Brandusoiu v Commissioner of Police, NSW Police Force (No. 2) (GD)

[2012] NSWADTAP 6

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Brandusoiu v Commissioner of Police, NSW Police Force (No. 2) (GD) [2012] NSWADTAP 6
Hearing dates:	1 December 2011
Decision date:	15 February 2012
Before:	Judge K P O'Connor, President P Molony, Judicial Member P Smith, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	LICENSING - Security Industry, Commercial Agents and Private Inquiry Agents, Firearms - Adverse Findings by Independent Commission Against Corruption - Revocation by Administrator - Affirmed by Tribunal - Appeal - Extended to Merits - Reconsideration of Findings - Appeal dismissed
Legislation Cited:	Commercial Agents and Private Inquiry Agents Act 2004 Firearms Act 1996 Security Industry Act 1997
Cases Cited:	Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47 Building Professionals Board v Cohen (Costs) [2011] NSWADT 134 Graham v Baptist Union of NSW [2006] NSWSC 818 Health Care Complaints Commission v Wingate [2007] NSWCA 326 Re Veron; ex p Law Society of NSW (1966) 84 WN (Pt 1) (NSW)
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 (First and Second Appellants) M Rumore, solicitor (First and Second 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. This decision follows on from the Appeal Panel's decision on the first part of the present appeal: see Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47. The Appeal Panel allowed the appeal so far as a question of law was concerned, and granted leave to extend the appeal to the merits.

1. The first appellant, Mr Brandusoiu, seeks to have set aside the Commissioner's decision to revoke his individual security industry, firearms and commercial and private inquiry agents licences; and the second appellant, Exhibition and Function Security Pty Ltd, seeks the same order in relation to its master licence, revoked on the same grounds because Mr Brandusoiu is a close associate. 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). We will not recount here the detail given in the General Division decision as to the licensing history and the scope of the authorities conferred by the licences.

1. While the appellant had some previous adverse security industry licensing history, the decisions now in issue derive essentially from the report of an inquiry conducted by the Independent Commission Against Corruption (ICAC) on Corruption in the Provision and Certification of Security Industry Training released December 2009. The ICAC made adverse findings against the appellant, and recommended that he be prosecuted for serious offences. The ICAC found that he had been involved in corrupt dealings with the principal of a training organisation (Mr Moosani of the Roger Training Academy) to enable a person he had referred to the organisation (Mr Bosynak) to obtain qualifications required for a security industry licence by falsifying examination records.

1. The Roger Training Academy ('Roger') was a registered training organisation authorised to provide courses at certificate levels 1 to 3. Its students were people seeking to qualify to enter the industry, or licensees who needed to undertake further training to meet new requirements to maintain their present level of licence.

1. Based on complaints and other information, the ICAC suspected that many persons certified by Roger had not been properly assessed. In particular, it was suspected that the teaching staff of Roger and of some other security training organisations engaged in the practice of providing students with the text of the answers to questions relating to key competencies, and allowing them to copy the answers into their work books. The work books are the primary record of satisfactory completion, and are open to be audited by inspectors from the Security Industry Registry (SIR) or the authority responsible for registering training organisations, the Vocational Educational Training Accreditation Board.

1. The report of the ICAC refers to its use of covert investigation techniques, including an undercover agent and interception of telephone conversations.

1. In the course of its covert telephone surveillance of Mr Moosani, the ICAC recorded conversations with the appellant. Mr Bosynak had asked the appellant for work as a security guard. The appellant referred him to Roger to do the required courses so that he could get a licence. Mr Bosynak had very limited English language ability. Mr Bosynak expressed concern to the appellant over the requirement that he complete a work book.

1. In the ICAC's opinion, the converations showed that the appellant was aware that Mr Moosani allowed people to copy answers into the work book, and was complicit in an arrangement for Mr Bosynak to be processed and certified in a way that involved no real testing. The appellant denied to the ICAC that he had any knowledge of the wrongfulness of the practices in which Roger had engaged. In his submission the corrupt arrangement was confined to Mr Bosynak and Mr Moosani. The ICAC did not accept the denial.

1. The ICAC made the following recommendations and findings:

2. Mr Moosani issued certificates of competency in the pre-licensing course which contained false representations that various persons including Nick Bosynak had demonstrated the prescribed competencies for that qualification knowing that the recipients of the certificates would use them in applying to the Security Industry Registry for a provisional security licence.

3. 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.

4. Mr Bosynak obtained his provisional security licence from the Security Industry Registry in circumstances where he knowingly relied upon the false certificate of competency.

1. It made the following findings in relation to the appellant:

The Commission finds that Tibi Brandusoiu, by arranging for Mr Bosynak to obtain a false certificate of competency from Mr Moosani for the purpose of Mr Bosynak obtaining a provisional security licence from the SIR, engaged in corrupt conduct on the basis that his conduct adversely affected, either directly or indirectly, the exercise of official functions by officers from the SIR (that is, those functions connected with the determination of Mr Bosynak's application for a security licence) and could involve fraud on his part and therefore comes within section 8(2)(e) of the ICAC Act.

Such conduct could also, for the purposes of section 9 of the ICAC Act, constitute or involve the following criminal offences:

being an accessory before the fact to the offence of making a false or misleading statement contrary to section 178BB of the Crimes Act;

being an accessory before the fact to the offence of making a false or misleading statement or representation contrary to section 33(2)(a) of the Security Industry Act.

ICAC's Account of the Evidence Justifying Its Findings and Recommendations

1. The ICAC at pp 20 ff of its report outlined the evidence against the appellant as follows:

Mr Brandusoiu denied he introduced Mr Bosynak to Mr Moosani for any improper purpose. However, the Commission is satisfied that Mr Brandusoiu did intend to facilitate the obtaining of a security licence by Mr Bosynak by improper means.

On 27 January 2009, Mr Brandusoiu telephoned Mr Moosani and told him he had a friend (Mr Bosynak) who wanted to do a course but whose English was not very good. Mr Brandusoiu admitted making the telephone call to Mr Moosani but said he had done so after Mr Bosynak had already contacted Mr Moosani.

During a telephone call on 9 February 2009, Mr Moosani complained to Mr Brandusoiu that Mr Bosynak did not want to answer the questions in his own handwriting. Mr Moosani explained to Mr Brandusoiu that he was concerned that if Mr Bosynak did not complete the workbook it may increase the risk of detection:

Moosani: Ah I told him to, I told him to, I tell him, I told him to um write down the answer like the only I sent copy to him. And he doesn't want to write the answer with his own handwriting. What to do now?

Brandusoiu: Huh? But he has to do a lot of work, mate, you know?

Moosani: Yes but he has to write the answer. If something happens, if we get audited. But like his handwriting is still there you know like he was in the classroom and he was having the answers.

Brandusoiu: Oh mate, but you give him a little homework, mate, you know?

Moosani: Yeah I know, I already told him I give him the answers, you know, like to go home and write down the answers.

In a telephone conversation later that day between Mr Moosani, Mr Brandusoiu and Mr Bosynak, Mr Brandusoiu explained to Mr Bosynak that he was required to complete the book:

Brandusoiu: Hey I spoke with him. Everything is fixed. Just those ah, papers what we'll give you is with the answers everything. You just have to write down with your handwriting, you know.

Bosynak: Handwriting?

Brandusoiu: Something to, to be your handwriting there, you know.

Bosynak: Handwriting what? I, I don't know what handwriting?

Brandusoiu: Whatever he's giving you now -

Bosynak: Yeah.

Brandusoiu: - he will give you the answers too so you have just to copy the answers. Alright for those books, that's it. After all that has been fixed other things. Alright?

Bosynak: Alright, alright but -

Brandusoiu: But whatever he gives you I told him he, he give you the answers too. You just copy the answers. Alright?

Bosynak: Okay, the answers.

Brandusoiu: Yeah, you have to copy the answers yeah, alright?

Bosynak: I, I been talk with a few, few of my friends which want security. It's, they tell me it's very complicated papers.

Brandusoiu: Yeah, I, I told but he gave you the answers so you just copy the answers.

Bosynak: Copy the answers.

Brandusoiu: Yeah.

In the same conversation Mr Brandusoiu then directed Mr Moosani, who was with Mr Bosynak at the time, to provide Mr Bosynak with the answers to the questions, a First Aid certificate and a Responsible Service of Alcohol (RSA) certificate. The latter certificate is required for security officers intending to work on licensed premises. However, this type of certificate is not required in order to apply for a security licence.

In his evidence to the Commission Mr Brandusoiu denied he knew that Mr Bosynak had not undertaken any coursework prior to obtaining his certificate in respect of the pre-licensing course because he said he did not see Mr Bosynak after the conversation on 9 February 2009. However, when asked why he told Mr Bosynak in the telephone conversation to copy the answers into the workbook he could offer no sensible explanation other than to say it was because Mr Moosani told him he would provide Mr Bosynak with "all the paperwork".

The Commission is satisfied that Mr Brandusoiu knew that the provision of the answers to Mr Bosynak was the type of conduct that needed to be concealed. During their first telephone conversation on 9 February 2009 Mr Moosani told Mr Brandusoiu he was concerned that Mr Bosynak's initial refusal to complete the workbook created a risk that any subsequent audit could lead to detection. During the later telephone conversation on that day Mr Brandusoiu responded to Mr Moosani's concerns by urging Mr Bosynak to complete the workbook in his own handwriting.

Based on the intercepted telephone calls, the Commission is satisfied that Mr Brandusoiu arranged for Mr Bosynak to obtain a certificate from Mr Moosani 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 knew Mr Bosynak had not undertaken any coursework was deliberately false.

Mr Moosani said that on another occasion in January 2009 he arranged with Mr Merchant to provide the answers to the questions contained in the Certificate I workbook to another candidate. Mr Merchant said in furtherance of this arrangement he provided a compact disc containing the answers to the candidate.

1. Part of the next section of the report is relevant to this case. The report continued:

Inadequate English language skills

In the telephone conversation between Mr Brandusoiu and Mr Moosani on 27 January 2009, Mr Brandusoiu explained to Mr Moosani that Mr Bosynak's English skills were not very good. Mr Bosynak gave evidence before the Commission with the assistance of an interpreter. This highlighted that English language difficulties were no bar to obtaining a certificate of competency from Roger notwithstanding the requirement imposed by the SIR that candidates undertaking approved security training courses were required to demonstrate English language competency. Paul Lewis, a trainer at Roger in 2006, said he complained to Mr Moosani that students he taught in the pre-licensing courses had insufficient English skills to pass the literacy test. Mr Lewis said Mr Moosani directed him to continue teaching those students regardless of their lack of English skills. Mr Moosani admitted he gave Mr Lewis that direction and said he required students with poor English skills to pay him extra money if they wished to gain certification.

Submissions

1. Both parties relied on the written submissions made before the Tribunal at first instance, and the further oral and written submissions made to the Appeal Panel.

1. The appellant noted that the leading cases discussed in the previous Appeal Panel decision had all involved findings made by courts of law bound by the rules of evidence. In this instance the findings were made by an administrative body, and the evidence has yet to be tested in a court of law. We do not regard the distinction as significant in this instance. The ICAC has wide investigative powers, but its hearings are conducted in a quasi-judicial way. The bench is headed by a lawyer of standing and experience, in this instance a retired senior judge.

1. The appellant has pressed two points: one, his consistent denials of any complicity in Mr Moosani's practices; and two, what he contends is, the forensic weakness of the adverse findings made by the ICAC. He has also relied on a large number of references from clients expressing satisfaction with the work of his then firm, many from the period 2000-2003. The clients included a number of major Sydney hotels. There is a set of further references from the 2009-2010 period including ones that referred to the adverse findings and expressed surprise. They include recent testimonials from a church and a school with which he has been associated.

1. The appellant rejects the opinion expressed in the Commissioner's submissions that the contents of the recorded conversations can properly be interpreted as demonstrating that the appellant was aware of 'wide ranging corruption' at Roger. The submissions point out, we think properly, that the only evidence before the ICAC referred to the single set of events involving the appellant, Mr Moosani and Mr Bosynak. We accept that there is no basis in the ICAC's material to which our attention has been drawn for attributing to the appellant any knowledge of 'wide ranging corruption'.

1. In support of his case that he was unaware of any improper practice by Roger, the appellant refers to the statement given to the ICAC by Mr Bosynak (15 July 2009), at transcript p 481 of the ICAC's hearing. He notes that it only made two references to the appellant, each confined to the fact that the appellant introduced Mr Bosynak to Mr Moosani, but nothing further.

1. The appellant was also critical of the procedure adopted by the ICAC at hearing, and asserted that only one of the three calls to which the appellant was a party was played to him by the ICAC when he gave evidence (the call of 10.38 am on 9 February 2009).

1. The appellant rejected the Commissioner's submissions insofar as they might be seen as seeking to implicate the appellant in extraneous suspicious conduct involving Mr Moosani and Mr Bosynak. Mr Moosani accepted as payment from Mr Bosynak an opal said to be worth $3800-$4000, three times the usual cost of a training course, $1600. We accept that in the material to which our attention has been drawn there is nothing to indicate that the appellant was aware of this arrangement.

1. As to the contents of the telephone conversations relied upon by the ICAC, the submissions note that they do not include any express statement by the appellant to the effect that he knew the certification practice was wrong and fraudulent. It is submitted that at the highest his statements only provide a basis for mere suspicion or speculation.

1. The submission notes the absence of any questioning of the appellant from counsel assisting the commission or from the bench as to what awareness he had of the acceptability of certification practices of the kind in issue. The submission is that the ICAC failed to establish the foundation for its adverse findings.

1. The submissions also compare the way the ICAC dealt with the question of the culpability of other associates of Mr Moosani and of other security industry training organisations and their heads whose conduct it investigated. The submissions note that the ICAC gave less damning assessments of evidence of the conduct of personnel in other training organisations that had engaged in improper certification practices.

1. Criminal charges have not been laid as at the date of the Appeal Panel's latest hearing (1 December 2011), so 2 years has now passed.

Consideration

1. As the transcripts of the intercepted conversations reveal, the appellant made repeated references to it being sufficient for Mr Bosynak to copy the answers given to him into his work book. Were the appellant a person with no or little familiarity with the requirements of the security industry licensing system, perhaps a case could be made out for the view that the material is insufficient to establish that he knew that this was unacceptable practice. But the appellant is a person who has worked for around the last 20 years in the industry, and has run major businesses. Further, he himself held licence certifications across a broad range of classes (see paragraph 2 of the previous decision), and therefore would himself have undertaken many courses of instruction and training to achieve those certifications. Moreover, while it may be, as asserted, that he was not given an adequate opportunity to respond to the contents of all of the phone conversations upon which the ICAC relied, he did have put to him key passages from one of the calls of 9 February 2009, and could not offer the Commissioner any satisfactory explanation.

1. In addition there is the evidence of Mr Bosynak's inability in English being such that he was likely to face considerable difficulty meeting the requirements of a properly run course of instruction.

1. In our view, this material supports an inference, and a prima facie case, that he was aware, at the time he recommended Mr Bosynak to enrol with Roger, that he would be provided with the answers needed to meet the work book requirement, and that he was aware that the practice was improper and fraudulent.

1. He has not availed himself of the opportunity to give evidence in these proceedings to counter this inference. He has relied entirely on the submissions put on his behalf by counsel. We accept that he may see himself as having difficulty in co-operating in this way with our process given the possibility of criminal charges; and that he is entitled to exercise the privilege against self-incrimination.

1. However, the administration of occupational licences sits in a different part of the legal system to a criminal trial. Persons who hold licences have, as we see it, a duty of candour in relation to matters of concern to the administrator (and, on review, the review tribunal exercising the powers of the administrator).

1. The appellant's disinclination to give evidence to this tribunal must be counted against him. The questions that his counsel says ICAC should have put to him about his state of awareness of the wrongfulness of Roger's certification practices are also issues for us in reaching the correct and preferable decision in all the circumstances. The principles stated in Re Veron; ex p Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 136 at 141-142 (CA, Herron CJ, Sugerman, McLelland JJA) apply generally to the discipline of professions and regulated occupations; see more recently, Health Care Complaints Commission v Wingate [2007] NSWCA 326 at [43] ff per Basten JA; and Graham v Baptist Union of NSW [2006] NSWSC 818 at [52]-[53] per Young CJ in Eq; Building Professionals Board v Cohen (Costs) [2011] NSWADT 134 at [10]-[12].

1. We are left with a strong prima facie case, and an inference that has not been rebutted. There is a grave doubt as to the appellant's integrity and honesty. Without more, we do not accept that a person of his experience in the industry would have been unaware that Roger's practice was wrong and fraudulent.

1. This conduct is so gross that he can not be regarded for the time being as a person of integrity fit to hold a security industry licence, and nor can the firm of which he is a close associate be regarded as fit to hold a master security industry licence. For the same reasons, he can no longer be trusted to maintain a commercial and private agent's licence.

1. The position in relation to the firearms licence is, perhaps, not as clear cut. This appears, on its face, to be a private, recreational licence rather than a business licence. But these cases have been conducted by both parties on common material and common arguments. We therefore reach the same conclusion in relation to the firearms licence.

1. We will enter a final order of appeal dismissed. The Tribunal's decision to affirm the decisions of the Commissioner stands.

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Decision last updated: 17 February 2012