COMMISSIONER OF POLICE and STEWART

[2008] WASAT 126

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: SECURITY AND RELATED ACTIVITIES (CONTROL) ACT 1996 (WA)

CITATION:   COMMISSIONER OF POLICE and STEWART [2008] WASAT 126

MEMBER:   MS J HAWKINS (MEMBER)

HEARD:   20 MAY 2008

DELIVERED          :   30 MAY 2008

FILE NO/S:   VR 37 of 2008

BETWEEN:   COMMISSIONER OF POLICE

Applicant

AND

MICHAEL DESMOND STEWART
Respondent

Catchwords:

Vocational regulation - Security officer - Crowd controller - Application to revoke based on pending criminal charges - Whether separate findings for separate licences necessary

Legislation:

Security and Related Activities (Control) Act 1996 (WA), s 52(c), s 67
State Administrative Tribunal Act 2004 (WA), s 9, s 32(2), s 32(4)
State Administrative Tribunal Regulations 2004 (WA), Sch 1

Result:

Security Officer's and Crowd Controller's licences revoked
Application successful

Category:    B

Representation:

Counsel:

Applicant:     Sgt S Bagley (Acting as Agent)

Respondent:     Mr M Devlin

Solicitors:

Applicant:     N/A

Respondent:     Young & Young

Case(s) referred to in decision(s):

A v Commissioner of Police [2005] WASAT 121

Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11

Chan v The Nurses Board of Western Australia [2005] WASAT 115

Collins v Estate Agents Board (1994) 7 VAR 394

Grover v Commissioner of Police [2005] WASC 263

Kioa v West (1985) 159 CLR 550

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (Unreported, SCt of WA (Full Court); Library No 970426A, delivered 26/8/97)

Wignall and Commissioner of Police [2006] WASAT 206

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. The Tribunal granted an application to revoke Mr Stewart's Security Officer's licence and Crowd Controller's licence based on the pending criminal charges faced by Mr Stewart.

Background

1. This is a disciplinary application by the Commissioner of Police (Commissioner) seeking revocation of the Security Officer's licence and Crowd Controller's licence (SO and CC licences) issued to Mr Stewart. The Commissioner seeks a determination pursuant to s 67 of the Security and Related Activities (Control) Act 1996 (WA) (SRA Act) that, due to pending criminal charges being faced by Mr Stewart, he is not of good character or a fit and proper person to hold these licences.

2. Mr Stewart is legally represented and opposes this application.  He maintains that he continues to satisfy the requirements of the SRA Act to warrant retaining his SO and CC licences.

3. At the commencement of the hearing of this matter, Mr Stewart's counsel sought a determination on whether it was appropriate for the same Tribunal member to determine the application in respect to both his SO and CC licences.

4. After hearing submissions from both parties, the Tribunal delivered extemporaneous reasons on that issue and determined that it was appropriate for the same Tribunal member to determine this application in relation to the SO and CC licences of Mr Stewart.

5. Accordingly, the hearing continued and following the hearing, the Tribunal reserved its decision which is now set out in these reasons.

Relevant legislation

1. Section 67(1) of the SRA Act allows the Commissioner to allege to the Tribunal that there is proper cause for disciplinary action as set out in s 67(1a) of the SRA Act.

2. Section 67(1a)(a) of the SRA Act provides that there is proper cause for disciplinary action against a licensee if the licensee no longer meets the requirements of s 52(c) of the SRA Act. Section 52(c) of the SRA Act requires that a person is not to be licensed unless the licensing officer is satisfied that the person is of good character and is a fit and proper person to hold a licence.

3. Section 67(2) of the SRA Act allows the Tribunal to revoke a person's licence if it is satisfied that a proper cause for disciplinary action exists.

4. As a result of an amendment to Sch 1 of the State Administrative Tribunal Act Regulations (2004) (WA), matters under the SRA Act are no longer required to be determined by a panel of three members, and hence the Tribunal consisted of only one member.

5. The Tribunal is not bound to consider only that information that conforms with the rules of evidence, but may inform itself as it sees fit.  As such, the Tribunal can properly regard evidence produced that may be indirect or hearsay information (See Wignall and Commissioner of Police [2006] WASAT 206 (Wignall) at [279] ‑ [282] and s 32(2)(a) and s 32(4) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Evidence and contentions of Commissioner

1. The Commissioner has filed a statement of the licensing officer, Ms Coulthard, which can be summarised as follows:

   •Ms Coulthard is the appointed licensing officer.

   •She states that Mr Stewart was first granted his SO and CC licences in 2006.

   •Ms Coulthard maintains that Mr Stewart now, however, can no longer satisfy the requirements of s 52(c) of the SRA Act as he is facing pending charges for assault occasioning bodily harm and deprivation of liberty.

   •A copy of the statement of material facts in respect to the charges against Mr Stewart was provided.  That statement of material facts stated, in summary, as follows:

   "The complainant in this matter is a 15 year old male.  He is 160cm tall and of slim build.

   The accused is employed at the Lord Forrest Hotel as a duty manager.  He also performs crowd controller duties at the hotel, through his employment with a local security company.  There are a number of co‑offenders in this matter.

   During the early hours of Sunday 30 December 2007, the complainant attended the rear of the Lord Forrest Hotel in Symmons Street, Bunbury with the intention of breaking in to steal alcohol.

   He was apprehended in the rear car park by a co‑offender  … who placed him in a headlock.  Co-offender … conveyed the complainant to the rear entry of the hotel where he was met by the accused and another co‑offender 2 (Co-offender 2 ‑ yet to be charged).  At this time, the accused and the two co‑offenders all assaulted the complainant by punching him to the head one time each.  Co‑offender 2 also punched the complainant in the chest.

   Whilst still holding the complainant in a headlock, co‑offender … conveyed him inside the hotel and into the elevator, followed by the accused and Co‑offender 2.  During this time, [the] accused threatened to throw the complainant off the top of the hotel.

   At the fifth floor of the hotel, the accused, co‑offenders and the complainant exited the elevator.  The complainant was released from a headlock, thrown against a wall and ordered to sit down, which he did.

   The complainant was then ordered into a nearby stairwell, where he was guarded by Co‑offender 2.

   A short time later, a further co-offender attended the area (Co‑offender 3 … charged with deprivation of liberty).

   The accused and co‑offenders … then entered the stairwell, where the complainant was threatened with a handgun.

   The accused then attended the underground carpark of the hotel and got into his vehicle.  A short time later, the co‑offenders … conveyed the complainant to the car park and placed him into the rear seat of the vehicle.  Both co‑offenders got into the vehicle and the accused drove from the car park.

   The complainant was ordered to direct the accused and his co‑offenders to various addresses in the Bunbury area to locate other persons involved in a previous burglary at the hotel, to which the complainant had earlier admitted committing.

   During this period, the complainant was threatened with a handgun by [the] co‑offender …who placed the muzzle of the firearm into the complainant's mouth and told him not to lie.  The complainant was threatened and assaulted in the car by co‑offender … .

   The complainant was then driven back to the lower car park of the Lord Forrest Hotel, and taken into a maintenance room.

   The accused, co‑offenders … and two other persons (yet to be interviewed) were present in the room, when the complainant was ordered to sit at a table.

   The accused then took hold of the complainant's left arm and forced him to place his left hand onto the table at which time co‑offender … removed a hammer from a nearby board.  At this time the complainant was crying and frightened for his safety.

   Whilst the accused held the complainant's hand down, co‑offender … struck the complainant's left little finger with the hammer, causing a cut which bled profusely.

   The complainant was given a tea towel to wrap around his injured finger, and ordered to stand in another area of the room whilst the accused and co‑offender … cleaned blood from the table and floor area.

   The complainant then offered to bring back some bottles of alcohol previously stolen from the hotel.

   The complainant was allowed to leave the room at which point [the] co‑offender … advised him that if he did not return with the bottles, he would rape and kill the complainant's mother and sister.

   The complainant fled the area on his bicycle and attended a friend's house, where police were contacted.

   On Monday 31 December 2007, the accused participated in a video recorded interview with detectives.  He admitted being at the Lord Forrest Hotel, but declined to make any further comments.

   On Friday 4 January 2008, the accused attended the Bunbury Police Station where he was arrested.  He declined to make any further comment and the present charges were preferred."

   •The Commissioner also relies on 10 statements from witnesses that have been obtained by the Police in support of the charges against Mr Stewart.  Those statements were provided on the eve of the hearing and no objection was taken by Mr Stewart's counsel to those statements being accepted into evidence, as they had previously been received as part of the prosecution brief.  Copies of the signed statements were handed up on the day of the hearing.  The statements were from the following persons:

   •Mr Kreinbihl

   •Mr Kallenberg

   •Mr Cook

   •Mr Rossi

   •Ms Smith

   •Mr Gardiner

   •Mr Davis

   •Mr Maskell.

   •For the reasons expressed later, there is no need to summarise the content of those statements.

   •The Commissioner contends that Mr Stewart is facing very serious criminal charges which occurred at a place at which he was normally on duty as a licensee. The Commissioner notes that the criminal charges relate to alleged offences carried out in company against a 15‑year‑old boy which included allegations that the complainant was deprived of his liberty, threatened by having a gun put in his mouth and later assaulted with the use of a hammer. The Commissioner maintains that the witness statements provide real and strong evidence in support of the criminal charges.  It is on the basis of this evidence that the Commissioner submits that Mr Stewart can no longer satisfy the requirements of the SRA Act and that he cannot show he is a person of good character or fit and proper, to warrant returning his SO and CC licences.

Evidence of Mr Stewart

1. Although Mr Stewart appeared at the hearing of this matter, he chose to give no oral evidence and was not cross‑examined.  His evidence therefore constituted his witness statement dated 13 May 2008.  In summary, that statement says as follows:

   •he is currently 27 years old;

   •prior to obtaining his SO and CC licences, his work included labouring and bar work;

   •since obtaining his SO and CC licences, he has worked at the Lord Forrest Hotel and other nightclub venues in the Bunbury area;

   •he was employed at the Lord Forrest Hotel as a Manager;

   •prior to this time, he says he has never had a complaint made concerning his work as a licensee;

   •his statement also outlines some of the history in respect to his prior convictions, however, as these were not matters relied upon by the Commissioner, there is no need to detail the information concerning those convictions for the purposes of determining this matter;

   •as to the current charges, he acknowledges that he has been charged, and has pleaded not guilty to both charges - he says that he has been advised by his lawyers not to disclose the defence to those charges at this time;

   •he maintains that if his SO and CC licences are revoked, this will have a dramatic effect on his income, as he currently works at many venues in the Bunbury and Rockingham area;

   •he confirms that he is no longer employed at the Lord Forrest Hotel.

2. Mr Stewart also provided written character references from HDC Services Pty Ltd.  That letter is undated, but makes clear that Mr Stewart was employed by that security firm from 2006.  It states that during that time, Mr Stewart was employed as the Security Manager at the Lord Forrest Hotel.

3. It is a supportive character reference.  It does not, however, indicate whether it has been made with the full knowledge of the pending criminal charges.

4. Another supportive character reference was given by Mr Erceg of Harvey.  He describes himself as a friend and former co-worker of Mr Stewart.  Although it appears to be written in support of court proceedings, it does not state that Mr Erceg is aware of the criminal charges presently faced by Mr Stewart.

5. Mr Stewart's counsel submits that there is no evidence of past violence or inappropriate behaviour by Mr Stewart in the course of his duties as a licensee.

6. He also submits that, as the application seeks to revoke Mr Stewart's SO and CC licences, and as these licences involve different roles, there should be separate findings in respect to whether the evidence of pending criminal charges is sufficient to warrant the revocation of one or both of those licences.  Mr Stewart relies upon the matter of A v Commissioner of Police [2005] WASAT 121 (A v Commissioner of Police) to support that approach.  It is submitted that, whilst these charges are pending, the Tribunal should exercise caution before taking the serious step of revoking the SO and CC licences.  It was also submitted that the alleged offences did not take place whilst Mr Stewart was on duty as a licensee.  No direct evidence was given by Mr Stewart of this, but Mr Stewart's counsel relied upon some support of this conclusion in [15] of the statement of Mr Daniel Edward Davies.

Consideration

1. The issue for determination in this matter is whether there is sufficient information to show that Mr Stewart is no longer a person "of good character" and is "fit and proper" to justify the exercise of the Tribunal's discretion to revoke Mr Stewart's SO and CC licences.

2. The SRA Act does not define the meaning of the terms "fit and proper" or "of good character".  These terms have been the subject of decisions, however, in other jurisdictions.

3. In the High Court decision of Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, Justice Toohey and Justice Gaudron JJ stated:

   "The expression 'fit and proper person', standing alone carries no precise meaning.  It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities.  The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities.  However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.  The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

4. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, Walters J said in respect to "fit and proper":

   "In my opinion what is meant by [the expression 'fit and proper'] is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence … but also that he is possessed of a sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public … as a person to be entrusted with the sort of work that the licence entails."

5. These terms have also been the subject of comment by this Tribunal.  See Wignall; A v Commissioner of Police; Chan v The Nurses Board of Western Australia [2005] WASAT 115.)

6. In determining the matter, the Tribunal is able to consider all credible, relevant and significant information: see Kioa v West (1985) 159 CLR 550. Under s 32(2) of the SAT Act, the Tribunal is not bound to consider only evidence that conforms with the rules of evidence and is able to inform itself as it sees fit.

7. This includes the ability to have regard to pending criminal charges.

8. In A and Commissioner of Police, the Tribunal referred to several authorities to determine what information can be taken into account when a discretion of this nature is exercised. The Tribunal found that the existence of outstanding charges was "relevant" and that it could take into account such charges since "it may inform itself in any manner as it sees fit" [45]. The Tribunal emphasised that:

   "a presumption of innocence under the general law does not mean the licensing officer or the Tribunal should ignore information laid before it when considering whether the applicant should be licensed for purposes of crowd controller or security officer" [50].

9. The Tribunal observed that "although the applicant is presumed innocent, the Tribunal is not required to apply a 'beyond reasonable doubt' test in exercising its discretion under s 52" [69].

10. That decision matter went on appeal to the Supreme Court in the name of Grover v Commissioner of Police [2005] WASC 263 (Grover).  The decision to rely on pending charges in matters of this kind was upheld by the Supreme Court.  At [46], Justice Johnson stated as follows:

    "I am persuaded by the respondent's proposition that, in view of the purpose of the Act and the nature of the licences regulated by the Act, a licensing officer was intended by Parliament to have regard to any matter which might be capable of raising a doubt as to the existence of the necessary 'good character'.  The grant of any of the licences under the Act confers on the applicant a privilege; the statutory provisions do not establish pre-conditions to the exercise of a right.  Including as it does the conferral of powers affecting the rights of members of the public, awaiting the resolution of charges rather than granting a licence pending the outcome of the charges is an interpretation of the section consistent with the legislative intention and in accordance with the public interest which, as the Tribunal observed, includes public confidence in the security industry."

11. Justice Johnson went on to state at [47] in respect to the use of pending charges that:

    "Indeed, in my view, providing the evidence was admissible in its form, the fact that an allegation had been made which was not self-evidently unsustainable, is sufficient to adversely impact on the licensing officer[']s satisfaction as to the appellant's good character."

12. Justice Johnson went on to conclude at [49] as follows:

    "… I consider that the pending charges, evidenced by tendering the Statement of Material Facts, are relevant and admissible and cast sufficient doubt to make a conclusion of good character something that cannot be reached."

13. In this case, the basis of the case to revoke Mr Stewart's SO and CC licences relates only to criminal charges he currently faces for the alleged offences of assault occasioning bodily harm and deprivation of liberty.

1. Those charges are yet to be determined, and the Tribunal has been advised that it is unlikely they will be determined until much later this year. As evidence of pending charges is admissible and as the Tribunal is required under s 9 of the SAT Act to act speedily, the Tribunal considered it appropriate to deal with this application rather than await the outcome of the pending charges.

2. Mr Stewart has not sought to explain any of the circumstances surrounding those charges in an effort to show that they are of themselves "self‑evidently unsustainable", as referred to in the matter of Grover.

3. Further, I am not required to determine those charges, and the Tribunal accepts that a person is entitled to the presumption of innocence in the face of criminal charges.  However, this does not mean that pending criminal charges cannot be taken into account when determining whether a person is of "good character" and "fit and proper".

4. Mr Stewart's counsel suggests that there should be separate findings made in respect to each of the licences, as they involve different duties and, for that submission, relies on the decision of A v Commissioner of Police.  In that decision, the Tribunal, in similar circumstances, sought to distinguish between the different duties performed by a security officer and a crowd controller, and allow the licensee to retain his SO licence.  However, that outcome was the subject of obiter comments by Justice Johnston on appeal to the Supreme Court in the matter of Grover, where at [17] she stated:

   "I confess to having some difficulty with the conclusion that a licensing officer could be satisfied, on the same evidence, that the applicant is of good character and is a fit and proper person to hold a security officer['s] licence but could not be satisfied that the applicant was of good character and was a fit and proper person to hold a crowd controller's licence.  It seems to me that suitability to deal with the public and to exercise certain powers with respect to members of the public in the course of either type of licence would be affected by evidence of criminal conduct, be it established or alleged …"

5. Although the comments are obiter, they are directly pertinent to this issue and are therefore highly persuasive.  As stated by Justice Johnston, both licences require the licensee to exercise certain powers with respect to members of the public.  Accordingly, I consider in this case it is unnecessary for me to make any separate assessment of Mr Stewart's suitability to retain either his SO licence or his CC licence, based on the information presented.

6. Mr Stewart has also raised issues of hardship in respect to maintaining his licences ‑ in particular, that if he cannot keep his licences, it will dramatically affect the level of his income.  However, such issues are not relevant in the determination of applications of this nature.  In the matter of The Registrar, Real Estate and Business Agents Supervisory Board v Barnett (unreported, SCt of WA (Full Court); Library No 970426A, delivered 26/8/97), Justice Kennedy stated as follows:

   "The fact that the respondent would be prevented from earning an income in the calling he knows is also irrelevant if he is unable to attain the personal standards the [SRA] Act requires."

7. So, although the Tribunal is sympathetic to the position Mr Stewart finds himself in, the fact that he will be prevented from earning income as a licensee is not a factor that is relevant in determining whether he satisfies the requirements of s 52(c) of the SRA Act.

8. The criminal charges presently faced by Mr Stewart are matters that, of themselves, and without more, adversely impact on his good character.  They are serious charges and relate to conduct alleged to have been carried out by Mr Stewart.  Although it is not clear whether they occurred in the course of his duties as a security officer or crowd controller, it is not disputed that they occurred at the place where Mr Stewart was employed as a licensee under the SRA Act.

9. I accept that Mr Stewart does not have any convictions for offences carried out whilst in the course of his duties as a licensee.  He also has provided supportive character references.  However, those references do not appear to have been given with the knowledge of the charges presently faced by Mr Stewart, and therefore I consider them of little weight in this matter.

10. In determining this matter, the Tribunal must balance the interest of the licensee with those of the public and others involved in the same profession.  I note the comments in Collins v Estate Agents Board (1994) 7 VAR 394 at 399 where the Administrative Appeals Tribunal said:

    "The consideration of this Tribunal must be primarily directed towards the protection of the public and the maintenance of public confidence in, and the professional standards of, the industry that the Act is regulating."

11. The alleged offences set out in the statement of material facts allege conduct of a serious nature of direct relevance to the duties of a security officer and crowd controller.  In particular, they allege violent behaviour and deprivation of liberty against a member of the public carried out at a place where Mr Stewart ordinarily conducted his duties as a licensee.  Such conduct is of a kind that is directly at odds with the protection of the public and the maintenance of public confidence in the professional standards of the security industry.  Such evidence is admissible, and Mr Stewart has offered no explanation in respect to those alleged offences to show they are self‑evidently unsustainable.  This evidence therefore adversely impacts on the assessment of Mr Stewart's good character.  As such, it is sufficient to establish that, at this time, without anything more and whilst the alleged criminal charges remain unresolved, the Tribunal cannot be satisfied that Mr Stewart remains a person of "good character" and "fit and proper" to warrant retaining his SO and CC licences.  Although the Commissioner also relied on numerous witness statements obtained in respect to the pending charges, given that Mr Stewart did not seek to offer any explanation concerning the pending charges, it was unnecessary to have regard to those witness statements.

12. The Tribunal therefore finds that Mr Stewart's SO and CC licences be revoked.

Order

1.The applicant's Security Officer's licence (SO25701) and Crowd Controller's licence (CC25701) are hereby revoked.

I certify that this and the preceding [43] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS J HAWKINS, MEMBER