Alameddine v Commissioner of Police, NSW Police

[2007] NSWADT 302

CITATION:	Alameddine v Commissioner of Police, NSW Police [2007] NSWADT 302
DIVISION:	General Division
PARTIES:	APPLICANT Said Alameddine RESPONDENT Commissioner of Police, NSW Police
FILE NUMBER:	063297
HEARING DATES:	2 May 2007, 30 July 2007
SUBMISSIONS CLOSED:	28 August 2007
DATE OF DECISION:	20 December 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Security Industry Act - security industry licence -grant of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 Director of Public Prosecutions v Smith (1991) 1 VR 63 Haining v Commissioner of Police [1999] NSWADT 6I J v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 McDonald v Director General of Social Security (1984) 1 FCR 35 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247Q R v Commissioner of Police, NSW Police [2006] NSWADT 307
REPRESENTATION:	In person W Pisani, agent
ORDERS:	The decision to refuse Mr Alameddine's application for a security industry licence is affirmed.

1 Mr Alameddine applied for a Class 1ABC security licence unde the Security Industry Act 1997 (“the Act”). A delegate of the Commissioner of Police refused Mr Alameddine’s application on the basis that Mr Alameddine was not a fit and proper person to hold such a licence and that it is not in the public interest for him to do so.

2 In reaching this decision, the Commissioner’s delegate referred to a number of Police reports, printouts from the Computerised Operational Policing System (“the COPS system”) and printouts from the Integrated Licensing System (“the ILS”). The delegate declined to provide Mr Alameddine with further information regarding those reports, in accordance with section 15(7) of the Act.

3 The decision to refuse Mr Alameddine’s application was upheld after an internal review. Mr Alameddine has applied to this Tribunal for external review of the determination.

4 The matter was heard on 2 May 2007 and 30 July 2007. The earlier parts of the hearings were held in the presence of Mr Alameddine and Mr Pisani, the representative for the Commissioner. The later parts of the hearings were held in the absence of Mr Alameddine. Each party made submissions.

Confidential hearing

5 Generally, Tribunal hearings are held in public. However, under section 75 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”), the Tribunal has the power to order that a hearing be conducted either wholly or partly in private and to make an order prohibiting or restricting the disclosure of evidence given before the Tribunal to some or all parties. Mr Pisani sought to have a confidential hearing in this matter and I agreed to that request. In the absence of Mr Alameddine, I heard from Mr Pisani as to the nature of the material he wished to put before the Tribunal. Having heard Mr Pisani’s submissions in relation to the material that he wished to tender to the Tribunal on a confidential basis, I formed the view that the confidential information is ‘of such importance and cogency that justice is more likely to be done by receiving the information in confidence and denying the party access to it than by refusing an order to exclude the party.’ Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247.

6 I determined to proceed on that basis and advised Mr Alameddine accordingly. Consequently Mr Alameddine was not made aware of the material that was tender on a confidential basis.

7 I agreed to hear from a witness for the Commissioner and to consider the relevant material on a confidential basis. I have given weight to this confidential material and any reference to that material is deleted from the published reasons. Those parts of the decision where the confidential material is discussed are identified as “Subject to suppression order”.

8 The brief of evidence filed for the Commissioner contains the material provided to the Commissioner in support of Mr Alameddine’s application, the original determination and the internal review determination.

9 The confidential material tendered to the Tribunal included:

[Subject to suppression order]

10 Mr Alameddine gave evidence that he has never been involved in criminal activity and disputes the Commissioner’s view that it is not in the public interest for him to hold a licence.

11 Contained on the brief of evidence are relevant certificates held by Mr Alameddine. He also provided two references from Ms Margaret Gaal, a Justice of the Peace and Dianne Thurn, a consultant. Each has known Mr Alameddine for a number of years and has found him to be responsible person who is suitable to hold a position as a security officer.

12 Mr Alameddine addressed the Commissioner’s publicly made assertions regarding his past conduct. He acknowledges the allegations that he was involved in an assault n March 2006 but asserts that he was the victim rather than the perpetrator in that incident. He also denied any knowledge of the presence of drug related paraphernalia said to have been located at premises where he resided. He conceded that he has a bad driving record but says that it was in the past and that it should not prevent the grant of the licence. He is unable to comment on the Commissioner’s confidential material.

13 Mr Alameddine asserts that he is a fit and proper person to be granted a security licence and that there is no public interest reason to preclude the grant of the licence.

14 He said that he had to travel to Newcastle to undertake the training to obtain qualifications to obtain the licence at a cost of about $3,500. Prior to undertaking that course he had to obtain a security clearance from the Commissioner. The Commissioner raised no objection at that time and he was given the security clearance. It was only after completing the course that he was refused the clearance.

15 Mr Alameddine said that he has gone to significant effort to obtain his qualifications and has incurred significant expenses in doing so. He contends that the Commissioner had ample time to consider his request for security clearance prior to him undertaking the course and the refusal should have been made at that time. He says that it is unfair to now refuse his application.

The Commissioner’s case

16 Constable Demien Murphy provided evidence that on 5 March 2006 he attended premises where Mr Alameddine resided after being advised of a domestic assault that was said to have occurred at that location. An allegation of an assault was made against Mr Alameddine and, as a result, he was placed under arrest for assault and taken to the Bathurst Police Station. Bathurst Local Court subsequently dismissed the charge.

17 Constable Murphy also gave evidence of drug related paraphernalia (plastic bags, scales etc) found on the premises. He conceded that no drugs were found on the premises and that no charges were laid in relation to that issue.

18 The Commissioner also relies on Mr Alameddine’s traffic record and history of other offences. The details of this record are set out in the internal review reasons for decision in the following way:

“16. I have taken into account the details of the offence committed by you and note as follows;

H 21099968 "Drive While Disqualified from Holding a Licence".

- About 1.20am on Saturday the 26th of June 2004 police were patrolling in a westerly direction upon Neeld Street Wyalong.

- At this time, police were stopped by a motorist who informed police that they had just sighted a white motor vehicle registration UDP-781 at the Ampol Service Station in Wyalong. He claimed that the vehicle looked as though it had been involved in a motor vehicle accident, and that he believed the persons in the vehicle were going to drive it to Bathurst. Police attended the Ampol service station a short time later and sighted a white Ford Telstar NSW registration UDP-781 pulling away from the fuel bowsers to turn right onto Neeld Street.

- Police observed that the vehicle had extensive damage to the passenger side. The pillar between the front and rear passenger doors was crushed into the centre of the vehicle, resulting in the roof buckling.

- The front and rear passenger side windows were boarded up with cardboard and duct tape. The vehicle pulled onto Neeld Street and was heading in an easterly direction near Emu Street where it was stopped by police approximately 100 meters from the Ampol Service Station.

- The Driver of the motor vehicle, the Accused Said ALAMEDINE was seen to exit the vehicle through the driver’s side door. Police approached him and asked what had happened to the vehicle.

- The Accused stated that it had been involved in an accident a short time before, out of West Wyalong and that they had driven the vehicle into town for assistance.

- He stated that he was driving the vehicle so as to get home to Bathurst. Police conducted a roadside random breath test which returned a negative reading. Police obtained the accused's details and a licence check was conducted by way of Police Radio.

- At this time police found that the Accused is disqualified from driving a motor vehicle from 12/08/2002 until 12/08/2007. The vehicle was defected by way of major grounding and the Accused was issued with a Field CAN for the matter now before the court. . At the time of the incident, the weather was raining, the roadway was wet, traffic was medium and it was night time.

- H 21039353 "Not Resister Class of Companion Animal - Not Dangerous Dog" "In Charge of Dog Attacks etc Person etc -Dangerous Dog".

...

- H 16034265 "Drive on Road While Suspended"

- About 11:30 pm on Thursday the 5th day of September 2002, police observed the defendant driving a red Holden Gemini Sedan, registration number being, WPS-939 in a easterly direction along Lord Street Bathurst.

- Police were aware that the defendant was a suspended driver.

- As a result of this, police followed the vehicle, for a short distance before eventually stopping the vehicle at the intersection of Keppel and Havannah Streets. Police spoke to the defendant, in relation to his licence status.

- The defendant stated to police, that he was a current the holder of a N.S.W .drivers licence.

- As a result of this, police made further enquires, in relation to the current licence status of the defendant via police radio.

- Police radio confirmed, the defendant was currently suspended, and that he had been notified of his suspension by Bathurst Highway Patrol.

- H 15422069 "Drive on Road While Suspended"

- On Saturday, 25 August 2002 at 9.30am, police drove into Halliday Place Bathurst to make enquiries in relation to a malicious damage matter.

- At the time the defendant was seen about to step into the drivers seat of motor vehicle WPS- 939.

- He is well known to police and his licence is currently suspended. The defendant looked at police and then got back out of the vehicle and closed the door.

- As police travelled down to the end of Halliday Place to turn around, the defendant then opened the driver’s door again and sat in the drivers seat.

- Police then located the residence they were looking for and pulled up about 30 meters directly behind the vehicle that the defendant was sitting in.

- As police got out of the police vehicle, the defendant remained seated in the drivers seat without the engine running.

- As police then walked to the residence of 23 Halliday Place they had to walk down a small narrow alley way. After taking three steps into the alley way, the vehicle in which the defendant was seated, was heard to start and the engine revved loudly.

- Police then immediately returned to the street to see the defendant accelerate west in Halliday Place and make a right turn into Stack Street. Police then got back into the police vehicle to catch up to the defendant. The defendants vehicle was then located a short distance later in Kenny Place, unsecured.

- The defendant had abandoned the vehicle and ran south into neighbouring back yards of residential houses.

- The defendant could not be located.

- The defendant was seen clearly by police as they arrived in Halliday Place. He was wearing a black beanie and a dark coloured sloppy joe.

- He looked straight at the police and was seen to get in the drivers seat. There was no other person near the vehicle when it accelerated away.

- The defendant still had his dark sloppy joe and beanie on as he was seen leaving Halliday Place and making a right turn into Stack Street.

- The defendant was originally spoken to on the 20 July 2002 for a driving offence by this reporting officer whereby he stated that he was unaware that his licence was suspended. He was informed of his licence suspension.

- RTA records show that the defendants Class C Licence No: 12910915 had been suspended for fine default to commence on the 11.6.2002.

- At the time of driving on the 25 August 2002, the defendant was the sole occupant of the vehicle. As the identity of the defendant was well known to police it was pointless to engage in a foot chase with him. His residence at 97b Seymour Street Bathurst was visited the next day at 5.00pm, being Monday 26 August 2002.

- The vehicle driven by the defendant, WPS-939, was parked in the carport of that residence.

- The defendant was spoken too and informed that he would be reported, by summons, for the offence of driving whilst suspended.

- The defendant denied that he was the driver at that time. The defendant stated to police, "I thought you'se couldn't fucken do nothing unless you get caught." The defendant admitted that he was the owner of the vehicle and was in the process of changing the registration details.

- H 16746789 "Drive on Road While Suspended"

- At 8.00am on Thursday the 8th of August 2002, Police were travelling west on the Sydney Road, Kelso.

- At this time police saw a red Holden Gemini registration number WPS939 travelling east on Sydney Road.

- Police immediately noticed the defendant occupying the driver’s seat, driving the vehicle.

- Police knew the defendant had a suspended licence. The vehicle was followed into the rear yard of an industrial premises on Sydney Road.

- As the vehicle pulled in police lost sight of the vehicle momentarily.

- When the vehicle came back into sight police saw the defendant close the driver’s door and walk away from the vehicle.

- Two other occupants were seen to close the two doors on the passenger side. The defendant protested that he was not the driver. In relation to this the two passengers were of Caucasian appearance whilst the defendant is distinctly Middle Eastern in appearance.

- The defendant was arrested and taken to the Bathurst Police station where he was charged with driving whilst suspended.

- H 14599144 "Drive on Road While Suspended"

- About 8.55pm on Saturday the 20th of July 2002, Police observed the defendant Said Ahmed Alameddine driving a white Ford sedan registration number PQD-552 upon William Street Bathurst.

- The vehicle was travelling in a southerly direction past The Oxford Tavern Hotel.

- Police observed the defendant to be wearing a black beanie and a dark coloured jumper.

- Police turned to follow the defendant for the purpose of subjecting him to a random breath test.

- As Police commenced to follow him, his vehicle turned right into Piper Street. He then accelerated rapidly before turning left into George Street.

- At that point it became evident to Police that the defendant was trying to avoid apprehension.

- Police were forced to follow the defendant at a speed above the speed limit in an effort to catch up to his vehicle.

- Police then observed his vehicle turn left into Lambert Street. As Police entered Lambert Street they saw the vehicle parked against the kerb and the defendant alighting from the driver's door.

- Police then got out of the police vehicle and approached the defendants vehicle were they saw a female seated in the drivers seat.

- The defendant was spoken to in relation to his manner of driving to which he replied "I knew you guys were after me and I became paranoid because I've got a stack of unpaid fines at the moment. Yes I was trying to get away".

- Police then conducted a radio check of the defendant’s licence which revealed his licence had been suspended on the 11/06/2002 due to fine default.

- He was again spoken to in relation to his licence to which he denied having knowledge of the suspension.

- He told Police that he had received notification from the State Debt Recovery Office stating that all vehicle registration’s in his name were suspended however he claimed the notification did not mention his drivers licence.

- Police were of the opinion that due to the defendant's manner of driving and his admissions that he was trying to avoid apprehension, he was aware that his licence was suspended.”

19 [Subject to suppression order]

20 Mr Pisani submits that the Tribunal should consider the intelligence as a whole. He says that Mr Alameddine’s driving record should also cause the Tribunal concern. He has driven whilst disqualified in breach of Court orders. He is still disqualified from driving and a further two years disqualification was to commence in August 2007.

21 Mr Pisani submitted that it is not in the public interest for Mr Alameddine to be granted the licence. He argues that Parliament’s intention, reflected in the Act, is to ensure that a high standard of the industry and that entry to the industry is restricted to reduce the likelihood of criminal activity. He refers to the decision in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 as indicative of the approach that should be taken. A high standard applies to the grant of a licence. Moral integrity and rectitude of character is an essential requirement of licensees. If a person does not possess these traits it is not in the public interest that they be given the special access that is permitted by the grant of a security licence.

22 Mr Pisani also says that the fact that Mr Alameddine was not spoken to by Police about any particular incident or that he was not charged or convicted of an offence is not a barrier to refusing his application. The approach adopted by police may reflect the fact that victims are afraid to give evidence against a person, or that they withdraw their cooperation following threats against them. He referred to the views expressed by Rice JM in Bazouni & Ors -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 and the authorities cited in that decision at paragraph [21] as making it clear that it is the person’s conduct, not the fact of a conviction, which is to be considered. He submits that in light of the evidence presented, the Tribunal should err on the side of caution and affirm the determination to refuse the application.

23 Mr Pisani refers to views expressed by the Tribunal’s President in Haining v Commissioner of Police [1999] NSWADT 6 at paragraph 47

47. In ABT v Bond Mason CJ dealt at some length with the wide array of factors that might be taken into account in deciding whether a person (in that case a company) was a “fit and proper” person to hold a licence. His Honour referred to the breadth that should be attached to the content of the concept having regard to the social importance of the industry regulated, in that instance commercial broadcasting. A similarly wide approach should, the Tribunal considers, be adopted in relation to the security industry. This industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.

24 Regarding the term, 'public interest', Mr Pisani relies on the reasoning provided in regard to the internal review determination. He submits that when considering an individual's interest in comparison to that of the interest of the public it has been held that the public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith (1991) 1 VR 63.

25 The Commissioner contends that Mr Alameddine are not a fit and proper person to hold a security licence and that the considerations to be given to public safety weigh against Mr Alameddine’s need to hold a security licence. Accordingly the decision of the Commissioner’s delegate to refuse to grant Mr Alameddine a security licence should be affirmed.

Findings

26 The Commissioner refused to grant a security licence to Mr Alameddine for two reasons: because he was not satisfied that Mr Alameddine was a fit and proper person to hold the class of licence sought and because he considered that the grant of the licence would be contrary to the public interest.

27 The Tribunal is undertaking a review of the merits of the original decision. The Tribunal stand in the shoes of the Commissioner and has the same powers of the Commissioner in regard to the grant or refusal of the licence and is subject to the same restrictions. The role of the Tribunal is to make the correct and preferable decision having regard to the material before it, including any relevant factual material and any applicable written or unwritten law. It then confirms the original decision, varies it, or sets it aside and substitutes another decision. The Tribunal makes its own decision in place of that of the Commissioner and there is no presumption that the decision of the Commissioner is correct. (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357.)

Public Interest

28 Section 15(3) of the Act provides that an application for a security licence may be refused if the Commissioner considers that it would be contrary to the public interest. Mr Alameddine has a long history of traffic related offences and has been the subject of a number of other charges. There is a significant amount of evidence before me that was presented on a confidential basis. I accept that evidence and I agree with the Commissioner that the Tribunal should err on the side of caution.

29 Taking into account the evidence presented on behalf of the Commissioner, and for the reasons argued by the Commissioner, it is my view that it would not, at this stage, be in the public interest for Mr Alameddine to be granted a security licence.

Fit and proper person

30 Section 15(1)(a) of the Act requires an application for a security licence to be refused if the Commissioner is of the view that the applicant is not a fit and proper person.

31 The question of whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

32 It has been held in this Tribunal (see for example QR v Commissioner of Police, NSW Police [2006] NSWADT 307) that factors which should be considered when determining a person’s fitness and suitability to hold a security licence include:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the applicant;

the applicant's reputation in the community; and

the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

33 As I have determined that it would not be in the public interest for Mr Alameddine to continue to hold a security licence, it is not necessary for me to consider the second ground relied on by the Commissioner, that Mr Alameddine is not a fit and proper person to hold a licence. However, I note that Mr Alameddine’s traffic record suggests an attitude of disregard for orders made by the Court. I accept that a significant period of time has passed since those offences. However, I have no evidence to supports Mr Alameddine’s assertions that he no longer holds such an attitude. Should he choose to re-apply in the future he would need to obtain strong evidence to show that this is the case.

34 I accept that Mr Alameddine has obtained qualifications for entry into the security industry and that he incurred considerable expense in doing so. In other matters before the Tribunal I have commented on the fact that an applicant has been given clearance to undertake training, has incurred significant expense in doing that training and then found that the Commissioner has refused to grant the licence for which the training has been undertaken. Yet again this situation has come to light.

35 Given the efforts that the Commissioner has made to resist Mr Alameddine’s application I am unable to understand why he was given the security clearance that enabled him to undertake training for entry into the security industry. Mr Alameddine’s evidence is that the cost to him was in the order of $3,500. I have no power to order the Commissioner to compensate Mr Alameddine for the expenses he incurred in undertaking his training. However, the Commissioner may form the view that in the circumstances it would be reasonable to do so.

Decision

The decision to refuse Mr Alameddine's application for a security industry licence is affirmed.