COMMISSIONER OF POLICE and THOMPSON - [2006] WASAT 238

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

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

CITATION: COMMISSIONER OF POLICE and THOMPSON [2006] WASAT 238

MEMBER: DR B DE VILLIERS (MEMBER)
MS M ANGUS (SESSIONAL MEMBER)
MR J N HARPER (SESSIONAL MEMBER)

HEARD: 11 AUGUST 2006

DELIVERED : 17 AUGUST 2006

FILE NO/S: VR 395 of 2005

BETWEEN: COMMISSIONER OF POLICE
Applicant
AND
WAYNE BRADDEN THOMPSON
Respondent

Catchwords:

Security activities - Crown control - Of good character - Fit and proper - Criminal record

Legislation:

Security and Related Activities (Control) Act 1996 (WA), s 35, s 52, s 52(c), s 67(1), s 67(1a), s 67(2)

Result:

Application succeeds

Category: B

Representation:

Counsel:

Applicant: Sergeant S Wood
Respondent: Mr M Cuerden & Mr M Andrews

Solicitors:

Applicant: Western Australia Police
Respondent: Mark Andrews Legal Pty Ltd

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

A and Commissioner of Police [2005] WASAT 121
Coulthard v Henneker [2003] WASCA 187
CSR Ltd v Della Maddalena [2006] HCA 1
Hughes and Vale Pty Ltd v The State of New South Wales [No 2] (1955) 93 CLR 127
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Commissioner of Police sought orders for the crowd controller licence of Mr Thompson to be revoked pursuant to disciplinary action. The Commissioner contended that Mr Thompson fails to satisfy the requirements of character and fit and proper as set out in s 52(c) of the Act due to his criminal record. The criminal record contained several traffic and driving offences and an unlawful wounding conviction. Counsel for Mr Thompson contended that the traffic and driving offences are not relevant to the duties of a crowd controller. In regard to the unlawful wounding conviction, Counsel took issue with the reasons for decision by Magistrate Lane and submitted that due to certain shortcomings in the reasons the conviction ought not to serve as sufficient ground for disciplinary action.
The Tribunal found that it must take into account all information of relevance to the application, including the traffic and driving convictions as well as the unlawful wounding conviction. On the basis of the criminal record the Tribunal concluded that there were sufficient grounds for disciplinary action against Mr Thompson.
Orders were therefore made for the application to succeed and for the crowd controller licence to be revoked.

Background

This is an application pursuant to s 67(1) of the Security and Related Activities (Control) Act 1996 (WA) (the Act).
Mr Thompson was first issued with a crowd controller licence on 21 December 2001 for 1 year. The licence was renewed in December 2002 for 3 years and on 19 December 2005 it was renewed for a further 3 years. Mr Thompson currently works as a crowd controller for 2 nights per week and is also general manager of a security company.
Counsel for the applicant (Sgt Wood) contended there are grounds for disciplinary action against Mr Thompson for reason of his criminal record. The record comprises a conviction of unlawful wounding that arose from an incident while he was on duty as a crowd controller on 21 April 2003 and 12 traffic/driving offences. A copy of the record formed part of the documents and at the hearing the statements of material facts of driving/traffic offences committed on 29 March 2004, 7 January 2005, 8 October 2005 and 15 October 2005 were submitted.
Mr Wood contended that pursuant to s 67(2) of the Act the crowd control licence (CC 24058) of Mr Thompson should be revoked by the Tribunal as a disciplinary action since Mr Thompson no longer meets the requirement of s 52(c) of the Act that he be of good character and a fit and proper person to hold a licence.
Counsel for Mr Thompson (Mr Cuerden) contended that the traffic/driving offences were not relevant to the duties of a crowd controller and that the unlawful wounding offence was out of character. Mr Cuerden also took issue with the reasons for decision of Magistrate Lane and contended that there were serious shortcomings in the reasons. Mr Cuerden also referred to the several character references that formed part of the application. Some of these references were by persons in the security industry and they support Mr Cuerden's contention that Mr Thompson is fit and proper and of good character to continue to be licensed under the Act as a crowd controller.

Statutory framework

Section 67(2) of the Act empowers the Tribunal to revoke the licence if it is satisfied that a proper cause for disciplinary action exists.
In order to make such a finding, the Tribunal is guided by s 67(1a) of the Act which sets out the grounds for disciplinary action. Of relevance to this application is sub-paragraph (b) which refers to s 52(c) of the Act. This sub‑section authorises the Tribunal to revoke Mr Thompson's licence if it is satisfied that he no longer meets the requirements of being of good character and a fit and proper person to be licensed as a crowd controller.
The Tribunal must hear the matter de novo, take in to account all information that is relevant to the application and make a determination pursuant to s 52(c) as to whether it (Tribunal) is satisfied that Mr Thompson is of good character and is a fit and proper person to hold the licence.
During the hearing, Mr Cuerden raised concerns in regard to (a) the action of Mr Clarkson by issuing Mr Thompson with a renewal of the licence in December 2005 and (b) the relevance of the statements of material facts as submitted. The Tribunal explained that it is obliged to take into account all relevant information and that the statements of material facts fall into that category. In regard to the actions of Mr Clarkson when the renewal of the crowd controller licence was approved in December 2005, the Tribunal notes that the purpose of the current proceedings is not to review the appropriateness of Mr Clarkson’s actions at that time – it is a de novo hearing where all information of relevance to the application can be taken into account.
The Tribunal may revoke the licence if it is satisfied that a cause for disciplinary action exists and that Mr Thompson should not be licensed pursuant to s 52(c) of the Act.

Submissions

Sergeant Wood sought disciplinary action on grounds of Mr Thompson's criminal record. Sergeant Wood contended the seriousness of the unlawful wounding offence is compounded by the fact that it was committed while Mr Thompson was on duty at a nightclub and the complainant was a female. Mr Thompson appears to have lost his temper and although this may have been the first time that he had been convicted of such an offence, the action he took was serious and caused facial injuries to the complainant. Sergeant Wood emphasised that as crowd controller Mr Thompson must be able to control his temper and resist the urge to lash out at patrons in a nightclub – especially if they are intoxicated or when they act or behave in a provoking way. Crowd controllers often work in very challenging situations and are required to keep their cool and bring calm to a situation rather than to inflame it by responding to provocation.
In regard to the traffic/driving offences Sergeant Wood contended that the offences are relevant to the application. According to Sergeant Wood, the offences are indicative of Mr Thompson's (a) ongoing disregard for the law by driving without a licence, (b) lack of honesty by lying to the police at two occasions about his true identity, (c) disregard for public safety by his wild and reckless driving spree on 15 October 2005 and (d) his inability to control his emotions by defending his actions of 15 October 2005 on grounds that he was upset about the conviction three weeks earlier in the Magistrates Court.
Sergeant Wood challenged the weight to be attached to the character references submitted by Mr Thompson on grounds that the referees were not necessarily aware of his entire criminal record some were related to him, and insufficient reference was made to characteristics such as honesty and character. Sergeant Wood referred to Hughes and Vale Pty Ltd v The State of New South Wales [No 2] (1955) 93 CLR 127 at 156 to conclude that the test of "fit and proper" comprises three elements namely honesty, knowledge and ability. According to Sergeant Wood, Mr Thompson fails these tests due to his dishonesty and his lack of ability to control his temper.
Sergeant Wood submitted that the entire criminal record must be taken into account by the Tribunal to determine if the application should succeed. He concluded that if all information is taken into account, the public interest demands that disciplinary action be taken and the licence be revoked. Mr Thompson's behaviour in essence falls short of what is expected by the public of a crowd controller.
Mr Cuerden referred to several authorities in which "fit and proper" is considered and concluded that there are no inflexible rules and that discretion should be exercised in each case on the basis of the facts. Mr Cuerden submitted that this application does not deal primarily with "character" but he agreed that not much turns on the contention since s 52(c) refer to "character" and "fit and proper" in the same context. It is therefore accepted by the Tribunal that both these tests are under consideration in these proceedings.
Mr Cuerden emphasised that the Tribunal must not solely be guided by the unlawful wounding conviction but that it should consider the facts leading to the conviction in exercising its discretion. He referred to the case of Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 to support his contention that the Tribunal should take the facts behind the conviction into account. Mr Cuerden then analysed the reasons given by Magistrate Lane and concluded that it was completely inadequate and that little weight should be given to the conviction of unlawful wounding. Mr Cuerden acknowledged that although it may not be possible for a judge to expound on all considerations that influenced the decision, it is essential that conclusions must be grounded in "rationality" and "logic". In this regard Mr Cuerden referred to CSR Ltd v Della Maddalena[2006] HCA 1 at 46.
Mr Cuerden concluded that the reasons for decision by Magistrate Lane were so blatantly inadequate that the facts as summarised by the Magistrate and the conviction in itself should not sway the Tribunal to take disciplinary action.
In regard to the traffic offences, Mr Cuerden challenged the relevance of the offences to the test of character and fit and properness as set out in s 52(c) of the Act. He drew the Tribunal's attention to the fact that Mr Thompson pleaded guilty to all the offences, that he has shown remorse, that he is not driving his car anymore and that no other complaints have been made against him in the discharge of his duties. To the contrary, several letters of reference were submitted from persons who know him in his professional capacity and they support his ongoing licensing as a crowd controller. Mr Cuerden referred in particular to the reference by Mr Cattermole from Paramount.
Mr Cuerden concluded that there are not sufficient grounds for disciplinary action and that the renewal of the licence by the Commissioner in December 2005 is indicative of the fact that the officer at the time was of the view that Mr Thompson complied with the requirements of s 52(c) of the Act.

Consideration

The Tribunal has balanced all the above considerations to come to a correct and preferable decision. We note that the public interest is multifaceted – on the one hand it requires that persons who do not continue to meet the test of s 52(c) to be disciplined, but the Act bestows a discretion on the Tribunal to determine if the actions of a person are serious enough to justify disciplinary steps.
The Tribunal has the discretion to take into account any relevant information that might assist it to come to a decision under s 52(c). This includes taking into account considerations such as the objectives of the Act, the interests of the public, the nature of the duties that Mr Thompson is required to discharge, the circumstances in which the duties may be discharged, the criminal record of the Mr Thompson, the circumstances in which an offence was committed, and information regarding his character, the time that has lapsed since the conviction, and his ability to fulfil the duties required from him. It is therefore not an exercise in theory but a decision based on the practical situation of the Mr Thompson.
The duties of crowd controllers pursuant to s 35 of the Act require from them an ability to control their own behaviour and those of other people, to screen persons and to remove persons from premises. It is clear they work in potentially volatile situations and must be of a good character and fit and proper to fulfil the duties. In this regard, the three‑legged test of honesty, knowledge and ability as set out in the Hughes matter is useful.
That brings us to the question what is meant by "fit and proper" and "good character" since the Act does not define what the legislator intended with the words.
In the decision of A and Commissioner of Police [2005] WASAT 121 the Tribunal referred to several authorities dealing with the fit and proper-test. In par 61 of the decision the Tribunal concluded as follows:
"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 Act and to demonstrate a level of moral integrity and rectitude of character commensurate with their duties. We have a duty to protect the interests of the public and maintain public confidence in the security industry."
We regard the finding by Barker J in Coulthard v Henneker [2003] WASCA 187 at par (60) particularly instructive namely that the issue before the licensing officer requires him to "balance factors for or against" the respondent to determine if he satisfies the s 52(c) test.
In considering the submissions and evidence, the Tribunal will first deal with the conviction of unlawful wounding.
Mr Thompson was convicted on 23 September 2005 of unlawful assault on a female patron while being on duty on 21 April 2003. Although Mr Cuerden raised concerns over the quality of reasons for decision, the Tribunal is satisfied that it can take into account the facts in regard to the assault as well as the comments made by Magistrate Lane about the evidence of Mr Thompson. Some of the criticism raised by Mr Cuerden may be such that the decision could have been appealed, but we are nevertheless satisfied that the facts leading to the conviction point to Mr Thompson causing facial injuries to the complainant when he threw a glass at her. And we can take those facts into account. We also note that Magistrate Lane described the evidence of Mr Thompson as not "credible or reliable at all".
Mr Andrews who represented Mr Thompson at the Magistrate Court proceedings contended that the fine should be "significant to reflect the community's disapproval of persons who are engaged in the security industry acting in the manner that the court found he did…." Mr Andrews concluded that according to his experience "it is almost inevitable that a conviction of this nature, will almost, without question, trigger" the revocation of the licence. He then said "I think that, in the circumstances of this case, they (SAT) would find him (Thompson) to be an unfit person, and that would endure for some time".
The Tribunal therefore rejects the contention that we cannot take into account the facts and the finding made by Magistrate Lane. A crowd controller who lashes out at a patron when he is provoked is not the typical character that ought to be licensed under the Act. The training of crowd controllers aims to instil into them the importance of being able to respond without aggression to volatile situations. Mr Thompson's actions reflect not only on the aggressiveness of his character, it also puts into question whether he is fit and proper to be licensed. The rejection of his evidence by Magistrate Lane is a further negative reflection on his character and his fit and properness as far as the requirement of "honesty" is concerned.
We will next deal with the traffic offences committed by Mr Thompson. The Tribunal must also take into account the facts behind these convictions.
Prior to 21 March 2003, Mr Thompson had 2 convictions in 2003 and 2004 for Demerit Point Suspension, Since March 2003, Mr Thompson has been convicted on 9 occasions for driving related and honesty offences, as follows:
•Two convictions for giving a false name to the police (29 March 03 and 7 January 05);
•Three convictions for driving without a licence (12 May 2004, 13 January 04 and 21 October 05);
•One conviction for driving an unlicensed vehicle (13 January 05); and
•Three convictions for reckless driving, failing to stop when called upon by a police officer and driving in excess of 0.02% (21 October 2005).
The reckless driving incident showed a complete disregard for the safety of the public and a rejection of authority of the police. The high speeds Mr Thompson acknowledged he had been travelling at over some considerable distance, which he continued after being signalled by police to stop, and the serious high speed accident that followed, put many members of the public, going about their normal daily business, himself and the police officers at high risk of injury or worse. The Tribunal rejects as inadequate his explanation that he was "feeling depressed" following his unlawful assault conviction three weeks earlier. Even if the conviction had indeed contributed to his reckless driving, it serves to demonstrate a lack of self-control, and lack of regard for others.
Mr Thompson submitted several character references in support of his defence. The Tribunal notes that several of the references are from persons involved in the security industry, persons who previously employed Mr Thompson and persons in senior positions in companies involved in the industry. Some of the references were undated and some where from friends. The general theme that runs through the references is that his behaviour on the fateful evening was "out of character", that he is loving and caring person, reliable, trustworthy, dedicated, extremely honest, highly respected, professional and a person of great skill. However, unfortunately none of these persons were called to give evidence. The Tribunal was therefore not in a position to test the evidence or to establish whether these persons had a full and complete knowledge of his criminal record.

Finding

On balance, it is our view that there are sufficient grounds for disciplinary action to be taken against Mr Thompson. His actions during the past three and a half years indicate a serious and reckless disregard for the law, a risk of resorting to violence, a lack of self-control, a lack of regard for others and an unreliability when giving evidence to the courts or information to the Police. Although he pleaded guilty to the traffic offences it remains a blemish on his character that he acted in the way he did. He misled Police on two occasions and in the process gave the name another person whom he knew had a licence. This puts a question mark over his version of events and shows repeated and calculated dishonesty to law enforcement officials. His reckless driving spree after his conviction of unlawful wounding demonstrates a "don't care" attitude and a complete disrespect for the rights of innocent members of the public. This behaviour compounds his behaviour in the nightclub when he wounded a female patron while working as a crowd controller.

Following from the evidence presented to us, we are therefore satisfied that a cause for disciplinary action exist pursuant to s 67(1). The application should therefore succeed.

Orders

1.The application succeeds.
2.The crowd control licence (CC 24058) of Mr Thompson is revoked.
3.The licence must be returned to the Commissioner immediately.

I certify that this and the preceding [38] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER