Brandusoiu v Commissioner of Police, NSW Police Force (GD)

[2011] NSWADTAP 47

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47

Hearing dates:

22 August 2011

Decision date:

18 October 2011

Jurisdiction:

Appeal Panel - Internal

Before:

Judge K P O'Connor, President
P Molony, Judicial Member
P Smith, Non-judicial Member

Decision:

1. Appeal on question of law allowed.

2. Decision under appeal set aside.

3. Leave to extend to merits granted.

4. Directions hearing to be arranged by Registrar.

Catchwords:

LICENSING - Revocation of Licences - Based on External Finding - Review applicant challenges strength of the evidence giving rise to the finding - Tribunal declines to consider challenge - Held Tribunal must give due regard to finding

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Commercial Agents and Private Inquiry Agents Act 2004
Firearms Act 1996
Security Industry Act 1997

Cases Cited:

A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310
Brandusoiu v Commissioner of Police [1999] NSWADTAP 8
Brandusoiu v Commissioner of Police, NSW Police Force [2009] NSWADT 222
Brandusoiu v Commissioner of Police, NSW Police Force [2011] NSWADT 57
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
General Medical Council v Spackman [1943] AC 627
Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385
Peter Plessas v Commissioner of Police, NSW Police [2004] NSWADT 29
Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141
Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279

Category:

Principal judgment

Parties:

Tiberiu Brandusoiu (First Appellant)
Exhibition and Function Security Pty Limited (Second Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation:

Counsel
P Linegar (Appellants)
M Rumore, Solicitor (Appellants)
C Zoppo, Sparke Helmore Lawyers (Respondent)

File Number(s):

119013

 Decision under appeal 

Jurisdiction:

9108

Citation:

Brandusoiu v Commissioner of Police, NSW Police Force [2011] NSWADT 57

Date of Decision:

2011-03-22 00:00:00

Before:

General Division

File Number(s):

103079, 103080, 103081, 103157

REASONS FOR DECISION

1. APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT), P MOLONY (JUDICIAL MEMBER), P SMITH (NON-JUDICIAL MEMBER)): This is an appeal from a decision of the Tribunal affirming decisions of the Commissioner of Police revoking licences issued to the first appellant, Mr Brandusoiu and a company of which he is a close associate, the second appellant, Exhibition and Function Security Pty Ltd. See Brandusoiu v Commissioner of Police, NSW Police Force [2011] NSWADT 57. The relevant laws are the Security Industry Act 1997 (SI Act), the Firearms Act 1996 (Firearms Act) and the Commercial Agents and Private Inquiry Agents Act 2004 (CAPI Act).

1. The affected licences in the case of Mr Brandusoiu are:

·   Security Industry Licence. Class 1A (Unarmed guard), 1B (Bodyguard), 1C (Crowd controller), Class 2A (Security consultant), 2B (Security seller), 2C (Locksmith), 2D (Security trainer) and 2F (Electronic equipment specialist). First issued 17 November 2005 and converted to present classes 19 October 2007, due to expire 12 January 2011. Revoked 19 January 2010.

·   Firearms Licence. Category AB (Recreational/Hunting/Vermin Control) Firearms licence. First issued 1997. Most recently re-issued 19 December 2007 for five years. Revoked 19 January 2010.

·   CAPI Operator Licence (Process Serving, Debt Collection, Repossession of Goods, Surveillance of Persons & Investigation of Persons). Issued 3 January 2007 for five years. Cancelled 12 April 2010.

1. The company held a Master Licence under the SI Act authorising it to employ between 11 and 50 persons. The nominated person for the purpose of this licence (his wife, Angela Brandusoiu) in turn nominated Mr Brandusoiu as a 'close associate', and he is so described on the face of the licence. The conduct of a 'close associate' may be attributed to a company licensee (SI Act, s 15(5), s 16(5)). The Master Licence was issued on 7 November 2009 for five years, and revoked on 19 January 2010.

1. The Commissioner issued separate sets of reasons for each of the decisions, and they include references to the prior licensing history of Mr Brandusoiu. Mr Brandusoiu has had a long involvement in the security industry, and has been the subject of adverse licensing decisions in the past. Some of this history is set out in the Tribunal's reasons in earlier cases, and is reiterated in the Commissioner's reasons for decision. See Brandusoiu v Commissioner of Police, NSW Police Force [2009] NSWADT 222; Brandusoiu v Commissioner of Police [1999] NSWADTAP 8. He was mandatorily disqualified from holding a licence in the period 1998-2005. The material refers to Mr Brandusoiu having business interests in the security industry, and being employed in the industry in the period when he could not hold a personal licence or be involved in a master licence as a nominated person or a close associate.

1. In the case of the firearms licence, the Commissioner's reasons show that he has held an AB licence continuously since October 1997 and for a period also held an H licence (pistol) 1998-2001 (revoked 25 January 2001). The CAPI licence's history commences with the licence under notice, issued 3 January 2007.

1. While there are differences of detail between the reasons, especially in respect of the prior relevant licensing history of Mr Brandusoiu, the trigger for the Commissioner's action against all the licences was a finding of the Independent Commission Against Corruption released in December 2009 in its report on Corruption in the Provision and Certification of Security Industry Training .

1. The ICAC found that Mr Brandusiou had been complicit in one instance in a registered trainer's scheme for falsifying the work book evidencing competence. This is required to be completed by a person sent for training as part of the qualification process for obtaining a security licence. The ICAC findings included the following:

[p 19] Based on the intercepted telephone calls, the Commission is satisfied that Mr Brandusoiu arranged for Mr Bosynak [a person interested in working for him as a security guard] to obtain a certificate from Mr Moosani [principal of a training organisation] in respect of the pre-licensing course on the basis that he would not be required to undertake any training or assessment. The Commission is also satisfied that Mr Brandusoiu's denial that he know Mr Bosynak had not undertaken any coursework was deliberately false.

[p 31] Based on the evidence set out in this report the Commission is satisfied to the requisite degree that the following facts have been established: ...

[p 31] Tibi Brandusoiu knowingly arranged for Mr Bosynak to obtain a certificate of competency from Mr Moosani, which falsely represented that Mr Bosynak had demonstrated prescribed competencies, for the purpose of Mr Bosynak obtaining a provisional security licence.

1. The Commissioner relied on various statutory grounds, one of which was the 'public interest' discretion. That ground was not pressed before the Tribunal.

1. The grounds that continued to be pressed were: that Mr Brandusoiu was 'not a fit and proper person' to hold each of the licences (see SI Act s 15(1)(a), read in conjunction with s 26(1A); Firearms Act s 24(2)(c ); CAPI Act s 17(1) read in conjuction with s 4(1)); and that he had been engaged in corrupt conduct (s 16(3), SI Act). Similarly the company was considered unfit to hold a master licence (SI Act, s 15(1)(a) and s 26(1A), together with s 16(5) and s 15(5)).

1. The Commissioner considered that the findings bore on the honesty and integrity of Mr Brandusiou to such a degree that he could no longer be regarded as fit to hold any of the licences mentioned. There was no dispute, as we understand the case before the Tribunal and as presented on appeal, that the findings were very serious ones and if accepted could properly be regarded as bearing on Mr Brandusoiu's honesty and integrity, and consequently his fitness to hold the various licences - and similarly, the company's licence.

1. Mr Brandusoiu's case throughout has been that the Commissioner and the Tribunal should not accept the ICAC findings.

1. The Commissioner filed with the Tribunal the evidence that was before the ICAC. It included intercepted telephone conversations over a period of two weeks in January 2009 involving the three persons mentioned; and oral evidence given by Mr Brandusoiu. Mr Brandusoiu also placed some recent testimonials as to his fitness before the Tribunal. He did not seek to give any evidence to the Tribunal.

1. Mr Linegar, counsel for the appellants, referred to the effect of loss of the licences on Mr Brandusoiu's livelihood. He reviewed closely the material before the ICAC and submitted that the Tribunal could not reasonably be satisfied that it justified the conclusion reached by the ICAC, especially when regard is had to the observations made in the famous case of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 about the state of satisfaction required in cases involving allegations with grave consequences. He also referred to the fact that no criminal charges had been laid (this remained the position as at the date of the appeal hearing). Mr Zoppo for the Commissioner engaged in a review of the material that supported the ICAC's finding, and referred to other material which was seen as implicating Mr Brandusoiu in misconduct though no formal findings were entered. The respective submissions are summarised in some detail by the Tribunal at paras [12] and [13] of its reasons.

1. In its reasons, the Tribunal declined to consider the challenge to the ICAC finding. It said at [46]:

46 In the present matter, the ICAC has made a finding of corrupt conduct against Mr Brandusoiu. In my view, the Tribunal cannot go behind that finding. The Tribunal cannot question the facts found by the ICAC that were material to its conclusion or make a determination about whether Mr Brandusoiu was in fact guilty of an offence or whether the ICAC finding was warranted.

1. It went on to hold, on the basis of the ICAC finding, that Mr Brandusoiu could not be regarded as a fit and proper person to hold any of the three licences, and that consequently the company could not retain its master licence. The reasons are brief, see [47]-[50].

1. The appeal raises one question of law, and applies for leave to extend the appeal to the merits: see Administrative Decisions Tribunal Act 1997 , ss 112, 113, 114. The appellants' objection is that there is n o rule of law whether by any Act or otherwise which prevents the Tribunal either to scrutinise and/or 'go behind' a Commission finding.

Consideration

1. The 'fitness' provisions in the statutes under notice are typical of those found in professional, occupational and other licensing schemes. Here the Commissioner formed the view that the conduct identified by the ICAC meant that Mr Brandusoiu (and by association the company) could no longer be regarded as fit to hold the various licences. The findings went to his conduct as a security industry licence holder, and could readily be seen as bearing on this right to continue to hold a CAPI licence. They had a less direct connection with the firearms licence, which appears to have been a personal recreational licence.

1. As we have noted, the Tribunal carefully recorded the challenge and reply to the finding of the ICAC at paras [12] and [13] of its reasons.

1. The law is clear that a disciplinary or similar body must hear the case put by a licensee challenging the prior external finding that has led that body to take disciplinary action against the licensee. The Tribunal did that. But it must also give 'due regard' to the material.

1. The leading case is General Medical Council v Spackman [1943] AC 627. In that case the tribunal deregistered a doctor on the basis of a divorce court finding that he had had an adulterous relationship with a woman patient. At the show cause hearing it refused the doctor's application that it 'look behind' the court finding. It refused to allow the doctor to place before it evidence which, he asserted, would show that he had not been involved in any adulterous relationship. The House of Lords overruled the tribunal, and remitted the case to it to reconsider.

1. Australian courts have applied these principles. Two leading illustrations are Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279; and A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310. In both of these cases, the primary tribunal (State Supreme Courts exercising their disciplinary powers over legal practitioners) had struck practitioners off the roll on the ground that they were no longer fit to practise law because of a serious criminal conviction. In Ziems the conviction was for manslaughter and the lawyer was sentenced to be imprisoned with hard labour for a period of two years. In the second case the practitioner was convicted of four counts of aggravated indecent assault on two girls under 16, and to whom he was the stepfather.

1. The High Court overturned the strike off orders. In both cases the Court was of the view that the primary tribunal had not given due regard to material that the appellants had sought to rely on in extenuation of their conviction. Both cases held that the fact of serious conviction, even one leading to imprisonment, is not necessarily determinative of the fitness of a lawyer to remain a lawyer.

1. In Ziems , the Court (by majority) took into account the unfairness in the way the prosecution case was conducted, especially the failure to produce evidence going to the mental state of the appellant at the time of the fatal car accident that had led to his prosecution. In A Solicitor the High Court took account of comments by the sentencing judge to the effect that the sexual misconduct was unlikely to be repeated having regard to the state of mental health of the appellant at the time, and to material in relation to the appellant's good conduct in the period since the conviction and the completion of his sentence. In both cases the High Court emphasised that the conduct of which the lawyer had been convicted was unrelated to the work of a lawyer.

1. While, as noted by the Tribunal at the end of para [46], it is not open to the Tribunal to make a determination in substitution for the ICAC finding, the authorities to which we have referred hold that if called upon to do so, the Tribunal is to satisfy itself as to the strength for licensing purposes that should be accorded to the external finding. The Tribunal (constituted by the same presiding member) overlooked its prior decision in Peter Plessas v Commissioner of Police, NSW Police [2004] NSWADT 29. In our view the member on that occasion did recognise that it could 'go behind' the external finding. The decision refers accurately, as we see it, to a summary of the relevant principles in the then recent decision of the Federal Court (Branson J) in Minister for Immigration & Multicultural Affairs v Ali [2000] FCA 1385 (29 September 2000).

1. In Ali the person the subject of a deportation order had a significant criminal record upon which the Minister had relied in making the order. The Minister refused to 'look behind' the convictions and consider evidence the person wished to tender suggesting that he had been wrongly convicted in relation to two of the most serious matters. On the other hand, the review tribunal considered the evidence and concluded that had this evidence been before the court the subject may not have been convicted. The Minister's main appeal ground was that the tribunal erred in 'looking behind' the conviction.

1. Branson J summarised the relevant principles as follows, giving particular attention in her observations to the provisions in the migration legislation that formed the setting of the case before her:

41 First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ...

42 Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence ... [ a ppeal Panel Comment: This case is not one of that type. ]

43 Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based ... , policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences ...

(b) limits inconsistency between decisions of the criminal courts and those of tribunals ... .

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted ... . This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

44 Fourthly, although a decision maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted ... .

45 Fifthly, the above limitations on the matters to which a decision maker under s 200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

1. In Ali the Minister's main point of appeal failed. (However the Court found that tribunal had gone too far, and erred, in concluding that as he may have been 'wrongly convicted' it should therefore give no weight to the fact of the conviction. Consequently the decision was set aside, and remitted for reconsideration.)

1. The Tribunal alluded to a number of the points made by Branson J in its reasons at [45]-[50]. It correctly stated at [47] that the ICAC finding is a 'relevant consideration' in the exercise of the Tribunal's discretion. The Tribunal's comments at [48]-[50] about the heavy burden the review applicant has to demonstrate that he is a fit and proper person in spite of the finding, is similar to point 4 of Branson J's observations.

1. The Tribunal's statement at [46] that 'It cannot go behind that finding' can perhaps be read in two ways, i.e. that it cannot disturb the finding or that it cannot entertain any challenge to the basis of the finding. When the remainder of the paragraph is read, together with what follows at [47]-[50], it is clear, we think, that the Tribunal failed to give 'due regard' to submissions challenging the basis of the finding. This case bears some similarity to Ziems , where what was essentially a forensic attack on the way the prosecution case was conducted and it bore fruit. Here, the Tribunal properly recorded the challenge in some detail at [12] and [13] but it did not enter on any inquiry. The appellants were as a result denied procedural fairness.

1. The Tribunal can question the facts found, at least where there is countervailing evidence presented. This situation arose in cases such as Spackman and Ali . It can have regard to exculpatory or extenuating material, both material presented to the external body at the time and material which has since become available. These situations arose in Ziems and A Solicitor .

1. The leading decisions all have as their context external findings of guilt of a criminal offence, and the imposition of convictions. This case involves something less than that, a finding of corrupt conduct, and recommendations for prosecution for offences, by a body that has powers similar to those of a Royal Commission. But the finding is one made after a process of a judicial kind.

1. As compared to the cases to which we have referred and other cases referred to in Branson J's judgment (all involving attempts to bring forward new material or to take advantage of elements of the trial and sentencing process that were favourable to the case now being put by the review applicant) the challenge to the ICAC finding here is a narrower one.

Application for Leave to Extend Appeal to the Merits

1. As we have noted, the error amounts in effect to a denial of procedural fairness. Ordinarily in these circumstances the Appeal Panel would set aside the order. Such an order is not automatic. As stated by the High Court in Stead v State Government Insurance Office [1986] HCA 54; (1986) 161 CLR 141 at [9]-[10]:

9. ...That general principle is, however, subject to an important qualification which Bollen J. plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.

10. For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

1. This is not a case where any new evidence was sought to be relied upon or other new material of an exculpatory character. As already noted, the case contrasts in this regard from the leading cases to which we have referred. The appellants merely ask for the Tribunal to put a different and more favourable complexion on the body of evidence that was before the ICAC. At the heart of the appellants' submissions is a challenge to a credibility finding. It is difficult to see how the Tribunal (or the Appeal Panel on extension to the merits) could substitute another view for that of the ICAC on the matter of credibility.

1. Nonetheless we have decided in the interests of justice that we should set aside the decision and give leave to extend to the merits. A directions hearing will be fixed by the Registrar. We expect that the Tribunal's omission can be addressed by a short hearing or a reconsideration on the papers.

Order

1. Appeal on question of law allowed.

2. Decision under appeal set aside.

3. Leave to extend to merits granted.

4. Directions hearing to be arranged by Registrar.

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Decision last updated: 19 October 2011