Coulthard v Henneker

[2003] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   COULTHARD -v- HENNEKER [2003] WASCA 187

CORAM:   BARKER J

HEARD:   18 & 25 JUNE 2003

DELIVERED          :   21 AUGUST 2003

FILE NO/S:   SJA 1012 of 2003

BETWEEN:   PEGGY SYLVIA COULTHARD

Appellant

AND

AARON KEITH HENNEKER
Respondent

Catchwords:

Appeal - Justices Act 1902 (WA) - Security Officer's Licence - Whether respondent "fit and proper" person to act as a security agent - Prior conviction for common assault - Relevant considerations

Legislation:

Justices Act 1902 (WA)

Security and Related Activities (Control) Act 1996 (WA), s 7(1), s 12(1), s 16, s 19, s 34, s 35(1), s 38(1), s 43, s 52, s 59, s 72

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms L B Christian

Respondent:     Mr G F Edwards

Solicitors:

Appellant:     State Crown Solicitor

Respondent:     G F Edwards

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

Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357

House v The King (1936) 55 CLR 499

Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127

Maxwell v Dixon [1965] WAR 167

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

Tavelli v Johnson, unreported; SCt of WA; Library No 960693; 25 November 1996

The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997

Case(s) also cited:

Nil

BARKER J: 

Introduction

1. This is an appeal under the Justices Act 1902 (WA) against the decision of his Worship Mr McIntyre SM in the Court of Petty Sessions at Perth on 22 January 2003 to allow the respondent's appeal under the Security and Related Activities (Control) Act 1996 (WA) and to grant the respondent a security officer's licence.

2. The Act, amongst other things, provides for the licensing of persons engaged in work relating to property protection, investigation or surveillance and crowd control, and the agents who supply the services of persons to carry out such work. 

3. In effect, the Act is administered by the Commissioner for Police.  Under s 7, the Commissioner is to appoint from officers of the Department such number of licensing officers as are required for the purposes of the Act.  Police officers are not affected by the Act. 

4. Part 3 of the Act provides for the licensing of security activities and, in particular, any person who acts as a "security agent", a "security officer", a "security consultant", or a "security installer".

5. By s 16 of the Act, a person must not act as a security officer except under the authority of a security officer's licence.

6. A "security officer" is defined by s 12(1) of the Act as:

   "(1)    … a person who for remuneration watches, guards or protects any property."

7. By s 19(1), a person who is licensed as a security officer must not act as such unless he or she does so as an employee of a security agent and that agent is specified in the person's licence under s 59. However, subs (1) (which is not relevant in this case) does not apply to a licensed security agent who holds the relevant licence referred to in ss 16, 17 or 18.

8. Part 5 of the Act deals separately with the licensing of crowd control activities. 

9. By s 34, a "crowd control agent" is defined as a "person who supplies the services of crowd controllers". By s 35(1), a "crowd controller" is defined as:

   "(1)… a person who in respect of any licensed premises, place of entertainment, or public or private event or function, as part of his or her regular duties, performs for remuneration any function of — 

   (a)controlling or monitoring the behaviour of persons;

   (b)screening persons seeking entry; or

   (c)removing persons for behavioural reasons,

   or any other prescribed function."

10. A person who is licensed as a crowd controller must not act as such unless he or she does so as an employee of a crowd control agent and that crowd control agent is specified in the person's licence under s 59: see s 38(1) of the Act.

11. Part 7 of the Act deals with licensing procedures. Section 43 provides that a licence can only be issued to a natural person. Section 46 requires an application for the issue of a licence to be made in the approved form, lodged in the prescribed manner and accompanied by the prescribed fee. Section 47 provides for the application for the issue of a licence to be accompanied by relevant material, including an applicant's age and identity, photograph, testimonials from two persons, and evidence that the person has satisfactorily completed any prescribed course of training (except where s 53 applies).

12. Section 52 of the Act provides that a licensing officer is not to issue a licence unless the officer is satisfied -

    "(a)that there is sufficient evidence of the applicant's identity;

    (b)in the case … of a security officer's licence … that the applicant has attained the age of 18 years;

    (c)that the applicant is of good character and is a fit and proper person to hold a licence;

    (d)…

    (e)that during the licence period the applicant will be able to comply with any condition or restriction to which the licence is to be made subject;

    (f)…

    (g)that the applicant has — 

    (i)except where section 53 applies, satisfactorily completed any prescribed course of training; and

    (ii)passed any prescribed test or examination;

    (h)in the case of an application for a security officer's licence with an endorsement under section 24, that the applicant has passed any prescribed medical examination;

    (i)…

    (j)that the application complies with such other requirements as may be prescribed; and

    (k)that there is no other good reason why the licence should not be issued."

13. Section 53 deals with exemptions from s 52(g), and is not relevant in this case.

Background

1. On 27 November 2002, the respondent applied for a security officer's licence pursuant to the Act.  He did this by completing the form of application for a licence under the Act and lodging it with the Western Australian Police Service.  The application clearly showed that the respondent desired a licence to act as a security officer and that he would be employed by the security agent "Maximum Security".  In relation to his personal history, he disclosed that he had been convicted of the offence of common assault.

2. The respondent's application for a security officer's licence was considered by the appellant, as the duly appointed licensing officer. She had regard to the applicant's criminal history and, in particular, a conviction in the Armadale Court of Petty Sessions on 9 July 2002 for common assault, for which he was fined $600. She also had regard to the Statement of Material Facts concerning that conviction. She formed the view that the conduct of the respondent at the time of the incident for which he was convicted demonstrated that he was not a fit and proper person to carry out the duties of a security officer. The appellant says that she formed the view that there would be occasions when the respondent will be required to exercise judgment when dealing with aggressive individuals in the course of his duties. She was not satisfied that he would have the necessary "restraint" to deal with such issues. Additionally, she did not consider that sufficient time had elapsed since his conviction to restore his character. On that basis, she was not satisfied that the respondent was of good character and a fit and proper person to hold a security officer's licence. She therefore rejected the application pursuant to s 52(c) of the Act. By a written Refusal to issue licence dated 28 November 2002, the appellant notified the respondent of her decision.

3. The decision of the appellant to refuse the grant of the application for a security officer's licence did not involve any formal or informal hearing on the part of the appellant.  The decision was made by reference to the application, other supporting documentation and the Statement of Material Facts.  The appellant did not interview the respondent.  There is no requirement under the Act for a licensing officer to do so.

The appeal to the Magistrate under the Act

1. After he received the notification of the refusal of his application, the respondent lodged a notice of appeal at the Court of Petty Sessions in Perth, as he was entitled to do under s 72 of the Act. The appeal came on for hearing before his Worship Mr McIntyre SM on 22 January 2003. At this hearing, the respondent was not represented by a solicitor or counsel. The appellant was represented by Senior Constable Vos of the commercial agents section of the Western Australian Police Service, who was granted leave to appear for the Commissioner of Police.

2. An appeal under s 72 of the Act is a de novo hearing.  As a result, the Magistrate considers the application afresh on the basis of the evidence led at the hearing.  The Magistrate is not bound in any way by the decision or opinions of the licensing officer which is the subject of the appeal.  The Magistrate is obliged to form his or her own opinion about whether the appellant should be approved.

3. At the appeal, it quickly became apparent that the main issue was whether the Court could be satisfied about the good character and fitness of the respondent to hold a security officer's licence.  The respondent gave evidence and was cross‑examined by Senior Constable Vos.  No other person gave evidence, although Senior Constable Vos provided information in response to questions directed to him by the learned Magistrate.  The questions and answers pertained to the manner in which the Act is usually administered and the extent to which a security officer is monitored in his or her work. 

4. The appeal was heard by the learned Magistrate during the morning of 22 January 2003.  His Worship came to the view that the appeal should be upheld and a security officer's licence should be issued.  I will return to the reasons for that decision shortly.  When the Magistrate indicated his view, Senior Constable Vos asked whether he could make a "new submission" and was given permission to do so.  The further submission related to the question whether the respondent if granted the security officer's licence would, in fact, come into contact with members of the public, for example, at entertainment venues.  The learned Magistrate indicated to Senior Constable Vos that the "new submission" was not new and was something he had already dealt with in the reasons he had given.  There was then some discussion between the Magistrate and Senior Constable Vos concerning the appropriate process by which the security officer's licence would actually be issued in light of his Worship's decision.  The Magistrate then asked Senior Constable Vos to identify the usual form of order that is made when an appeal is upheld.  He then adjourned the proceedings until 2.15 pm for this purpose. 

5. At 2.15 pm, the appeal hearing resumed.  The learned Magistrate formally allowed the appeal and directed that a security officer's licence be issued to the respondent.  He informed the respondent that it was for him to make contact with the licensing officer to obtain the licence.  He also asked the respondent to stand up and directed the following statement to him:

   "In a sense, I'm taking a punt on your capacity to mature and show a bit more responsibility than you did on the occasion that we were discussing earlier in the day …

   I have done this principally because of the fact you have got employment available to you - you have been unemployed for a lengthy period of time.  As I say, there is an element of trust in this and you had better not abuse it."

6. I am bound to say that, if these were the whole of the reasons given for the decision to uphold the appeal, I would be concerned that an irrelevant factor had been taken into account by the learned Magistrate in upholding the appeal, in that the fact that employment as a security officer was available to the respondent at the time of the hearing of the appeal is irrelevant to the issue made relevant by s 52(c) of the Act and agitated on the appeal before the Magistrate on behalf of the present appellant.

7. However, having regard to the whole of the proceedings before the learned Magistrate, I do not consider the comments made at 2.15 pm constitute, or were intended to constitute, a complete set of the Magistrate's reasons for decision.

8. Prior to the adjournment, the learned Magistrate provided reasons which considered the evidence before him and explained fully the reasons why, in his opinion, the respondent's appeal should be upheld.  It is these to which primary attention must be directed in this appeal.

The evidence before the Magistrate

1. When the learned Magistrate provided his reasons, he had before him the evidence of the respondent going to his character and fitness to hold a security officer's licence which included evidence about the circumstances in which the respondent's conviction for common assault had been recorded on 9 July 2002. 

2. He also had evidence, led by Senior Constable Vos in cross‑examination, concerning the conduct of the respondent in evading fares while a passenger on public transport in the Perth metropolitan area. 

3. The material facts concerning the conviction for assault, which the respondent admitted, were that on the evening of Friday, 21 June 2002, the respondent and another person attended at the complainant's home in order to confront the complainant's son.  The respondent believed that the complainant's son had assaulted a male person at a party some two weeks earlier.  On arrival at the house, the respondent and the other person commenced banging on the front door.  The complainant opened the door and asked what was wrong.  The respondent stood at the door with a rock in his hand and commenced abusing the complainant, demanding that his son come out and fight him.  The complainant explained that his son was not at the home and lived in Bunbury.  This did not satisfy the respondent, who became more aggressive and, on being told to leave and that the police were being called, punched the complainant once to the mouth, resulting in a cut and bruising to the inside of the complainant's lip.  The complainant closed the screen security door when all this occurred, which action resulted in a number of cuts to his hand.  The respondent left, stating that he would return.  At about 11.30 pm, the respondent and two other persons returned to the complainant's home.  The police arrived at the scene shortly thereafter and observed the respondent sitting nearby at a street corner about 20 metres from the complainant's house.  He was consuming alcohol with two friends.  The respondent was later arrested and charged with common assault.

4. The respondent also admitted that on a number of occasions he had evaded his obligation to pay fares while on public transport.  He explained to the learned Magistrate he had done this at times of unemployment when travelling to interviews with a "job network member" when he did not have money for the train.  He told the learned Magistrate that "nine times out of 10 when I do board the train I do pay my fare".  However, he did not seriously quarrel with the proposition put to him by Senior Constable Vos that he had evaded fares on trains on about 30 occasions during the previous two years.  For this conduct, he had incurred fines which remained outstanding.  He advised the learned Magistrate that, because he had for some time been unemployed, he had not been able to pay the fines. 

5. In cross‑examination, the respondent acknowledged that, as a security officer, he could be employed to provide his services at a function such as a cricket match at the WACA ground in Perth, where many thousands of spectators might be in attendance.  It was put to him that members of the public at such functions, under the influence of alcohol, might well make comments that he would find confronting.  The respondent appeared to accept that such circumstances could arise, even though he was only seeking a security officer's licence and not a crowd controller's licence, which is another form of licence under the Act.  It was then suggested to him that, because he had already shown aggressive behaviour resulting in the conviction for common assault, he was not presently a fit and proper person to act as a security agent.  To that proposition, the respondent indicated that he had undertaken a security officers' instruction course and had learned how to manage conflict.  He acknowledged that his assault of the complainant in June was wrong and he expressed the view that he did not think that his conduct on that one occasion should be held against him.

6. Before considering his decision, the learned Magistrate ascertained from Senior Constable Vos that ordinarily applications for various licences under the Act are accompanied by notification of any record of convictions, together with references and that the licensing officer will put in train any necessary further inquiries concerning the applicant.  His Worship also sought advice concerning the extent to which licensed persons are monitored by the licensing authority.  Senior Constable Vos indicated that, once a licence has been granted, there is little subsequent monitoring of the performance of the duties of the licensed person. 

The Magistrate's reasons for decision

1. The learned Magistrate noted that, under the Act, a person may be licensed as a crowd controller and a security consultant, as well as a security officer.  He considered the question whether the duties of a security officer could, to an extent, overlap with the duties of a crowd controller. 

2. Senior Constable Vos submitted to his Worship that there can be a very fine line at times between the role of a security officer and the role of a crowd controller.  He provided as an example the role a security officer might have at Rottnest over the schoolies period when required to patrol the perimeter of a licensed establishment.  A crowd controller may be inside the licensed establishment performing his or her duties.  Thus, duties of each may well overlap. 

3. The learned Magistrate then, it seems, took further evidence from the respondent as to what he understood the duty of a security officer to be.  The respondent stated that it involved securing premises, buildings and keeping watch on them. 

4. Having regard to this evidence and clarification concerning the role of a security officer, the learned Magistrate found there is a clear distinction between a security officer's function and that of a crowd controller.  With respect, I agree with the learned Magistrate, while acknowledging that there may be circumstances in which a security officer's work may bring him or her into contact with the public, whether in large or small groups.  However, a security officer cannot perform the function, as part of his or her "regular duties", of controlling the behaviour of persons.  The two occupations are, in fact, regulated under different parts of the Act and, apart from the possibility of some overlap, have different primary functions.

5. The learned Magistrate noted that the conviction of the respondent for common assault in July 2002, some four and a half months prior to the making of his application for a security officer's licence, raised the question whether the respondent was "of good character and is a fit and proper person to hold a licence" for the purposes of s 52(c) of the Act. In that respect, the learned Magistrate noted that the material facts relating to that common assault were not disputed by the respondent. He accepted that the respondent was intoxicated when he went to the complainant's house and that the assault that then took place was totally unjustified.

6. His Worship understood the submission then made on behalf of the appellant to be that the conviction for assault, together with the conduct of the respondent whereby he engaged in fare evasion on the public transport system, constituted "dishonest" conduct that meant the respondent was not of good character or a fit and proper person to hold a licence.  However, his Worship appeared to accept that while this evidence showed that the respondent is "immature" and "shows aggression", and may be said to indicate a "lack of regard for the law and the rights of others", that should not be considered "an end of the matter" because "some people do learn from experience".  The learned Magistrate then noted that, apart from the conviction for common assault, the respondent did not have a prior criminal history.  His Worship, rightly in my view, did not consider the respondent's admissions concerning fare evasion in relation to the public transport system to constitute a "prior criminal history".

1. The learned Magistrate further noted that the respondent was a person who had been unemployed for a substantial period of time and that he had been granted "special assistance" according to material in the court in an attempt to make him employable.  His Worship also noted that the respondent had "the prospect of employment".  Indeed, the respondent had disclosed in his application for a licence that he would be employed by Maximum Security and he produced to the Court a letter from Maximum Security stating it was prepared to engage the respondent as a security officer.  The learned Magistrate accepted that the employer knew about the assault conviction. 

2. The learned Magistrate also accepted that the work that the respondent would be employed to do as a security officer would be "more likely to be going around during the night shining torches on locks and things like that rather than being involved in a situation where he is regularly confronted by people who are likely to be aggressive and intoxicated.  So that's a factor that must be given some weight."  I take the "factor" referred to to be the fact that, if the respondent were to work as a security officer, he would not primarily be engaged in the work of a crowd controller and would be unlikely to find himself in a position where he could be taunted by a member of the public in a way that would result in him repeating the conduct that resulted in his conviction for common assault.  It is also, I think, in part, a reference to the fact that there was a prospect of employment and that this factor may also be given some weight.

3. The learned Magistrate noted that the respondent had pleaded guilty to the assault at the earliest opportunity and that, from what he had heard from the respondent in court, the respondent showed real remorse in respect of that conduct and displayed the prospect that he might learn from it.  The learned Magistrate noted that, while the respondent seemed to be "sensible enough", there were elements of "immaturity" associated with his conduct.

4. The learned Magistrate also said he should take into account and give some weight to the fact that, if the respondent is granted a licence, "he operates in a controlled environment.  The authorities are there and can, if they wish, monitor the defendant."  This seems generally to be so, although the main source of monitoring indirectly provided for by the Act, is the supervision of a security officer by the security agent who employs the officer.

5. By reference to these various matters, the learned Magistrate then concluded as follows:

   "So on balance, and it's a very fine balance, I must admit, I'm prepared to - having reviewed the whole of the situation and now having had the opportunity of seeing the defendant in the witness stand, an opportunity which was denied to [the licensing officer], I am satisfied that this may, as I have indicated, be a situation where the defendant is capable of learning from experience and in an odd sort of way, perhaps the fact that he has been involved in an incident which hauled him before the law, might assist him in the process of maturation and gaining a level of responsibility."

6. After providing these reasons and indicating that he would allow the appeal, Senior Constable Vos raised the question of a "new submission", referred to above, whereupon the matter was ultimately adjourned until 2.15 pm when the formal order allowing the appeal was eventually made and the further comments referred to above were also made by the learned Magistrate.  As noted earlier in those further comments, his Worship explained that he was expecting the respondent to "mature and show a bit more responsibility" in the future and that he had allowed the appeal "principally because of the fact that you have got employment available to you - you have been unemployed for a lengthy period of time."

Grounds of appeal

1. On 19 February 2003, Anderson J granted leave to appeal against the Magistrate's decision on the grounds that the learned Magistrate:

   (a)failed to apply the correct test, namely, whether or not the respondent was of good character and a fit and proper person to hold a security officer's licence pursuant to s 52 of the Security and Related Activities (Control) Act 1996;

   (b)erred in law in taking into account irrelevant considerations in making his decision, namely, that:

   (i)the respondent had been unemployed for some time;

   (ii)with the security officer's licence the respondent had the prospect of employment;

   (iii)grant of a licence would assist in the respondent's process of maturation; and

   (c)failed to find on the evidence that he could not be satisfied that the respondent was of good character and a fit and proper person to hold a security officer's licence.

Relevant considerations

1. In determining whether a person is "of good character and is a fit and proper person to hold a licence", a number of factors may become relevant.  In Tavelli v Johnson, unreported; SCt of WA; Library No 960693; 25 November 1996, Wheeler J, at pages 6 ‑ 7, provided guidance concerning the way in which prior convictions should be assessed under the Security and Related Activities (Control) Act 1996 in the following terms:

   "In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156, Dixon CJ and McTiernan and Webb JJ said:

   'The expression 'fit and proper person' is, of course, familiar enough as traditional words when used with reference to offices and perhaps vocations but their very purpose is to give the widest scope for judgment and indeed for rejection ...  .'

   It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.

   With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed.  Convictions will, in my view, generally be regarded as more serious in the statutory context if:

   (1)they occur in the course of or relate to the carrying out of the occupation of inquiry agent.  See New Broadcasting Ltd v Australian Broadcasting Tribunal (1987) 73 ALR 420;

   (2)they are offences of dishonesty, broadly understood.  This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;

   (3)they occur while the person is the holder of a licence under the Act;

   (4)they are otherwise so serious, either in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

   Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

   (1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes.  See Good v Medical Board of WA; unreported; SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited.  The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

   (2)if the offences were committed a substantial time ago.  I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;

   (3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;

   (4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references.  As to character references, I would caution that they will often be of more value if it appears from their terms that  they were made in full knowledge of the fact of the commission of the offences."

2. The question of the meaning of the expression "fit and proper", as it appears in s 47(1)(b) of the Real Estate and Business Agents Act 1978 (WA), was also considered by the Full Court of this Court in The Registrar, Real Estate and Business Agents Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997.  Kennedy J (with whom Parker J agreed) noted what Hale J had said of this expression in Maxwell v Dixon [1965] WAR 167 at 169:

   "It is true that 'fit and proper' must be interpreted in the light of the subject‑matter of the Act in which the expression appears.  It, and the equivalent "suitable", appear in a wide variety of licensing Acts, and it normally comprises the three characteristics of honesty, knowledge and ability:  Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156 ‑ 157. Clearly different qualifications are needed by eg lawyers, transport operators, hotel keepers and land agents, but as is shown by the cases cited in the judgment referred to, it is not necessary to confine oneself to the special provisions of the Act in question in deciding whether a man is fit provided one gives weight only to matters which can fairly be seen to be relevant to the vocation in issue."

3. Kennedy J also referred to what Walters J said in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 at 76:

   "The issue whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision.  But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442)".

4. In Barnett, the respondent was found to have committed eight breaches of trust account rules under the Real Estate and Business Agents Act 1978 as a result of which his licence and triennial certificate as an agent under the Act were cancelled by the Board.  Almost immediately afterwards, the respondent applied to the Board for a certificate of registration as a sales representative.  The Board rejected the application on the ground that the respondent was not a person of good character and repute.  On an appeal under the Act to the District Court, the learned Commissioner upheld the appeal.  However, in the Full Court, the Court unanimously allowed the appeal against the Commissioner's decision.

5. While the Commissioner found that the evidence of the respondent and of his witnesses enabled him to conclude that, upon the balance of probabilities, it was unlikely that the respondent would commit further breaches of the Act, Kennedy J considered the Commissioner failed to make any sufficient analysis of the respondent's conduct which had led to the cancellation of his agent's licence and that he had placed too much weight upon the references and evidence of a number of close friends, some of whose attitudes towards the many breaches of the Act committed by the respondent, his Honour found "surprising".  His Honour noted, at page 8 of his unreported reasons:

   "This was not a case of some isolated instance or instances.  The respondent committed some 150 breaches of the Act over a significant period of time … He knew at the time he withdrew the amounts in question, which totalled $30,344, that he was not entitled to do so, and the fact that he repaid the monies into his trust account after an audit had detected the breach provides little by way of mitigation for his actions.  The 13 instances of delay in banking moneys received by the respondent, ranging from 31 to 104 days in length, quite apart from constituting breaches of the Act, would also suggest that the respondent was not a fit and proper person to hold a certificate of registration as a representative for, as such, he would no doubt be required to accept and to pass on cheques for banking in a trust account.  The respondent has demonstrated scant regard for the statutory provisions of the Act designed for the protection of the public, and to promote the provision of an efficient service to the public - see Boyd v Carah Coaches Pty Ltd (1979) 145 CLR 78 at 98 ‑ 99 per Mason J."

6. Kennedy J also considered it to be a matter of particular concern that the conduct complained of occurred such a brief time before the making of the respondent's application for registration as a sales representative.  He noted what was said by Walters JA in Ex parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357 at 366, albeit in a somewhat different circumstance:

   "One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred.  If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man."

   In the circumstances, Kennedy J could find no sufficient ground for the Commissioner's opinion that the respondent was unlikely to offend. 

7. Kennedy J then added that it appeared that the Commissioner in arriving at his decision had regard to his view that the respondent had paid the penalty appropriate to the breaches of the Act by the previous cancellation of his real estate agent's licence.  However, his Honour considered this to be an irrelevant consideration in determining whether he was satisfied that the respondent was a person who was fit and proper.  His Honour stated, at page 9, that:

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

Whether the Magistrate erred in law

1. In determining whether or not the exercise of the discretion exercised by the learned Magistrate should be disturbed on appeal, it is appropriate to have regard to the circumstances in which an appeal court will so interfere.  In House v The King (1936) 55 CLR 499 at 505, Dixon CJ and Evatt and McTiernan JJ made it plain that, before a Court will interfere with judicial discretion, it must be established that some error has been made in the exercise of discretion. Examples of such errors are acting upon a wrong principle, taking into account extraneous or irrelevant matters, mistaking the facts, failing to take into account a material consideration or giving inadequate weight to a relevant consideration. Once such an error has been established, the appellate court may exercise its own discretion.

2. As I indicated above, if in truth and substance the learned Magistrate determined that, notwithstanding evidence that suggested the respondent was unfit to hold a security officer's licence, the appeal should be allowed because it would, in effect, be unfair to prevent the respondent from taking up an offer of employment as a security officer, his decision would have involved the taking into account of a plainly irrelevant consideration.  The appellant submits this is exactly what the Magistrate decided and he failed to address the respondent's inability to demonstrate his fitness to hold a licence.

3. In this regard, the appellant submits that the conviction of the respondent for common assault in July 2002, and his earlier conduct over a period of two years or so in engaging in the conduct on multiple occasions of fare evasion on public transport, displayed both a lack of honesty, knowledge and ability in relation to the work of a security officer, and also an insufficiency in the moral integrity and rectitude of character that is required to permit him to be safely accredited to the public without further inquiry as a person to be entrusted with the sort of work that the licence entails. 

4. The respondent, on the other hand, submits that the learned Magistrate did not allow the appeal simply to permit the respondent to take up an offer of employment as a security officer.  Rather, the respondent submits, the Magistrate carefully considered whether the earlier conviction for assault and other conduct concerning fare evasion prevented the respondent from satisfying the Court as to his character and fitness to do the work of a security officer and that he made a decision that was open to him in his discretion. 

5. Having regard to the considerations listed by Wheeler J in Tavelli v Johnson (supra) as being relevant to the issue of character and fitness, I do not consider the prior conviction of the respondent for common assault and his fare evasion behaviour necessarily meant the Magistrate was bound to refuse the application.  This is because:

   (1)the assault did not occur in the course of or obviously relate to the carrying out of the occupation of a security officer;

   (2)it did not, even with the other evidence going to fare evasion, constitute an offence of dishonesty broadly understood;

   (3)it did not occur at the time the respondent was the holder of a security officer's licence under the Act. 

6. As to whether or not his prior misconduct was otherwise so serious as to represent a course of disregard for the law, or to reflect particularly adversely on his character so as to disqualify the respondent from being licensed as a security officer is, in a case such as the present, the nub of the issue.  It is one about which reasonable minds may differ and calls for the exercise of judgment.  I do not consider there is a uniquely right or wrong answer to that question in the circumstances of this case.  The Magistrate answered it in favour of the respondent.  I consider that, as a matter of law, it was open to the learned Magistrate to form the view that the respondent's misconduct was not so serious as to warrant refusal of the security officer's licence. 

7. In this case, the Magistrate obviously regarded the age of the respondent, the circumstances of the assault, the fact the respondent had been unemployed for some time, the time that had passed since the conviction and the genuine remorse of the respondent for his actions and his desire to improve his situation.  I think these are matters that may properly influence some decision‑makers to decide that, on all the facts of the case, an applicant is of sufficiently good character and fitness to hold a security officer's licence.

8. The Magistrate also seems to have formed the view that the offence was not so directly related to the carrying out of the work of a security officer as to prevent him finding that the factor set out in s 52(c) was satisfied. On the evidence before him, I consider this view was open. I am not satisfied that the Magistrate committed any error of law in so deciding.

9. The Magistrate also considered it relevant that the respondent could be monitored by the authorities in his work as a security officer.  While the evidence suggests the Commissioner of Police does not provide active monitoring, the respondent clearly is subject to the supervision of the security agent who employs him.  Under the Act, he cannot perform his job as an independent contractor.  Like the Magistrate, I think this may be considered a factor relevant to an assessment of the significance a conviction for common assault should have to the question whether an applicant is a fit and proper person to hold a security officer's licence.

Conclusion

1. In the result, I am not satisfied that the learned Magistrate committed any error of law in upholding the respondent's appeal against the appellant's decision refusing him a security officer's licence. While the Magistrate plainly hoped the respondent would mature as a result of his experiences and would benefit from being able to take up employment as a security officer, I do not consider the Magistrate simply ignored the requirement in s 52(c) of the Act that he should be satisfied the respondent is "of good character and a fit and proper person to hold the licence". The issue before the Magistrate required him to balance factors for or against the view that the respondent satisfied this requirement. I consider it was, as a matter of law, open to him to make the decision that he did. It is not to the point that this Court might have made a different decision, or that the licensing officer in fact formed a different view. As Dixon CJ and McTiernan and Webb JJ noted in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, the type of expression employed in s 52(c) of the Act has the purpose of giving a decision‑maker "the widest scope for judgment and indeed for rejection". It also provides a wide scope for acceptance of an application.

2. For these reasons, I dismiss the appeal.