I felt that my personal space was being invaded. The arrival of the police only made the situation worse as they were very aggressive in their attitude. I refused entry to the police and told them that only the paramedics were allowed in. They didn't accept my request so I closed the door telling them that I was going to have my dinner as I had already injected myself with insulin. They entered the house without my permission and handcuffed me immediately in front of my nine year old daughter like I was a criminal......" 7The Commissioner's internal review decision analysed Mr Economides' submissions. The Internal Review decision affirmed the decision to refuse the licence, but did not rely on the ground set out under section 11(4) (a) that Mr Economides may not personally exercise continuous and responsible control over firearms because of his way of living or domestic circumstances. The decision to refuse the licence was based only on the public interest ground under section 11(7). The Commissioner was satisfied that the granting of the application would place public safety at risk. 8The issue for the Tribunal to determine is whether the Commissioner made the correct and preferable decision in refusing Mr Economides' firearms licence on this ground. 9Section 63 of the Administrative Decision Tribunal Act 1997 (the ADTA) provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Commissioner, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 10Section 63(3) of the ADTA provides that in determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

Evidence 11 The documentary evidence before the Tribunal was as follows: (1)Mr Economides' application for review in the ADT including a copy of his submissions to the internal review. (2)Copy of Police Service's section 58 documents which included the following

Mr Economides firearms licence and criminal histories,
COPS information,
internal review request relating to revocation of his firearms licence in 2003,
statement of reasons for revocation of firearms licence 3rd September 2003,
written decision of the Administrative Decisions Tribunal restoring Mr Economides' firearms licence 2nd August 2004,
notice of suspension 16th of March 2013,
reapplication for personal firearms licence on 3 April 2013,
notice of refusal 8th May 2013,
internal review request with supporting documents from Mr Economides dated 6th of June 2013,
internal review and statement of reasons dated 17th of July 2013 and
notice of application for review lodged in the ADT on 14 August 2013. (3)Statement from Inspector Bowtell (4)Notes from the Firearms Registry (5)Dr Savoulis' summonsed medical notes (6)letters from Mr Economides solicitors confirming the not guilty dismissal of the matter in Bunnings in 2006 (7)report of Dr Mary Girgis endocrinologist (8)report of Dr Savoulis 11th of November 2013 (9)Ambulance Service record of 27th of February 2013 (10)photos of Mr Economides' firearms storage (11)two statements of Angela Economides (12)statement of a Eleni Leontsini (13)reference of Peter Bull (14)property seizure form in relation to seizure of ammunition. 12A sound recording of a call made to triple 0 in respect of the incident on 27th February 2013 was played to the tribunal. 13Oral evidence was provided by:
Andreas Economides
Eleni Leontsini
Angela Economides
Dr Thomas Savoulis (by telephone) ; and
Inspector Bowtell.

Evidence of Mr Economides 14Mr Economides gave oral evidence. He had grown up using firearms to hunt and had also used firearms in the Army. His diagnosis of diabetes was made in April 1996 after an incident in which he went away for the weekend shooting with family and friends and became unwell. He was taken to St George Hospital. Since that time he takes insulin five times a day and tests himself regularly. He said he had had six or seven hypoglycaemic attacks since. 15He goes on long weekends on shooting trips in south-western New South Wales, seven or eight times a year - but not in Summer. He had been shooting last year with his former wife and his daughter three times. Sometimes he goes with workmates. Since the first instance of hypoglycaemia when he went hunting in 1996, he has not had a hypoglycaemic incident while hunting. 16He described the effect of an hypoglycaemic attack as being dizziness with shaking, talking and making no sense, losing balance and strength. He works doing maintenance, using power tools, on rooves and driving and has had no misadventure. He is skilled at adjusting his insulin levels. He has become very strict with his diet. He has a motor vehicle licence and his fitness to drive is checked every second year by his GP since the end of 1996, Dr Savoulis. 17 He noted that his relationship with his former wife Angela is now very stable although there had been some instances after they separated which led to the police seeking an AVO against him. His girlfriend since November 2012, Eleni, had only seen him hypoglycaemic for the first time in the incident of 27th February 2013. 18In relation to the incident on 27th February 2013 he said that he was cooking dinner for his daughter and his girlfriend Eleni. The next thing he knew, there were police officers at his front door. Two paramedics were also there. He heard someone, perhaps his daughter or Eleni calling his name. When he opened the door he saw the police officers, closed the door and walked back in. He said "the paramedics can come in but the police cannot." He realised that something was not right and went to his bedroom to get jellybeans in order to boost his blood sugar level quickly. Four police officers came into his room. He was sweating profusely and took his shirt off. He ordered them out. He had had surgery on his right arm and he said to them "Don't pull my arm I have problems with it." He could hear Eleni saying "Don't hurt him." 19He recognised two of the police as having attended at his home in relation to his guns some two weeks earlier. He didn't intentionally kick the police officers. He was on the ground most of the time then they pulled him up and handcuffed him on the bed. 20He was sitting on the bed because when he becomes hypoglycaemic he cannot use his legs. He reached into his backpack to get his jellybeans. He tested himself and had 12 to 13 jellybeans. His sugar level was then very, very high. He had insulin and signed a document for the ambulance officers. He said that he would not at that time have been able to pick up or fire a gun because of the effects of the hypoglycaemia. 21The police stayed at his premises for a little while afterwards. He didn't think he said "Fuck off" to the police officers because it isn't usually in his dictionary - but if he did he apologised. 22He understood that he had been verbally abusive to his daughter and his girlfriend because of the effect of the hypoglycaemia. He knew there was a person in his room but did not know who it was. He had said to his daughter "Who are you?" He denied having locked out his girlfriend and daughter. He said that they had gone out of the unit and he had closed the door. He didn't know why his daughter would have left the apartment. He did not recall Eleni trying to give him some jellybeans. He said that her offer of Diet Coke or water would not have been appropriate for him at the time as neither contained sugar which he knew he needed. 23He did not recall rejecting the assistance of the Ambulance officers. He said that he always cooperates with ambulance officers and never refuses their help. 24He showed the tribunal photographs of his firearm storage in his garage to illustrate the level of security applied to them. To get access to the weapons it takes some time as one has to remove the car from the garage, climb up a ladder and remove boxes which conceal the storage cabinet. It takes about 20 minutes to get a gun out and this was witnessed by the police who came to his premises on 16 March 2013 when the officers came to take his gun. He said that on 16 March he asked the police to take the ammunition when they took his guns but they declined to do so. He was nervous about putting it in the car to take it anywhere lest he be stopped and found to be carrying the ammunition. 25When asked why the hypoglycaemic event had ended up with him being handcuffed he said that perhaps he should have opened the door. He regretted it as he hadn't wanted his daughter to see that kind of event. He said that had he been approached differently the escalation of events would never have occurred. 26The Respondent submitted to the tribunal that had Mr Economides controlled his blood sugar levels better, it would not have occurred. The incident would not have escalated had Mr Economides listened to his daughter at the time or accepted help from his girlfriend Eleni. 27Mr Economides was asked whether he had ever been aggressive to ambulance officers previously and hence whether there was any reason why the ambulance officers might have called the police before attending. He referred to events in Castle Hill and one in Homer Street Earlwood - an event in his unit where he was having dinner and the police interfered. 28He was asked about events in December 2006 and again in March 2007 when he was admitted to the emergency department at Canterbury Hospital by his wife with hypoglycaemic events. He acknowledged an event in March 2003 when he was at Ryde Hospital when his blood sugar level was very low and he resisted police intervention. He said that at that time he was telling the medical staff what he needed. He could not recall any other incidents of hypoglycaemia. 29It was put to him that he continued to break the law by being in possession of ammunition when his licence had been suspended. He did not agree that he had been abusive and threatening to Firearms Registry staff over the phone in May 2013.

Evidence of Helen Leo - Eleni Leontsini 30Ms Leontsini had known Mr Economides for a year. The first time she had seen him in a hypoglycaemic state was in February 2013. When she saw him with his eyes glazed and his speech slowed down she gave him a glass of water or soft drink, as she had noticed that he always drank Diet Coke. He refused the drink. She didn't attempt to give him lollies or jellybeans. His daughter was stressed by the situation and Ms Leontsini called the ambulance. She then called Mr Economides's former wife. She said that when they became concerned about Mr Economides he indicated that he did not want them to fuss over him and the more they fussed the more irritable he became. He was not interested in cooperating with the ambulance officers. When the ambulance officers arrived she spoke with one of them outside the unit, while the other went in to speak to Mr Economides. She did not recall when the police arrived or how they gained access. Mr Economides appeared to be quite angry with her for calling the ambulance. She had not thought it necessary to call the police. She then corrected herself and said that Mr Economides was not angry - but that he did not want them around.

Evidence of Dr Savoulis 31Dr Savoulis had been Mr Economides' treating gp since the end of 1996. He had provided a report dated 24th of October 2013. He described typical symptoms of a hypoglycaemic attack as the person being sweaty, shaky, nervous, and weak with impaired mental faculties. The person could be a little bit irrational, angry, stubborn or sad. The person could lack coordination as their sugar decreased. They could become irritable or impatient. Once the hypoglycaemia advanced, the person may lose the capacity to reason. They would have little likelihood of being able to use a power tool. Provided a weapon was not in front of them they would be unlikely to be able to use a weapon. He thought it unlikely the person would be able to unscrew a wooden box to access stored firearms. 32He said that Mr Economides had been very compliant with diet and medication. He had responded well both to his advice and the endocrinologist's advice. However, even with the best management sometimes a person can go into a hypoglycaemic state. If a person worked hard the muscles needed glucose which leads to the level of glucose dropping. 33When asked how best to deal with someone who is in a hypoglycaemic state, he responded that early warning was the best. A cube of sugar, jellybeans or a drink usually prevents the hypoglycaemia deepening. Once the person had gone beyond this into a later stage of hypoglycaemia and had become irrational and angry, it was then very difficult for the patient to deal with the situation. Usually people around them had to deal with it. This was either by giving the person glucose or an injection of a glucose product to bring the blood sugar level up. He said he had never witnessed any of the seven instances of hypoglycaemia that Mr Economides had indicated. He said that seven episodes of hypoglycaemia over the period of time Mr Economides had had diabetes demonstrated good management. He had adjudged Mr Economides suitable to drive earlier in 2013 and he conducted regular reviews. 34Under cross-examination he said that he would not want Mr Economides to be using firearms when he was hypoglycaemic because of the irritability, confusion and lack of coordination induced by the condition. He said that Mr Economides had told him about the episode in February 2013. He agreed that one of the symptoms of hypoglycaemia might be not being able to recognise one's daughter. He was asked about the risks posed by a person with diabetes in using a firearm. He commented that if the person is having a hypoglycaemic event which was not managed when he had a firearm there would be some risk. He said there was always some risk that an insulin-dependent diabetic would have either a hypo or a hyper glycaemic episode. It could not be ruled out. The risks can be minimised. It was normal for someone having a hypoglycaemic event to resist assistance because as the blood sugar level reduces, the person can become resistant to treatment. He would be concerned if Mr Economides was on a hunting trip and became hypoglycaemic. Accidental discharge of a firearm then was of concern. The ability to store a gun and manage ammunition would be compromised if the commencement of a hypoglycaemic event were not corrected. However the weakness associated with hypoglycaemia would make it difficult for a person to use a gun.

Evidence of Angela Economides 35Ms Economides relied on her statements of 24 October 2013 and 6th March 2014. She had been married to Mr Economides for 11 years and during that time he had probably had 5 serious hypoglycaemic events. She said he would usually become lethargic - not aggressive. If an episode had gone too far he was unresponsive and it was difficult to get him to co-operate with her suggestions. She had called an ambulance for her former husband when he had been hypoglycaemic on two occasions. Usually the ambulance officer gives him an EpiPen which is quicker than other methodologies. She had arrived at Mr Economides's home on the 27th of February 2013 after the situation had been stabilised. 36She commented "There is no doubt that Andreas is a very proud man and can come across as stubborn and headstrong." 37When she and Mr Economides had initially separated it had been very difficult and Mr Economides had made threats to her however their relationship now is very stable and they see each other frequently. He has regular access with his daughter. She was not concerned by Mr Economides possessing firearms.

Evidence of Inspector Bowtell 38Inspector Bowtell had attended at Mr Economides's home on the night of the 27th of February 2013 having been flagged down by ambulance officers. His initial concern was for Mr Economides' child but also Mr Economides. Inspector Bowtell was present when the constable opened the door of the unit with the key from Ms Leontsini. He said the police involvement had only been to ensure that Mr Economides received treatment. Inspector Bowtell indicated that Mr Economides had said "fuck off" several times to the ambulance officers attempting to enter the unit to assist him. He didn't want the paramedics or the police. Once Mr Economides had been handcuffed and his blood sugar level tested he took the gel from the ambulance officers. Mr Economides had been civil once his blood sugar levels had been restored. 39Inspector Bowtell acknowledged that Mr Economides did not like police. His only dealings with Mr Economides had been on the 27th February 2013 and when he had come to Mr Economides' home to take the ammunition after the first day of hearing of this matter. Mr Economides had been polite. The police had determined to take no action about the incident on the 27th of February 2013 because they believed it was a result of hypoglycaemia.

Applicant's submissions 40Mr Economides noted that the Respondent had narrowed the scope of the initial decision to refuse his firearms licence to the impact that Mr Economides's health condition had on his behaviour leading to concern regarding the safety of the public. Mr Economides noted that in almost 17 years of holding a firearms licence there had been no concerns about his misuse. His firearms storage had always been compliant with requirements. There were no concerns about his way of living or domestic conditions. 41The primary concern was the events of the 27th of February 2013. Mr Economides contested the Respondent's versions of these events. He had not wished the police to enter his home and they had done so contrary to his protestations. He considered that the Police had used excessive force against him. He had not initiated any violence against the police. He had not breached his firearms obligations during the event. He knew he needed to eat and told the police this during the course of the confrontation. He had not been charged with any offence as a result of the events. 42Mr Economides referred to earlier events when he had experienced hypoglycaemia such as at Ryde hospital in March 2003 and Bunnings in June 2006. These earlier events were characterised by the fact that there was no violence nor firearms. They had not involved risk to public safety. 43In dealing with the issue of the risk to public safety, Mr Economides referred to the evidence of Dr Savoulis. Dr Savoulis said that anyone with diabetes is likely to have a hypoglycaemic events. At these times the person would become very weak and would not be able to perform complex actions. Mr Economides's diabetes was well controlled and he had certified him as fit to drive. 44Mr Economides said that the issue of his attitude to police had not previously been raised prior to the hearing. To the extent that his attitude to police was relevant to public interest, Mr Economides submitted that he is a person who stands up for his rights but does not do so in a way that is physically confronting. Ultimately he has deep respect for the law and is compliant with it. He is law-abiding and has no criminal record. 45Mr Economides referred to the tribunal's findings in the matter of Potts - see Potts v Commissioner of Police, NSW Police Service [2010] NSWADT 311. Mr Potts was characterised as a person who "tests the dragon", goading authorities. However the tribunal had found that Mr Potts was able to control this testing before going too far. His behaviour fell short of posing a risk to public safety. Mr Economides submitted that his behaviour was not as pronounced even as that of Mr Potts and the tribunal should find that he presented no risk to public safety. 46He also referred to the matter of Brett v Commissioner of Police - see Brett v Commissioner of Police, New South Wales Police Service [2002] NSWADT 115. Mr Economides submitted his own circumstances were similar to Mr Brett's in that the tribunal had found that Mr Brett had displayed a respect for the law - despite having had some difficulties. 47Mr Economides referred to the evidence of Angela Economides, his former wife and a firearms licensee and his current partner Eleni Leontsini, both of whom had expressed no concerns about Mr Economides continuing to hold a firearms licence. 48Mr Economides referred to the test set out in Ward v Commissioner of Police, New South Wales Police Service [2000] NSW ADT 28 at 28. He said that in his circumstances that "there would be virtually no risk" presented by his firearms licensing. Mr Economides had well-controlled diabetes having experienced only seven hypoglycaemic attacks in approximately 18 years. On no occasion during an attack had Mr Economides been in possession of a firearm, driving a motor vehicle or operating power tools. His firearms storage was compliant and were he to become hypoglycaemic the evidence was it would be unlikely that he would be able to negotiate accessing a firearm because of the weakness caused by hypoglycaemia. Mr Economides saw far greater risk in his capacity to drive. 49Mr Economides submitted that a finding that it was not in the public interest for him to hold a firearms licence due to the impact of his health condition on his behaviour, necessarily involves a finding that any person suffering type I diabetes should be refused a licence on the grounds that it is not in the public interest for them to hold such a licence. Such a finding could not be considered correct. 50Mr Economides' attitude to police other than when suffering a hypoglycaemic attack was entirely appropriate. He had co-operated:

with storage inspections;
when the police came to confiscate his firearms after suspension of his licence;
with Inspector Bowtell when he came to collect ammunition; and
when the police investigated unrelated matters such as alleged threats of violence at Mr Economides' block of units. 51The alleged angry interaction with the Firearms Registry was an expression of frustration at his application not being properly considered and the incorrect information held about the not guilty finding about the Bunnings event.

Respondent's Submissions 52The Respondent submitted that the tribunal had a discretion under section 11 (7) of the Firearms Act to refuse a licence on the basis of public interest. Public interest was an inherently broad concept. Firearms possession and use is a privilege which is conditional on the overriding need to ensure public safety. Ward's case meant that a decision maker must be satisfied that there is "virtually no risk" to public safety. 53Public interest can go beyond the character of the Applicant. It can include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system - see Constantin v Commissioner of Police New South Wales Police Force [2013] NSW ADT AP 16 at 33. The decision maker must exercise the discretion promoting the objects and principles of the Firearms Act. Mr Economides' individual interest in having a licence is subordinate to that of the public interest in ensuring public safety - see Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657. 54In this respect Mr Economides's type I insulin-dependent diabetes had first been diagnosed after an event on a hunting trip in April 1996. The Respondent referred to Mr Economides' hypoglycaemic symptoms of dizziness, loss of balance, lack of strength, shaking legs and behavioural change. The Respondent submitted that it was clear when Mr Economides was hypoglycaemic that he could not control or manage firearms safely. 55The Respondent referred to a number of hypoglycaemic episodes. The matter in March 2003 when he had been unco-operative with staff at Ryde Hospital was similar to the February 2013 event when Mr Economides had refused medical treatment and demonstrated an unwillingness to accept police involvement in order to assist. He had told the Commissioner at that time that: "I am a proud person and refused to be treated in this way I became very irritable." 56An endocrinologist, Dr Mary Girgis, had said in reference to the Bunnings incident that it was possible that mild hypoglycaemia could impair cognitive functioning. There had been another incident when hypoglycaemia had left Mr Economides prone on the floor of the bank until his wife came to collect him in December 2006. He experienced hypoglycaemic coma and was taken to Canterbury hospital having suffered multiple hypoglycaemic events in the days preceding. There was another hypoglycaemic event in March 2007 when he was taken to Canterbury hospital. This number of episodes caused the Commissioner to be concerned about the potential risk to public safety should Mr Economides again hold a firearms licence 57The February 2013 hypoglycaemic event was a matter of concern as he was unable to recognise his daughter; did not accept help from his daughter or girlfriend and he would not cooperate with the ambulance officers - causing the ambulance officers to call the police with whom he did not co-operate. 58The Respondent submitted that the nature of the episode, the reaction of Mr Economides and his refusal to cooperate with the police when they attempted to help him was of great concern in the context of his dealings with firearms regulatory authority. 59Dr Savoulis had expressed concern that if Mr Economides became hypoglycaemic during a hunting trip he would be concerned about the risk of accidental discharge if the condition was not corrected. Mr Economides would not be able to do complex tasks because he would be confused, with the diminished ability to reason. The Respondent pressed that the symptoms of a hypoglycaemic episode can include impaired mental faculties, irrational behaviour, and a lack of coordination or confusion. Dr Savoulis confirmed that any such episode would diminish Mr Economides's ability to safely store, possess and use firearms. Dr Savoulis made it clear that there is always a risk of a person with insulin-dependent diabetes becoming hypoglycaemic. 60Inspector Bowtell's evidence was that Mr Economides had rejected the help of the ambulance officers necessitating police attending. It had not been a matter of Mr Economides' mood changing once the police arrived. 61Mr Economides' attitude to the police was illustrated by the fact that Mr Economides had been verbally abusive to the Firearms Registry staff;

he had refused to allow police to enter his premises on the 27th February 2013 to assist him;
he had relied upon his pride as justification to refuse cooperation with the police; and
he had continued to possess ammunition in order to make a point in the proceedings. 62In the circumstances there was an inherent risk in Mr Economides possessing firearms. 63The Respondent denied the suggestion that its stand meant that all type 1 insulin-dependent diabetics should be prevented from having a firearms licence. The Respondent submitted that it was necessary for the tribunal to consider all of the circumstances of the applicant for a licence and arrive at a conclusion in relation to public safety. The tribunal needed to consider Mr Economides' condition, the serious episodes he had suffered; his ability to respond when hypoglycaemic and his attitudes to those trying to assist him such as his daughter, his girlfriend, the ambulance and police.

Findings of fact 64Some of the relevant facts in this matter are not controversial. 65Mr Economides was diagnosed with type 1 insulin-dependent diabetes in 1996 following an event when he was on a hunting trip. There was no misadventure resulting from this event. 66There have been at least seven serious hypoglycaemic events since this time. 67Most recently there was an event on 27th February 2013 about which some of the facts are contested. Where there has been a conflict between Mr Economides' evidence about this event with the evidence of another witness, the tribunal has preferred the evidence of the other witness. This is because the effects of hypoglycaemia may have interfered with Mr Economides' perceptions of the event and his recall. The tribunal finds the following occurred. 68Mr Economides was cooking dinner in the late afternoon. His girlfriend Eleni and his daughter were present. Mr Economides became hypoglycaemic. Eleni attempted to assist him but he did not accept this assistance. He was unable to recognise his daughter. He became hostile to their attempts to assist him. Eleni then called an ambulance. When the ambulance officers attended at the home he would not cooperate with their attempts to assist him. The police followed shortly after. It is likely that they were called by the ambulance officers. With the assistance of a key, police entered Mr Economides' home but he resisted their presence and indicated that he would not cooperate with attempts to treat him. The police eventually handcuffed Mr Economides, allowing the ambulance officers to assess and treat him. The hypoglycaemic event dissipated quickly and Mr Economides returned to civil behaviour. 69Mr Economides' rejection of assistance and his hostile behaviour to his girlfriend, the ambulance officers and the police is consistent with Dr Savoulis' description of what may happen when a person becomes hypoglycaemic. Dr Savoulis had indicated that a hypoglycaemic person may become irrational and irritable. I am satisfied that the behaviour that Mr Economides exhibited on this occasion in February 2013 was consistent with previous behaviour when he refused assistance at Ryde Hospital in March 2003. 70The tribunal refers to Mr Economides' description of himself as a proud man and that of his former wife Angela Economides as a very proud man who can come across as stubborn and headstrong. The tribunal is satisfied that his proud personality means that Mr Economides does find himself in oppositional situations. These are illustrated by the imposition of AVOs and frequent conflict in his role as strata president. There is no evidence however that he has engaged in physical violence. 71I am satisfied that his proud personality has meant that his past dealings with authority such as police officers, the Firearms Registry and even ambulance officers have again placed him in an oppositional role where he may have become verbally aggressive or abusive. The notes from the Firearms Registry confirm his verbal hostility. 72The tribunal is satisfied that as a result of a combination of the symptoms of hypoglycaemia and his proud personality, Mr Economides may not respond to or may become hostile to assistance offered by loved ones and those trying to assist him when he becomes hypoglycaemic.

Reasons and decision 73The principles of the Firearms Act are set out in section 3: 1) The underlying principles of this Act are: (a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and (b) to improve public safety: (i) by imposing strict controls on the possession and use of firearms, and (ii) by promoting the safe and responsible storage and use of firearms, and (c) to facilitate a national approach to the control of firearms. 74The Respondent submitted that it would not be in the public interest for the Applicant to be granted a licence. The tribunal has considered the Tribunal's decision in the matter of Constantin v Commissioner of Police, NSW Police Force [2012] NSWADT 172 at 77 where Judicial Member Huntsman said the consideration of "public interest" in relation to firearms licensing included "the public interest in ensuring the maintenance of a credible and consistent licensing regime, which ensures that the possession of a firearms licence is privilege in accordance with the principles and objects of the FA Act." 75In this matter the tribunal understands this to mean that the community must have confidence that the Commissioner and the tribunal are acting in a way that reassures the community that the decision maker is keeping the community's safety at the forefront in its decision making. 76A discussion of relevant case law about public interest and firearms licensing was set out by the Tribunal in the case of Martin v Commissioner of Police, NSW Police Force [2010] NSWADT 276: 69 The Applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: "The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." 70 In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at paragraph [25], the Appeal Panel said that the 'public interest' "is an inherently broad concept giving [the Commissioner] the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual". .......The Tribunal has previously found that any discretion must be exercised to promote the objects of the firearm legislation: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50 at [23] and the discretion is to be exercised in clear preference to the public interest than an individual's private interests. That view has been followed in numerous decisions and I agree that it is the correct approach to be taken in this matter. 72 In Wilkinson v Commissioner of Police, New South Wales Police Service [2002] NSWADT 59 Deputy President Hennessy stated at paragraph [25]: 25 As the Firearms Act does not list factors which a decision maker must take into account when exercising a discretion about revocation, the discretion should be exercised in a way which promotes the principles and objects of the Firearms Act. ... 77Accordingly in determining whether it is in the public interest for Mr Economides to regain his firearms licence, this tribunal returns to the principles behind the Firearms Act. These underlying principles set out in section 3(1) emphasise that firearm possession and use is a privilege, conditional on the overriding need to ensure public safety. Strict controls on the possession and use of firearms are imposed in the interests of public safety. In Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28, at paragraph 28, Deputy President Hennessy said that in terms of public safety, "the Tribunal must be satisfied that there is virtually no risk". 78What is of concern to the Tribunal is that Mr Economides frequently finds himself in situations of conflict. True enough taking on public responsibility such as strata management can expose the office bearer to hostile behaviour from other residents. The tribunal accepts that these neighbourhood conflicts are not necessarily Mr Economides' fault. 79It does not appear that he has been physically violent although it is clear he has made verbal threats putting the recipients in fear - prompting AVOs against him. It appears that Mr Economides' self-described "pride", and his appearance of being "stubborn" and "headstrong" can make him non-negotiable in times of crisis. This is a dangerous presentation for someone experiencing hypoglycaemia. 80The tribunal distinguishes Mr Economides' situation from that of both Mr Potts and Mr Brett. Mr Economides' does "test the dragon". Unfortunately it appears that when he becomes hypoglycaemic he is unable to control this "testing of the dragon," or his pride - most likely as an outcome of the symptoms of hypoglycaemia. He has experienced hypoglycaemic events in which his lack of co-operation with and hostility towards loved ones, ambulance officers and police has caused regrettable crises. 81Such an event while Mr Economides were in possession of a firearm would in the tribunal's view be extremely intimidating to bystanders. Dr Savoulis commented that he would not want Mr Economides to be using firearms when he was hypoglycaemic because of the irritability, confusion and lack of coordination induced by the condition. If a person is having a hypoglycaemic event which was not managed when he had a firearm there would be some risk. He would be concerned if Mr Economides was on a hunting trip and became hypoglycaemic. Accidental discharge of a firearm then was of concern. The ability to store a gun and manage ammunition would be compromised if the commencement of a hypoglycaemic event were not corrected. 82The tribunal rejects the assertion that refusing Mr Economides' application for firearms would necessarily mean that all persons with type 1 diabetes should be refused firearms licences. The tribunal has taken into account a number of aspects, including Mr Economides' past individual behaviours and his attitudes in dealings with others. 83The Tribunal considers that the risk of misadventure is low but exceeds an assessment of "virtually no risk" as set out in Ward's case. What is more, the impact of that risk coming to fruition is likely to be high. 84The Tribunal finds that it would contrary to the public interest for the Applicant to be licensed to possess and use firearms. The Tribunal finds that the combination of the Applicant's proud personality, his past hostility to authority and the demonstrated risk of him not co-operating with those attempting to assist him when hypoglycaemic, present an unacceptable risk of misadventure when he is in possession of a firearm. It would be contrary to the public interest, in ensuring public safety, for a firearms licence to be issued to the Applicant.

Order 85The decision of the Commissioner to refuse Mr Economides a firearms licence is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 September 2014

At a glance

Court

Decision date

Source

Judgment (15 paragraphs)

Parties

Cases Cited (3)

Cited By (1)