Commissioner of Police v Krzeminski

[2002] NSWADTAP 3

Appeal Panel

CITATION:	Commissoner of Police, New South Wales Police Service -v- Krzeminski [2002] NSWADTAP 3 revised - 21/01/2002
PARTIES:	APPELLANT Commissoner of Police, New South Wales Police Service RESPONDENT Dean Krzeminski
FILE NUMBER:	019038
HEARING DATES:	13/09/2001
SUBMISSIONS CLOSED:	01/02/2002
DATE OF DECISION:	01/17/2002
DECISION UNDER APPEAL:	Krzeminski -v- Commissioner of Police, New South Wales Police Sevice [2001] NSW ADT 103
BEFORE:	Hennessy N (Deputy President); Montgomery S - Judicial Member; Bolt M - Member
CATCHWORDS:	leave to extend to the merits - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003320
DATE OF DECISION UNDER APPEAL:	06/22/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR Collector of Customs v Pozzolanic (1993) FCR 280 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
REPRESENTATION:	APPELLANT G Hoare, barrister RESPONDENT In person
ORDERS:	1. The decision of the Tribunal is set aside.; 2. Leave is not granted for the appeal to extend to a review of the merits of the appealable decision; 3. The matter is remitted to a differently constituted Tribunal to determine the question of whether the offences for which Mr Krzeminski has been convicted constitute "serious assault offences" in accordance with the reasoning in this decision. Each party should be given the opportunity to make written or oral submissions on this issue..

Introduction
1 Mr Krzeminski lodged an application with the Tribunal seeking a review of a decision of the Commissioner of Police (the Commissioner). The decision was not to grant Mr Krzeminski Classes A, B and C security industry licences. There were two reasons for the refusal of the licences. The first reason was that he was not entitled to the licences because he had been convicted of a “serious assault offence” under section 11(c)(ii) of the Security Industry Regulation 1998 (the Regulation). The second reason was that he was not a fit and proper person to hold the licences under s 15 of the Security Industry Act 1997 (the Act). The parties agreed that the Tribunal at first instance should determine two issues as preliminary questions. These issues were:
(a) whether, in the opinion of the Tribunal, the finding that the applicant was guilty of a criminal offence in 1997 with no conviction recorded is appropriately characterised as a "serious assault offence" within the meaning of section 11(c)(ii) of the Regulation; and

(b) whether there was an offence "relating to" firearms or weapons here within the meaning of section 11(a) of the Regulation.

2 The Tribunal made the following findings and orders:
1. In the opinion of the Tribunal, the finding that the applicant was guilty of two assault offences on 16 June 1997 with no conviction recorded is not a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Security Industry Regulation 1998;

2. The applicant's two assault offences on 16 June 1997 were not offences relating to firearms or weapons within the meaning of regulation 11(a) of the Regulations;

The matter be listed by the Registrar for further directions.

3 On 25 July 2001, the Commissioner for Police lodged an appeal against the Tribunal’s preliminary decision. Mr Krzeminski did not reply to the Notice of Appeal, but appeared and made oral submissions to the Appeal Panel. The Commissioner made written submissions following the hearing. Mr Krzeminski asked for an extension of time to make written submissions. He was given until 2 January 2002 to do so. No submissions were received by that date.

Jurisdiction of Appeal Panel
4 The power of the Appeal Panel to hear this matter is found in s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113 of the ADT Act states that:

(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.

(2) An appeal:

(a) may be made on any question of law, and

(b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.

(3) An appeal must be made:
(a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or

(b) within such further time as the Appeal Panel may allow.

(4) An appeal is to be made in the manner prescribed by the rules of the Tribunal.

The decision under appeal was made on 22 June 2001. The Notice of Appeal was filed on 25 July 2001. The ADT Act sets time limits in relation to appeals: see s 113(3).

5 The appeal is out of time because it was not made within 28 days of the decision. Given that the appeal was only five days late and there was no prejudice to the respondent, the Appeal Panel allows the Commissioner an extension to the 25 July 2001 to lodge the appeal.

Grounds of Appeal
6 The grounds of appeal relied on by the Commissioner were as follows:

1. The respondent submits that the Judicial Member Robinson made an error of law in finding that the offence for which the applicant was found guilty with no conviction recorded is not a “serious assault” offence.

2. The respondent submits that the Judicial Member made an error of law in finding that the two assault offences were not offences relating to the possession or use of a weapon.

3. The respondent reserves the right to make detailed submissions in relation to issues contained in the Notice of Appeal after obtaining a copy of the transcript of the original proceedings.

4. The respondent submits that the Appeal Panel should grant leave to extend the proceedings to include issues relating to the merit of the decision.

7 The respondent withdrew the second ground in written submissions dated 11 October 2001.

Tribunal’s reasoning
8 The Tribunal’s decision that the offence in question was not a “serious assault offence” was based on its interpretation of section 16(1)(b) of the Act and section 11 of the Regulation. Section 16(1)(b) of the Act provides that:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: ...
(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law

9 Clause 11 of the Regulation relevantly provides:
Offences that disqualify applicants: section 16

For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: ...

(c) Offences involving assault
An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:
(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or

(ii) in such cases where the applicant concerned has been found guilty but not been convicted-an offence that, in the opinion of the Commissioner, is a serious assault offence.

(Emphasis added.)
10 At [18] of the decision, the Tribunal summarised the Commissioner’s submission in relation to the meaning of “serious assault”:
In oral submissions, the respondent went on to submit that the tribunal can only consider the circumstances of the actual offence and cannot consider any mitigating circumstances or circumstances relating to the penalty imposed. It was said the tribunal should regard only the actual circumstances of the case insofar as it was required to establish the charge was proved and the motives or intention of the applicant at the time of committing the offence are irrelevant. I do not agree.
11 The Tribunal concluded that the whole of the circumstances relating to the offence are relevant including the effect on the victim, the applicant’s state of mind and his motives for committing the offence as well as matters that would ordinarily go to penalty or in mitigation of penalty. In relation to this case, the Tribunal concluded at [23] that the assaults:
. . . were in the serious category, having regard to all the circumstances that lead to the commission of the offence, including the applicant’s explanation, his medical and mental condition and state of mind at the time I have formed the opinion that the two subject counts of assault do not constitute serious assault offences . . .
12 The Tribunal was fortified in this view by Finkelstein J’s decision in Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 .

Issues
The issues before the Appeal Panel are as follows:

• Is the question of what constitutes a “serious assault offence” a question of fact, a question of law, or a mixed question of fact and law?
• If it is a question of law, has the Tribunal erred in construing the phrase as it did?
Is the meaning of the phrase a “serious assault offence” a question of law?
13 The Tribunal noted in its decision at [17] that the Commissioner (the respondent in the proceedings at first instance) made the following submission in relation to the proper construction of the expression "serious assault offence":
Neither the Act, nor the regulations contain a definition of what is to be regarded as a "serious assault". It is the respondent's submission that this is a question of fact and degree for determination by the tribunal.
14 In its decision at [21], the Tribunal agreed with the Commissioner’s initial submission that the meaning of “serious assault offence” is a question of fact. The Commissioner withdrew this submission in written submissions to the Appeal Panel and submitted that the proper construction of any legislative enactment is a question of law.

15 What constitutes a question of law has always been a difficult question for courts and tribunals. In Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR at 389 the High Court referred to the summary of relevant principles formulated by the Federal Court in Collector of Customs v Pozzolanic (1993) FCR 280 at 289:

One, the question, whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning, is a question of law.

Two, the ordinary meaning of a word, or its non-legal technical meaning, is a question of fact.

Three, the meaning of a technical, legal term is a question of law.

Four, the effect or construction of a term, whose meaning or interpretation is established, is a question of law.

Five, the question, whether the facts fully found fall within the provision of a statutory enactment, properly construed, is generally a question of law.

16 In our view, items two and four above cover the present situation. The word “serious” is an ordinary word and its meaning is a question of fact. However, the scope of the matters that can be taken into account in determining whether a particular offence is a “serious assault offence” involves the effect or construction of this phrase. That is a question of law. Consequently the interpretation of the phrase involves both questions of fact and questions of law. It is the question of law that is the subject of this appeal.

17 Finkelstein J in Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 made a similar finding. In that case, the Federal Court heard an appeal from the Administrative Appeals Tribunal (AAT) which had affirmed a decision to make a deportation order under s 500 of the Migration Act 1958 (Cth). Such an appeal can only be made to the Federal Court on a question of law. One of the questions addressed by Finkelstein J was the meaning of the phrase “particularly serious crime” in Article 33(2) of the Convention Relating to the Status of Refugees 1951. His Honour concluded that the AAT acted on a misconstruction of that phrase and held that “. . . a failure by either the Minister or the Tribunal to properly apply the Convention, that is to say apply the Convention in accordance with its proper construction, is a reviewable error of law.” The construction of the phrase “particularly serious crime” is analogous to the construction of the phrase “serious assault offence”.

18 We find that the effect or proper construction of the phrase “serious assault offence” is a question of law within the meaning of that term in s 113(2)(a) of the ADT Act.

Did the Tribunal err in construing the phrase “serious assault offence” as it did?
19 Commissioner’s submissions. The Commissioner noted that neither the Act nor the Regulation define “serious assault offence.” The Commissioner submitted that the Tribunal erred in interpreting this phrase as including a subjective test. As noted above at [14], the Tribunal took into account the offender’s “state of mind and his motives at the time of the commission of the offence” as well as the subjective matters “that would ordinarily go to penalty or in mitigation of penalty.”

20 In Betkhoshabeh v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 Finkelstein J was interpreting the phrase “particularly serious crime” as it appears in Article 33 of the Convention Relating to the Status of Refugees 1951. That article states that:

1. No Contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country." (Emphasis added.)

21 Finkelstein J held at 471E that whether or not a crime such as a rape is a “particularly serious crime” will depend on “all of the circumstances that led to the commission of those offences including those circumstances that would diminish the appellant’s moral culpability for having committed them.” The Commissioner sought to explain Finkelstein J’s “expansive” construction of this term as necessary to protect the applicant from deportation in the particular circumstances of that case. In contrast, the Commissioner submitted that the Act and Regulation were enacted to regulate the security industry. The public policy is clear that only those who meet the statutory requirements should be entitled to hold a licence. Where there is doubt as to the intended meaning of a specific term in such legislation such doubt must be resolved in favour of the objective “exclusionary” intention of the legislation as a whole. Subjective features of individual applicants must be outweighed by the need to protect the public generally.

22 The Commissioner’s second point was that matters other than the nature of the offence should not be taken into account because Cl 11(c)(ii) of the Regulation only applies when an offender “has been found guilty but not been convicted.” Under s 556A of the Crimes Act 1900 (now repealed) the District Court found Mr Krzeminski guilty of two assault offences without proceeding to conviction. In determining such matters the court may dismiss the charge or discharge the offender conditionally on entering into a bond to be of good behaviour for not more than three years. The court is to have regard to the following factors in deciding whether to make such an order:

“the character, antecedents, age, health, or mental condition of the person charged, or to the trivial nature of the offence, or to the extenuating circumstances under which the offence was committed, or to any other matter which the court thinks it proper to consider.”
23 The Commissioner’s submission was that since Neild J had already had regard to these matters in deciding not to proceed to a conviction, it was not appropriate for the Tribunal to have regard to them in determining whether the offence is a “serious assault offence.”

24 In the Commissioner’s view, the assaults in this case were objectively serious. The Tribunal is not bound by the decision in Betkhoshabeh v Minister for Immigration and Multicultural Affairs and the Commissioner urged the Appeal Panel not to apply the reasoning or conclusion in that case.

25 Appeal Panel’s reasoning and decision. The decision in Betkhoshabeh v Minister for Immigration and Multicultural Affairs can be distinguished from the present case, not because of the public policy reasons advanced by the Commissioner, but because of the context in which the words appear in each case. Words must be read, not in isolation, but in the context of the enactment of which they form a part. (See K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514 per Mason J).

26 The words “particularly serious crime” in Betkhoshabeh relate to the situation where the person has been convicted of such a crime and constitutes a danger to the community. Article 33 of the Convention Relating to the Status of Refugees 1951 does not differentiate between a conviction as opposed to a finding of guilt, with no conviction recorded.

27 The legislature could have made the Commissioner’s opinion that the offence is a “serious assault offence” the test for mandatory refusal of an application regardless of whether or not a conviction had been recorded. If the legislature had chosen this option, the context of the words would have been similar to that in Betkhoshabeh and a finding that the phrase was intended to include all the factors relevant to the offence, would have been open.

28 But the Act and Regulation differentiate between these two situations. Where a conviction is recorded, the person is disqualified from holding a licence for 10 years from the date of the conviction if the offence is prescribed by the Regulation. The Regulation prescribes certain offences including assaults by reference to the penalty imposed, such as imprisonment or a fine of a particular magnitude. Where no conviction is recorded, the person is disqualified from holding a licence for 5 years from the time he or she is found guilty if, in relation to an assault offence, the offence is a “serious assault offence.”

29 When dealing with a matter under s 556A the court is to have regard to any matter which it thinks it proper to consider including the character, health and mental condition of the person charged and the trivial nature of the offence. In general, it can be assumed that where no conviction is recorded the offence itself and/or the circumstances surrounding the offence are not considered sufficiently serious to warrant a conviction. If the Tribunal takes into account the same or similar factors when assessing whether the offence is a “serious assault offence” there would be very few, if any, cases which it would categorise as “serious”.

30 The “trivial nature of the offence” is one of the factors listed in the former s 556A. If a person is found guilty but no conviction is recorded, the reason, or one of the reasons, for not recording a conviction may be the trivial nature of the offence. If that is the case then it is unlikely that the Tribunal would find that the offence is a “serious assault offence.” However if factors other than the trivial nature of the offence form the basis for the decision not to record a conviction, then the offence itself may still be serious.

31 Another reason supporting a narrow interpretation of “serious assault offence” is that the legislature has already taken into account the fact that offences where no conviction is recorded are less serious by reducing the disqualification period from 10 years to 5 years. Nevertheless the legislature decided that an application for a security industry licence should still be refused where the assault was a “serious assault offence.” As the period of disqualification has already been discounted the legislature cannot have intended that all the same factors be taken into account again by the Commissioner or the Tribunal in assessing the seriousness of the offence.

32 It follows from this reasoning that the Tribunal made an error of law in interpreting the phrase “serious assault offence” to include factors other than the nature of the offence itself. In our view the term refers to the offence or offences as found by the court. In assessing whether the offence is “serious” the Tribunal must confine itself to the material which was before the decision maker when hearing the case. It is not the Tribunal’s role to re-hear the criminal charges or to take any fresh evidence into account.

33 A Tribunal deciding whether an offence is a “serious assault offence” should also keep in mind the range of assault offences to which s 556A (or its equivalent) applies.

Review of the merits
34 The Tribunal in this case determined that:

In the opinion of the Tribunal, the finding that the applicant was guilty of two assault offences on 16 June 1997 with no conviction recorded is not a "serious assault offence" within the meaning of regulation 11(c)(ii) of the Security Industry Regulation 1998;
35 The Commissioner of Police sought leave for the appeal to be extended to a review of the merits of this finding. If the Appeal Panel did grant leave it would mean that we would determine whether the offences constitute “serious assault offences” based on the reasoning set out in this decision and the material in the file: s 115 ADT Act. The Commissioner of Police has made submissions as to why the offences are serious assault offences, but Mr Krzeminski has not. In these circumstances, if the appeal were extended to the merits, Mr Krzeminski would have to be given the opportunity to put any submissions before the Appeal Panel.

36 Because Mr Krzeminski would have to be given an opportunity to make further submissions whether the Appeal Panel or the Tribunal hears the merits of the case, we have decided not to give leave to extend the appeal to the merits. The Tribunal should be the primary fact finder and the Appeal Panel should not take over that role unless there are good reasons for it to do so.

37 In this case we consider that it is more appropriate to remit this matter to a differently constituted Tribunal. The reason for remitting the matter to a differently constituted Tribunal is that the original Tribunal has already expressed a view that the assaults in this case were in the serious category. At para 23 of the decision, the Tribunal said that “While the assaults here were in the serious category, having regard to all the circumstances . . . I have formed the opinion that the two subject counts of assault do not constitute serious assault offences . . .”

38 If the Tribunal finds that the offences are not “serious assault offences” it must go on and hear the next issue in dispute which is whether Mr Krzeminski is a fit and proper person to hold a security licence. If the Tribunal’s decision is that the offences are “serious assault offences” then that is the end of the matter.

Orders

1. The Tribunal’s decision is set aside.

2. Leave is not granted for the appeal to extend to a review of the merits of the appealable decision

3. The matter is remitted to a differently constituted Tribunal to determine the question of whether the offences for which Mr Krzeminski has been convicted constitute “serious assault offences” in accordance with the reasoning in this decision. Each party should be given the opportunity to make written or oral submissions on this issue .