Commissioner Of Police and Gastarov
[2007] WASAT 224
•31 AUGUST 2007
COMMISSIONER OF POLICE and GASTAROV [2007] WASAT 224
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 224 | |
| SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) | |||
| Case No: | VR:11/2007 | 9 MARCH 2007 5 APRIL 2007 25 MAY 2007 | |
| Coram: | MR P McNAB (MEMBER) MR M ANDERSON (SENIOR SESSIONAL MEMBER) MR R CAMPBELL (SESSIONAL MEMBER) | 31/08/07 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application upheld and licences revoked | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER OF POLICE JASON PAUL GASTAROV |
Catchwords: | Professions and trades Vocational regulation Crowd control agent's licences Application by Commissioner of Police to revoke licences held by respondent Respondent alleged to be neither a person of good character or a fit and proper person to hold licences Drugs Respondent failed random drug test Presence of amphetamines in urine Respondent denied that he used drugs or had any knowledge or reason to believe that drugs were in his system Respondent produced evidence of drink spiking Evidence held to be insufficient or unreliable Evidence did not adequately or satisfactorily explain presence of drugs Security agents licensing regime premised on reduction and removal of illicit drug use in security industry Need to maintain public confidence in licensing regime Application upheld Licences revoked |
Legislation: | Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67(1)(a), s 67(2), s 80 Security and Related Activities (Control) Regulations 1997 (WA), reg 52 |
Case References: | A v Commissioner of Police [2005] WASAT 121 |
Orders | That pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996 (WA) the respondent's crowd control agent's licences are revoked |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA) CITATION : COMMISSIONER OF POLICE and GASTAROV [2007] WASAT 224 MEMBER : MR P McNAB (MEMBER)
- MR M ANDERSON (SENIOR SESSIONAL MEMBER)
MR R CAMPBELL (SESSIONAL MEMBER)
- 5 APRIL 2007
25 MAY 2007
- Applicant
AND
JASON PAUL GASTAROV
Respondent
Catchwords:
Professions and trades - Vocational regulation - Crowd control agent's licences - Application by Commissioner of Police to revoke licences held by respondent - Respondent alleged to be neither a person of good character or a fit and proper person to hold licences - Drugs - Respondent failed random drug test - Presence of amphetamines in urine - Respondent denied that he used drugs or had any
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knowledge or reason to believe that drugs were in his system - Respondent produced evidence of drink spiking - Evidence held to be insufficient or unreliable - Evidence did not adequately or satisfactorily explain presence of drugs - Security agents licensing regime premised on reduction and removal of illicit drug use in security industry - Need to maintain public confidence in licensing regime - Application upheld - Licences revoked
Legislation:
Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67(1)(a), s 67(2), s 80
Security and Related Activities (Control) Regulations 1997 (WA), reg 52
Result:
Application upheld and licences revoked
Category: B
Representation:
Counsel:
Applicant : Sgt S Bagley
Respondent : Selfrepresented
Solicitors:
Applicant : Commissioner of Police
Respondent : Self-represented
Case(s) referred to in decision(s):
A v Commissioner of Police [2005] WASAT 121
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Summary of Tribunal's decision
1 Mr Gastarov held two crowd controller agent's licences under the Security and Related Activities (Control) Act 1996 (WA).
2 The Commissioner of Police alleged that the respondent, Mr Gastarov, was not of good character because he failed a random drug test conducted under the Security and Related Activities (Control) Act 1996. The Commissioner of Police asked the Tribunal to revoke those licences.
3 Mr Gastarov did not challenge the veracity of the test which disclosed amphetamines in his system above trace level. But he strongly denied that he was a drug user, offering evidence of his good character and of the possible spiking of his drink at a party the night before the test. The Tribunal held that such evidence was either insufficiently linked to that incident or was otherwise unreliable. Thus, no adequate or suitable explanation had been offered for the presence of drugs in Mr Gastarov's system. The Tribunal was thus left with a positive drug test, a serious regulatory event in the security industry.
4 In the result, the Tribunal upheld the Commissioner's case, principally in order to protect and maintain public confidence in a detailed licensing system premised in part upon eradicating illicit drug use in the crowd control security business.
5 Mr Gastarov's licences were revoked.
Introduction
6 This is an application seeking revocation of two crowd control agent's licences issued to Mr Jason Paul Gastarov. The Commissioner for Police (Commissioner) seeks a determination of this Tribunal to this effect pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996 (Security Act).
7 The ground for revocation nominated by the Commissioner was that the respondent, Mr Gastarov, was no longer "of good character and is [not] a fit and proper person to hold a licence" under the Security Act: see s 52(c) of the Security Act. This was because the respondent had failed a random drug test conducted pursuant to s 80 of the Security Act. It was alleged that the respondent had amphetamines in his urine sample and thus, in his body.
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8 Mr Gastarov opposed the application and maintained that he continues to satisfy the requirements of the Security Act in relation to his fitness and character, or at least sufficient to warrant him retaining his crowd control agent's licences. In short, Mr Gastarov contends that he is a person of good character, that he is not a drug taker and that he had no knowledge of how such drugs came to be in his body. Neither did he have any cause to suspect that such drugs were in his body.
9 After considering all of the evidence, including evidence suggesting that Mr Gastarov's drink might have been spiked, the Tribunal has nevertheless upheld the Commissioner's case and has revoked Mr Gastarov's licences. This is for the reasons that follow.
Statutory framework
10 In summary, s 67(2) of the Security Act allows this Tribunal to revoke a person's licence if it is satisfied that a "proper cause for disciplinary action" exists. Section 67(1)(a) of the Security Act sets out the grounds for disciplinary action. Section 52(c) of the Security Act authorises the Tribunal to revoke a person's licence if it is satisfied that the person no longer meets the requirements of being of good character and a fit and proper person.
11 Generally speaking, a failure to pass a lawful random drug test is, in our view, prima facie evidence of substantially diminished character for the purposes of this regulatory regime.
Commissioner's case
12 The Commissioner's case may be summarised as follows.
13 Mr Gastarov is 31 years old. He is the holder of two crowd control agent's licences, as follows:
1) in respect of Gridlock Protection, issued on 13 April 2005; and
2) in respect of United Force Security, issued on 23 August 2005.
14 On his Gridlock Protection application for licence form, dated 7 April 2005, Mr Gastarov declared a criminal history by answering "Yes" at question 4.2 and indicated an offence of "Break & Enter" dating back some 15 years. The Commissioner considered that this previous criminal history did not relevantly affect Mr Gastarov's application and was not an
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- impediment to him being issued a crowd control agent's licence. A similar situation exists in respect of the respondent's United Force Security licence.
15 On 13 April 2005, Mr Gastarov was issued with a crowd control agent's licence (CA 10030) in respect of Gridlock Protection. This licence had an expiry date of 5 December 2006. On 23 August 2005, Mr Gastarov was issued a crowd control agent's licence (CA 23856) under United Force Security. This licence had an expiry date of 23August 2008.
16 Mr Gastarov renewed his crowd control agent's licence (CA 10030) on 30 November 2006. This date will become important for other reasons, as appears below.
17 On 30 November 2006, apparently while visiting the offices of those administering the licensing regime on other business, Mr Gastarov was directed by an officer, in accordance with s 80 of the Security Act, to provide, as a licensee, a random urine test for the purposes of determining the presence or level of any prescribed drug in either his blood or urine.
18 On 22 December 2006, the Chemistry Centre (WA) provided a "Certificate of [an] Approved Analyst" advising the Commissioner that "presumptive screening" of the sample CASU1133 taken in the name of "Jason Paul GESTAROV [sic]" had returned a positive result to amphetamines (900ng/ml; the cut off being 300ng/ml). The sample was further analysed by gas chromatography and the results produced readings for amphetamine at 0.27mg/L, and for methylamphetamine at 0.81 mg/L.
19 No benzodiazepines, cannabinoids or opiates were detected.
20 Mr Robert Hansson, Principal Chemist at the Centre, told the Tribunal that these amphetamine readings were not considered to be at trace level.
21 The Commissioner considered that Mr Gastarov had returned a non-complying sample as is defined in reg 52 of the Security and Related Activities (Control) Regulations 1997 (WA) and therefore proper cause existed, in the framework of the Security Act, for disciplinary action to revoke his licences.
The respondent's case
22 Mr Gastarov's case was as follows.
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23 Mr Gastarov was shocked by the test result. He was unable to explain how the drugs came to be in his system, but he denied knowingly using or consuming any illicit substance. He stated that he had no reason to suspect that any drugs had entered into his system. Mr Gastarov indicated that he did not keep his "B sample" (his "copy" for independent testing, if he so wished), and conceded the Commissioner's evidence that the random drugs test had detected relevant amounts of amphetamines in his body, namely the drug popularly known as "Ice".
24 Mr Gastarov stated that he had been attending a drinks going-away party for a co-worker at the Vibe nightclub in Rockingham on the Wednesday evening, 29 November 2006, being the day immediately prior to his drug test. He suggested that it was possible that his drink had been spiked at that party. This function had been held whilst the venue was open to the public.
25 Mr Gastarov stated there was anecdotal evidence that there had been drink spiking in nightclubs in the Rockingham area. He claimed that he could have been a victim of such incidents. In fairness to the respondent, the hearing was adjourned so that Mr Gastarov could obtain firm evidence to substantiate his allegations and to show how this provided a defence to the Commissioner's case.
26 The evidence subsequently supplied by Mr Gastarov was correspondence to and from a Ms Shelley Batten regarding drink spiking with respect to allegations in January 2007. There was also provided to the Tribunal some four "Incident Register" reports which referred to intoxicated patrons who claimed that their drinks may have been spiked. The date on one of the reports was claimed to be 22 October 2007.
27 The detail in these reports and the further material in themselves, provide no additional support for the possibility that Mr Gastarov's particular drink may have been spiked.
28 Subsequently, on 5 April 2007, Mr Gastarov presented to the Tribunal Mr Ricky Gorfine, an employee of the Vibe Nightclub, who sought to corroborate the claim of drink spiking. Mr Gorfine suggested that he had taken drugs to the Vibe nightclub for personal consumption on the night in question. His evidence was that he poured the "Rock" (that is, "Ice") into his own drink and had then left to go to the toilet, without drinking the full drink. When he returned his drink had disappeared. He asserted that he was in close proximity to the location where Mr Gastarov
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- was standing. He suggested that Mr Gastarov might have accidentally taken his drink.
29 Mr Gorfine has given a statement to the Police.
30 However, the times and places suggested by Mr Gorfine to establish that he was in the same nightclub at the same time as Mr Gastarov could not be confirmed by any additional information provided by Mr Gorfine. Indeed, evidence called by Sgt Bagley considerably weakened Mr Gorfine's evidence, by disrupting Mr Gorfine's recollection of the sequence of events in the relevant week.
31 Mr Gastarov subsequently conceded to the Tribunal that, in the end, he could place little confidence in or reliance upon the evidence provided by Mr Gorfine.
32 Mr Gastarov submitted that the issue facing the Tribunal was that his drink had been spiked and that this was how his urine sample came to return a positive result for amphetamines. However, Mr Gastarov largely accepted that there was no reliable independent evidence to support his contentions.
33 The respondent produced various written references (including one from a serving police officer) all of which suggest general good character on Mr Gastarov's part.
Discussion of the respondent's main evidence
34 Mr Gastarov has accepted the results of the drug test. Mr Gastarov has protested that he was not a drug taker but he could not explain how the drugs had come to be in his system. On the face of it, his written references suggest that he is a person of good character. He sought to provide evidence of drink-spiking to support his contention that he had not knowingly taken any drugs.
35 In the end, however, it was not possible to place any confidence in any of this particular evidence in rebuttal. The material is mainly speculative and insufficiently reliable hearsay evidence. None of it is sufficiently linked to the time and location of the alleged drink-spiking event.
36 Mr Gorfine was the only material witness called by Mr Gastarov. To his credit, before calling Mr Gorfine, the respondent expressed some reluctance in taking that course. As it turned out, this apprehension was entirely justified. Mr Gorfine confirmed that he was a regular user of
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- methylamphetamine ("Ice"). The times and events surrounding the evening of the party, and immediately after the party at the Vibe night club, as recounted by Mr Gorfine, were not supported by independent evidence obtained by the Police from interviews with people and businesses to whom Mr Gorfine had referred as establishing a particular sequence of events.
37 Importantly, in an altogether proper concession, Mr Gastarov stated that he was not particularly relying on the evidence of Mr Gorfine. He stated that Mr Gorfine's testimony had appeared to have relevance to his case and that this was the reason why he had put it forward.
Consideration of the issues in the case
38 In reaching its decision, the Tribunal may take into account various matters including the objectives of the Security Act, the public interest (particularly public confidence in the licensing system), the nature of the work to be performed by the person, their criminal record (if relevant), the circumstances concerning any offences or other relevant incidents (such as a failed drug test) and any other information as to character. This list is not intended to be exhaustive.
39 A crowd controller is, amongst other things, required to control their own behaviour, control the behaviour of patrons, remove persons from premises and screen the entry of persons onto premises. They will usually be exposed to volatile situations involving patrons who may be intoxicated or otherwise affected by drugs and who may behave irrationally. It is generally incumbent upon any crowd control agent to set and retain appropriate standards of probity. Speaking hypothetically, where there is an organisational culture or perceived culture of drug use by any security management, there is a significant opportunity for that organisation and others employed by it to be involved, directly or indirectly, in the use of prohibited substances.
40 The second reading speech for the introduction of the Security and Related Activities (Control) Bill made it clear that one of the prime purposes of the then proposed Security Act was to stamp out the use of amphetamines and anabolic steroids in the crowd control industry.
41 The Security Act does not define what is meant by "fit and proper" and of "good character". In A v Commissioner of Police [2005] WASAT 121 the Tribunal referred to several authorities dealing with the fit and proper test. At [61], the Tribunal concluded as follows:
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- "Members of the public, in particular those that visit facilities where licensees are on duty, expect licensees to comply with the high standards set by the [Security Act] and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties. ... [W]e have a duty to protect the interests of the public and maintain public confidence in the security industry."
42 The Tribunal must balance the interests of the public with those of the licensee. It must weigh all relevant factors for and against a respondent licensee. Here, there is a serious relevant fact proved, namely the presence of a prohibited drug in the respondent's body (at significant levels), indicating or suggesting on its face at least wilful or knowing consumption of the drug by the person so tested.
43 This is a very serious event. No evidence of any substance or reliability has been produced to satisfactorily explain away or justify this fact or event.
44 The Tribunal has given anxious consideration to resolving this issue, particularly in light of Mr Gastarov's cooperation, demeanour and written good character evidence.
45 However, the evidence of Mr Gorfine is indicative of the very problem in licensed premises that the security industry must face up to. A drug-free environment on the part of those charged with maintaining security and public order is a necessity reinforced by the Security Act. Public confidence in that industry and the licensing system must ultimately prevail and these goals, in our view, would not be furthered by in effect ignoring Mr Gastarov's positive drug test.
46 In the absence of any adequate or satisfactory explanation for that event, the Tribunal must conclude that it is not in the public interest for Mr Gastarov to continue in the security industry for the time being.
Orders
47 The Commissioner's case has been made out. It is appropriate, therefore, that an order be made revoking both of the respondent's crowd control agent's licences effective from the date of these reasons. The Tribunal makes the following order:
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- 1. That pursuant to s 67(2) of the Security and Related Activities (Control) Act 1996 (WA) the respondent's crowd control agent's licences are revoked.
I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR P McNAB, MEMBER
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