Flood v Commissioner of Police, NSW Police Force
[2011] NSWADT 88
•04 May 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Flood v Commissioner of Police, NSW Police Force [2011] NSWADT 88 Hearing dates: 3 November 2010 Decision date: 04 May 2011 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: 1. The decision under review is set aside
2. The matter is remitted for reconsideration by the Commissioner with the recommendation that the licence be reinstated if the Commissioner is satisfied that the Applicant's qualifications and certification are current and meet the legislative requirements for the grant of the licence.
Catchwords: Security Industry Act - security industry licence - revocation of licence Legislation Cited: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997Cases Cited: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Director of Public Prosecutions v Smith (1991) 1 VR 63
Haining v Commissioner of Police [1999] NSWADT 6.
O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130Category: Principal judgment Parties: David Allan Flood (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: M Manwaring (Applicant)
C Zoppo (Respondent)
File Number(s): 103003
Judgment
The Applicant worked as a security officer at various licensed premises in Orange N.S.W. He was the holder of a Class 1 ABC 2ABD licence issued under the Security Industry Act 1997 ("the Act"). He was issued with his initial security licence in June 1999 and a Class 1ABC 2ABD security licence in August 2007. That licence was due to expire in August 2012.
Following an incident ("the incident") between the Applicant and a patron of The Standard Hotel ("the hotel") in Orange in the early morning of 7 December 2007 the Applicant was charged with "Manslaughter" and "Recklessly cause grievous bodily harm". It was alleged that the Applicant caused the death of the patron, Michael Edward Bouffler or otherwise recklessly occasioned grievous bodily harm to him.
The Commissioner revoked the Applicant's licence on the grounds that it was not in the public interest that he continues to hold a security licence.
In November 2009 the Applicant was found not guilty with respect to each of the charges brought against him.
Following the jury's verdicts the Applicant sought an internal review of the decision to revoke his security licence. The Commissioner's delegate affirmed the decision to revoke the Applicant's licence. The Applicant filed an application with the Tribunal seeking external review of the Commissioner's decision.
The Applicable Law
A Class 1ABC2ABD security licence authorises the holder to perform the following security activities:
Class 1A - Unarmed Guard - Authorises the licensee to patrol, protect, watch or guard any property while unarmed (and whether while static or mobile, includes control room operations).
Class 1B - Bodyguard - Authorises the licensee to act as a bodyguard or provide close personal protection or to act in a similar capacity.
Class 1C - Crowd Controller - Authorises the licensee to act as a crowd controller, venue controller or bouncer or to act in a similar capacity.
Class 2A - Security Consultant - Authorises the licensee to act as a consultant by identifying and analysing security risks and providing solutions and management strategies to minimise those security risks.
Class 26 - Security Seller - Authorises the licensee to sell, and provide advice in relation to security equipment and to sell the services of persons to carry on any security activities.
Class 2D - Security Trainer - Authorises the licensee to provide training, assessment or instruction in relation to any security activity.
Section 26 of the Act provides both mandatory and discretionary grounds for the Commissioner to revoke a licence. Section 26(1A) provides that the Commissioner must revoke a licence when the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
Section 15(1) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the Applicant is not a fit and proper person to hold the class of licence sought by the Applicant. Section 15 (3) provides that the Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.
Applicant's Qualifications
The Applicant holds a Certificate III in Security Operations and has demonstrated competence in all of the necessary competencies including:
(a) Provide First Aid: and
(b) Manage Conflict through negotiation1.
The Applicant also holds:
(a) a Senior First Aid Certificate;
(b) the following awards from the Royal Life Saving Society
i) Basic Resuscitation Award;
ii) Resuscitation Award; and
iii) Instructor Resuscitation Award.
He was authorised by the Royal Life Saving Society of Australia to provide training in First Aid and to act as an examiner for Resuscitation.
Between June 2006 and March 2008 the Applicant was employed by the TAFE Western Institute at Orange as a teacher of the Certificate I in Security Operations (Pre-Licence). In that capacity he has provided training and assessed the competency of prospective security officers undertaking the Pre-Licence training course that is approved by the Commissioner.
The Applicant is a highly trained and accomplished martial artist. He was a registered martial arts instructor with the Bob Jones Martial Arts Organisation until 2006. His achievements with Bob Jones Martial Arts organisation include:
(a) Second degree black belt Nidan - 1 November 1996;
(b) BJC Muay Thai 4th Degree black belt (Coach) - 1 September 2005;
(c) Fighting Fit - Freestyle martial Arts 2nd Degree (Teacher) - 1 September 2005.
The Applicant had been employed to work at the hotel from about 2007. He had been assaulted by patrons at the hotel previously during the course of his employment.
The Commissioner's case
It is not in dispute that on 6 December 2007 the Applicant was on duty as the supervising security officer at the hotel between the hours of 10 pm and 3 am the following morning. The hotel has CCTV cameras that have recorded the incident. A copy of the CCTV footage was in evidence at the hearing.
The Commissioner relies on evidence presented at the Applicant's trial. That evidence includes a summary of the events recorded by the CCTV that was prepared by Detective Senior Constable Steve Pack, the main investigator of the incident. Detective Senior Constable Pack attended the hearing and was subjected to cross-examination. His summary includes:
1.37 am: BOUFFLER escorted out of the hotel by Security staff DAVIS and MURRAY.
1.38 am: Two young males leave the Hotel while BOUFFLER appears to be arguing with FLOOD. DAVIS and MURRAY also present.
1.38.52: BOUFFLER appears to spit at FLOOD.
1.38.53: FLOOD strikes BOUFFLER.
1.3 8.54: BOUFFLER falls heavily to the pavement and appears not to move at all.
1.39.00: FLOOD with the assistance of DAVIS and MURRAY place BOUFFLER in a recovery position.
1.44 am: DAVIS, MURRAY, KOSTITCH and FLOOD lift BOUFFLER off the ground and carry, drag him from the hotel towards the comer of Byng Street, away from Hotel. Sit him down against a wooden fence alongside the garden bed of the car park to K-Mart.
1.46.30: DAVIS and MURRAY to front door of the hotel. FLOOD walks up to BOUFFLER' location. Appears to be kicking the bottom of the feet of BOUFFLER in an attempt to rouse him.
1.49.13: FLOOD walks away from the Hotel back to BOUFFLER' location. Appears to kick at feet of BOUFFLER.
1.50.03: FLOOD returns to Hotel.
1.51.02: FLOOD walks away from the Hotel back to BOUFFLER' location. Appears to kick at the feet of BOUFFLER.
1.52.23: FLOOD returns to Hotel.
1.54.45: FLOOD walks away from the Hotel back to BOUFFLER' location. Appears to kick at the feet of BOUFFLER.
1.58.06: FLOOD returns to Hotel.
2.00.30: FLOOD exits front door of Hotel carrying a white bucket which appears to be heavy.
2.01.00: FLOOD walks up to the location of BOUFFLER. Can be seen throwing water over BOUFFLER.
2.01.30: FLOOD returns with empty bucket.
2.06.40: FLOOD walks away from the Hotel back to BOUFFLER' location. Appears to be kicking feet of BOUFFLER.
2.24.00: FLOOD and other security officer walk up towards BOUFFLER and turn down and walk around to the side of the hotel.
2.24.50: FLOOD and other security officer walk up to the location of BOUFFLER. Appears that BOUFFLER has left location.
2.25.31: Police truck (Orange 16?) arrives and stops outside the front door of the hotel. FLOOD walks over and leans in the passenger door and speaks with Police for a short period of time.
3.01.05: FLOOD goes inside the Hotel.
3.02.30: FLOOD leaves with two females, walks to the other side of the road and towards Byng Street.
3.24.57: BOUFFLER seen to stumble to the front door of the hotel.
3.25.20: BOUFFLER seen to stumble away and down laneway next to the hotel.
3.26.20: Female stops taxi a short distance from the hotel and speaks with driver for a short. Runs over to garden bed area.
3.27.12: BOUFFLER seen to stagger towards the taxi and get into the front passenger side and close door. Taxi leaves by reversing up Anson Street, doing a u-turn and heading towards Byng Street.
I note that the Applicant's solicitor, Mr Manwaring, contends that it is not clear from the video footage that that the Applicant was kicking at Mr Bouffler's feet nor does it show that the Applicant threw water over Mr Bouffler.
It is not in dispute that the Applicant told the Court that he was aware that Mr Bouffler was angry and that he stepped in between Mr Bouffler and the two security officers in order to settle Mr Bouffler down and separate him from the two officers who had escorted him from the Hotel. Mr Bouffler spat into the Applicant's face. The Applicant then struck Mr Bouffler with his palm to the left hand side of Mr Bouffler's face. Mr Bouffler was knocked backwards and his skull struck the concrete footpath.
The Commissioner argues that the strike occasioned to Mr Bouffler was excessive and beyond what was reasonable in the circumstances. The Commissioner concedes that a person spitting in the face of another is offensive, but argues that it does not justify or excuse a strike of the magnitude of the blow from the Applicant.
The Commissioner contends that the evidence before the Tribunal establishes that the Applicant was concerned about the potential harm that he had caused Mr Bouffler immediately following the strike however he did not offer or provide any medical care to Mr Bouffler and instead removed Mr Bouffler away from the Hotel.
The Applicant and other security officers walked up to Mr Bouffler a number of times over the course of the following one and a half hours but did not offer any meaningful assistance. The Commissioner contends that he was observed pouring a bucket of water over Mr Bouffler but he did not call an ambulance. He wanted to get Mr Bouffler away from the Hotel and have him sleep it off.
The Commissioner argues that the Applicant was responsible for striking Mr Bouffler and that Mr Bouffler sustained an injury of some sort as a result of the strike. In light of his martial arts qualifications and experience his conduct was excessive. In the circumstances the Applicant should have rendered medical assistance. At the very least he should have called an ambulance and not just moved Mr Bouffler away from the Hotel. He Applicant did not report the incident to the police who visited the Hotel on their routine patrol but told them that it had been a quiet night without any dramas.
The Commissioner contends that in the circumstances the Applicant's conduct fell significantly short of what is expected of a licensed security officer.
The Applicant's case
The Applicant relies on the evidence that he gave in the District Court proceedings in support of his application in this matter.
His evidence is that during the course of his employment he had been assaulted by patrons at the hotel . On the night of the incident two security officers had escorted Mr Bouffler from the premises. The Applicant's evidence is that Mr Bouffler was angry and he was swearing at the two security officers. The Applicant stepped in between Mr Bouffler and the two security officers and attempted to calm Mr Bouffler. He asked Mr Bouffler if he wanted a taxi and thereafter attempted to move Mr Bouffler away from the hotel entrance.
The Applicant's evidence in regard to the events that followed is that Mr Bouffler became verbally aggressive and threatening towards him. Without warning, Mr Bouffler turned and lunged at the Applicant spitting at the same time. Mr Bouffler's spit struck the Applicant in the face. The Applicant closed his eyes but before doing so he saw Mr Bouffler's head coming towards him. He thought that he was going to be head butted. He raised his right hand and struck Mr Bouffler with an open palm. The Applicant is not sure where he struck Mr Bouffler as his eyes were closed. Mr Bouffler fell to the ground.
The Applicant stayed with Mr Bouffler but Mr Bouffler told the Applicant to "fuck off. The Applicant's evidence is that he did not see any injury to Mr Bouffler and that he, together with the other two security officers assisted Mr Bouffler further north along Anson Street. He was left against a post and rail fence approximately 20 or 30 metres north of the entrance to the hotel.
The Applicant's evidence is that Mr Bouffler had no visible sign of injury. He offered to call a taxi but Mr Bouffler refused that offer. From time to time the Applicant checked on Mr Bouffler and he refused assistance.
The Applicant's version of events is supported by the other two security officers and by CCTV footage.
The Applicant expressed regret for the tragedy but maintains that he does not know that he caused it.
Mr Manwaring submits that it cannot be reasonably said that the Applicant did not act in a manner that the public would expect of a security officer.
Mr Bouffler was drunk, aggressive and threatening and weighed approximately 120 kilos. The Applicant sought to calmly lead Mr Bouffler away from the Hotel and offered him a taxi home. Mr Bouffler refused, again threatened the Applicant and attacked him by spitting in his face and attempting to head butt him. The Applicant, with an open palm, defended himself by striking Mr Bouffler once. Mr Bouffler fell to the ground, there was no visible sign of injury.
He submits that there is no evidence that can be relied upon to suggest that the Applicant ought to have realised that there was a serious injury to Mr Bouffler. There is no evidence that can be reasonably relied on to find that the injury that caused Mr Bouffler's death occurred when he fell to the ground following the Applicant striking him.
He argues that the evidence clearly indicates that from the moment Mr Bouffler was escorted from the Hotel the Applicant's conduct was exemplary. The Applicant struck Mr Bouffler in circumstances where the Applicant believed he was under threat of seriously being hurt. He used a single open hand movement to repel that threat. Mr Bouffler taken approximately 20 or 30 metres from the entrance to the hotel and left in a reasonably well lit area. Mr Bouffler's behaviour was consistent with that of someone who was drunk. He had no visible sign of injury and he was left to sleep off his drunkenness.
He submits that even if in hindsight it is found that the Applicant should have called an ambulance and notified Police, he has learned form the experience.
Mr Manwaring submits that there is nothing to suggest that the Applicant is not a fit and proper person to be the holder of a security licence or that it is not in the public interest for him to do so.
Discussion
The circumstances of this matter are clearly tragic for all concerned. The issue for determination by the Tribunal is whether the Applicant should be permitted to be the holder of a security licence. The Commissioner contends that it is not in the public interest for him to do so.
The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated in regard to a decision to refuse to issue a security industry licence:
"25 The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."
'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith (1991) 1 VR 63. The purpose of a reference in legislation to 'the public interest' is 'to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith .
The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6. The interests of the whole community must be considered.
It is clear that the Applicant considers that his conduct in the early morning of 7 December 2007 was appropriate in the circumstances. The Commissioner considers that this was not the case. I agree that in hindsight it would have been prudent to have informed the Police of the incident and to have called an ambulance. However, there is no evidence to suggest that the tragedy would have been averted had he done so.
As a security guard, the Applicant has been trained to deal with intoxicated and aggressive patrons. His martial arts qualifications and experience places him in a category of security guards who should have been more aware than most of the degree of force necessary to subdue an aggressive patron. His training and experience should have ensured that he responded differently. I agree that in the circumstances the Applicant acted in manner that was excessive.
However, subject to what I have said above about what would have been prudent, I do not agree that the Applicant acted unreasonably towards Mr Bouffler in circumstances where Mr Bouffler's behaviour was consistent with that of someone who was drunk. He had no visible sign of injury and he was left to sleep off his drunkenness.
I am satisfied that at the time the decision to revoke the Applicant's licence was taken it was the correct decision. However, the Tribunal determines matters on the basis of the material that is before it rather than what was available to the Commissioner at the time of the original determination.
In light of the time that has passed since the incident, the lessons that the Applicant has learned as a result of the incident and the fact that the Applicant has had an otherwise unblemished record before and since the incident, I do not agree with the Commissioner that it is not in the public interest that the Applicant hold a security licence. In my view, the correct and preferable decision is to grant the licence provided that the Applicant's qualifications and certification are current. I am unaware with respect to the currency of those qualifications and certificates and accordingly I propose that the matter be remitted to allow the Commissioner to undertake appropriate checks before the licence is granted.
Discussion
1. The decision under review is set aside
2. The matter is remitted for reconsideration by the Commissioner with the recommendation that the licence be reinstated if the Commissioner is satisfied that the Applicant's qualifications and certification are current and meet the legislative requirements for the grant of the licence.
**********
I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar
Decision last updated: 04 May 2011
0
4
2