Gurney v Chief Executive, Department of Justice and Attorney-General
[2009] QMC 22
•27 August 2009
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Gurney v Chief Executive, Department of Justice and Attorney-General [2009] QMC 22
PARTIES:
WAYNE GURNEY
(appellant)
v
CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(respondent)
FILE NO/S:
MAG201427/08(8)
DIVISION:
Magistrates Courts
PROCEEDING:
Appeal against security licence decision of Chief Executive
ORIGINATING COURT:
Magistrates Court at Southport
DELIVERED ON:
27 August 2009
DELIVERED AT:
Southport
HEARING DATE:
19 May 2009, 18 June 2009
MAGISTRATE:
Costanzo JJ
ORDER:
The decision appealed against is confirmed.
CATCHWORDS:
ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES - rehearing — nature of a rehearing versus a hearing de novo — refusal to renew security provider’s licence — who is an appropriate person to hold licence — disqualifying offences — convictions recorded and not recorded
Criminal Code, s 339
Criminal Law (Rehabilitation of Offenders) Act 1986, section 6
Justices Act 1886, s 222
Security Providers Act 1993, s 11, s 12, s 12B, s 12C, s 14, s 21, s 26, s 27, s 29, s 30, sch 1, sch 2Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Clerihan v Registrar of Motor Vehicle Dealers (1994) 122 ACTR 25
Kempe v Bailey [2003] ACTSC 13
Liseo v Queensland Police Service [2006] QDC 496
Parsons v Raby [2007] QCA 98
R v Davis (1947) 75 CLR 409,
Reid v Queensland Police Service [2007] QDC 021
Stevenson v Yasso [2006] QCA 40
Taylor v Lanyon [2006] QDC 321
Warren v Coombes (1979) 142 CLR 531
R v GV [2006] QCA 394
R v Mirza; ex parte AG (Qld) [2008] QCA 23COUNSEL:
M McMillan (solicitor) for appellant
LE Ware for respondent
SOLICITORS:
The appeal
This is an appeal against the decision of the Chief Executive made on 26 August 2008, refusing to renew the respondent’s Security Officer’s Licence.
The background facts
The reason given by the for the refusal was that “you are not an appropriate person to hold a licence on the basis that you have an unrecorded finding of guilt in relation to an offence of assault occasioning bodily harm on 16 March 2007 at the Rockhampton Magistrates Court.”
A Statement of Reasons was provided at that time to the Appellant.
Before I embark upon an analysis of the facts and submissions, I will state the law which is to rule and guide my decision making. I do this at the outset because under s 29(2) of the Security Provider’s Act 1993 (SPA):
(2) An appeal is to be by way of rehearing unaffected by the chief executive’s decision.
The legislation
The chief executive complied with section 14(4) of the SPA in that upon deciding to refuse to renew the licence the chief executive did give the applicant a written notice stating—
(a) the decision; and
(b) the reasons for the decision; and
(c) that the applicant may appeal against the decision within 28 days to a Magistrates Court.
The decision was made under s 21(1)(f) of the SPA, which relevantly provides:
21 Grounds for suspension, cancellation or refusal to renew
(1) Each of the following is a ground for the suspension or cancellation of a licence or the refusal to renew a licence—
…
(f) the licensee, or another person required to be an appropriate person for the grant of the licence, is not, or is no longer, an appropriate person.
(2) The question whether a person is, or continues to be, an appropriate person is decided in the same way as the question whether the person would be an appropriate person for the grant of the licence. …
Section 11(4)(e) of the SPA provides that in deciding whether a person is an appropriate person to hold a licence, the chief executive must consider, amongst other things, an unrecorded finding of guilt made against the person in relation to a relevant offence which has not been quashed or set aside by a court.
Under subsection 11(5):
(5) A person is not an appropriate person to hold a licence if the person, within 10 years of applying for a licence, has been convicted of a disqualifying offence.
In the dictionary of the SPA, disqualifying offence means an offence against (amongst other things) a provision of the Criminal Code mentioned in schedule 1.
Schedule 1 (Disqualifying offence provisions under the Criminal Code) lists Chapter 30 (Assaults). Section 339 (Assaults occasioning bodily harm) is in chapter 30.
Also, under subsection 11(6), as at the time the decision was made by the chief executive, a relevant offence was defined to mean a disqualifying offence, or an offence that would be a disqualifying offence if committed in Queensland, committed by a person when the person was an adult and within the previous 5 years.
The definition has since moved to the Dictionary in schedule 2 and now reads:
relevant offence means a disqualifying offence committed by a person when the person was an adult and within the previous 5 years.
The way the question ‘whether the person would be an appropriate person for the grant of the licence’ must be decided is the way stated in sections 12 and 12 C, which relevantly provide as follows:
12 Inquiries about person’s appropriateness to hold licence
(1) The chief executive may make inquiries about a person to assist in deciding whether the person—
(a) is an appropriate person for the grant of the licence; or
(b) continues to be an appropriate person.
(2) The chief executive may ask the Commissioner to give the chief executive the following written information about the person—
(a) a report about the person’s criminal history;
(b) a brief description of the nature of the offence giving rise to a conviction or charge mentioned in the person’s criminal history. …
12C Use of information obtained under s 12, 12A or 12B
(1) This section applies to the chief executive in considering
information about a person obtained under section 12, …
(2) Investigative information or information about a conviction of a person may be used only for making a decision as to whether the person is, or continues to be, an appropriate person for the grant of a licence.
…
(5) When making a decision mentioned in subsection (2), the chief executive must have regard to the following matters relating to information about the commission of an offence by the person—
(a) when the offence was committed;
(b) the nature of the offence and its relevance to the person carrying out the functions of a security provider under the licence;
(c) anything else the chief executive considers relevant to the decision. … .
In Schedule 2, Dictionary of the SPA:
conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.
criminal history, of a person, means—
(a) despite the Criminal Law (Rehabilitation of Offenders) Act 1986, section 6, every conviction of the person for an offence, in Queensland or elsewhere, whether before or after the commencement of this definition; and
(b) every charge made against the person for an offence, in Queensland or elsewhere, whether before or after the commencement of this definition.
The appeal is brought pursuant to s 26(2)(d) of the SPA. There is no dispute the appeal is brought within the jurisdiction of the Southport Magistrates Court as required under s 26(3) of the SPA.
The appeal was started in accordance with section 27 of the SPA by filing a written notice with the Clerk of the Court and a notice was served on the chief executive. The appeal notice was lodged in time by the Appellant in his own hand (before he had a legal representative) and stated a ground of appeal as required by s 27(4). However, the notice was handcrafted on a blank Quotation document and stated one ground based on the Appellant having invested some $2500 setting up a security company and he needed his licence renewed “to make a go of my company.”
On the first day of the hearing I allowed the ground to be substituted with four grounds and allowed an adjournment and I issued four directions so that each party could file and serve, prior to the second hearing date, outlines of submissions, affidavits of any further witnesses to be called and a list of any witnesses required for cross-examination.
If I allow this appeal, my powers as to the types of orders I may make, are limited to those listed in s 30:
30 Powers of Court on appeal
(1) In deciding an appeal, the Court may—
(a) confirm the decision appealed against; or
(b) set aside the decision and substitute another decision; or
(c) set aside the decision and return the matter to the chief executive with directions that the Court considers appropriate.
(2) In substituting another decision, the Court has the same powers as the chief executive.
Example—
The Court may decide that an unsuccessful applicant for a licence be granted the licence either unconditionally or on particular conditions.
(3) If the Court substitutes another decision, the substituted decision is taken, for the purposes of this Act, to be the chief executive’s decision.
(emphasis added)
The procedures I had to follow before those powers could be enlivened were governed by section 29 of the SPA:
29 Hearing procedures
(1) The procedure for an appeal to a Magistrates Court under this Act is to be in accordance with the Uniform Civil Procedure Rules 1999 or, in the absence of relevant rules, directions of the Court.
(2) An appeal is to be by way of rehearing unaffected by the chief executive’s decision.
(3) In deciding an appeal, the Court is not bound by the rules of evidence and must observe natural justice.
The Grounds of Appeal
As stated above, on the first day of the hearing I allowed the appeal ground stated in the notice of appeal to be substituted with four grounds.
The four new grounds of appeal were amended to read:
“I base my appeal on:
1. The chief executive having taken into account matters not proved or admitted i.e. a QP9, portions of which were not put before the sentencing magistrate in the Rockhampton Magistrates Court on 16 March 2007.
2. The chief executive having failed to give adequate weight to the non-recording of the conviction for assault occasioning bodily harm on 16 March 2007.
3. The chief executive took into account irrelevant considerations i.e. a criminal history which contains an entry of Rape (as found in the affidavit of Peter Rashford sworn on 9 April 2009) for which the Appellant was not convicted nor dealt with to accrue guilt of any sort.
4. The chief executive failed to properly exercise his discretion.
It is not now relevant to repeat all the reasons I gave for allowing the amendment of the grounds of appeal. Those reasons are recorded and a transcription can be obtained by anyone finding that necessary. However, it is necessary to re-state one of the reasons.
That reason was to do with the difference between a ‘hearing de novo’ and a ‘rehearing’.
In a ‘hearing de novo’ an appeal or application could be considered afresh without any regard at all to the decision appealed from, nor to the reasons given for that decision.
In a ‘rehearing’ the Appellant must first satisfy the appellate court that the decision maker was in error. Grounds of Appeal (1) to (3) each rely on proving some error on the part of the decision maker which, if proved, could enliven the appellate Court’s discretions and powers available under s 30.
The initial difficulty was the use of the words following the word “rehearing” in s 29, namely: “unaffected by the chief executive’s decision.”
If this appeal was to be conducted as a rehearing with the usual meaning given to that concept then the additional words would be unnecessary surplus.
In Kempe v Bailey [2003] ACTSC 13 at [17] Crispin J held that :
[17] An appeal from a decision of a Magistrate is appeal by way of re-hearing and if the Court considers that there is a reasonable doubt about the Appellant's guilt then the appeal must be allowed. (See Patrick John Sikorski v Peter Gritsh (unreported), [2002] ACTSC 55 Miles CJ, 6 June 2002). However, the appeal does not involve a hearing de novo and a decision can be set aside only if the Appellant court is satisfied that the Magistrate's decision is wrong.
In Taylor v Lanyon [2006] QDC 321, which involved an appeal under s 222 of the Justice’s Act 1888, at [71], [72] His Honour Rackerman DCJ held:
[71] Appeals to this court, pursuant to s 222 of the Justices Act proceed by way of rehearing. Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error[1]. As has been observed on other occasions however, it is necessary to have regard to the particular provisions which govern the exercise of the appellate jurisdiction in each case.
[1] See Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194.
[72] I am mindful that, in the case of appeals pursuant to s 222, the court has the power to give leave to adduce fresh, additional or substituted evidence (s 223(2)) - as it has in this case - and also the power not only to confirm, set aside or vary the appealed order, but also to “make any other order in the matter the Judge considers just” (s 225(1))[2]. Even if it were assumed that this court’s powers, in this respect, are not limited to the correction of error, I would be reluctant to depart from a proper and adequately reasoned exercise of discretion at first instance. As Kirby J said in Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (supra):
[2] Compare re Coldham and others ex parte Brideson (No 2) (1990) 170 CLR 267 at 272 and Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (supra) per Gleeson CJ, Gaudron and Hayne JJ at paras 14-15.
“The range and variety of decisions that may, with leave, be subject of an appeal under the Act is such as to suggest that generalities will be dangerous. So different are the various decisions amenable to appeal that it will only be of limited help to catalogue the process within the broad class of an “appeal in the strict sense” and “appeal by way of rehearing”, as if, without more, such classification dictates the way in which the particular appeal must be approached. True, such broad categories will offer a limited measure of guidance. But it remains for the appellate body in every case to discharge its functions in a way apt for all of the statutory provisions that are brought into play.
It is necessary to make this point because some of the discussion of the nature of the appeal to the Full Bench of the Commission, both within the Commission and in the reasons of the Full Court, might, on a superficial reading, be taken to suggest that there is a particular classification of appeals generally, being “appeals against discretionary decisions”, which is in some way to be distinguished from “appeals by way of rehearing”. This is a false dichotomy. Many appeals by way of rehearing involve appeals from discretionary decisions. The rehearing identifies the materials upon which the appellate body acts. It will have relevance for any supervening changes in the facts or in the applicable law.
On the other hand, the character of the decision under appeal (as discretionary, interlocutory, final or otherwise) will govern the approach to be taken by the appellate body in discharging its function. In the case of discretionary decisions, that approach in the case of an appeal is one of caution and restraint. This is because of the primary assignment of decision making to a specific repository of the power and the fact that minds can so readily differ on most discretionary or similar questions. It is rare that there will be on one admissible point of view. Disputation and litigation are expensive, distracting and time consuming. Therefore, the law, for policy reasons, recognises these features of discretionary decisions. Except in appeals involving a complete hearing de novo, all other appeals will approach with restraint the reconsideration of discretionary decisions which are based on the same material that was before the decision maker.”
See also Stevenson v Yasso [2006] QCA 40 at [36] where the President described appeals under s 222 of the Justices Act 1886 (Qld) by way of re-hearing as requiring the appeal court to make its “own determination of the issues on the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view.” This passage was followed in Parsons v Raby [2007] QCA 98 at [23].
As the majority of the High Court said in Warren v Coombes (1979) 142 CLR 531 at 551:
“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”
Therefore, as I said in part of my reasons for granting the application to substitute the grounds of appeal, the words following the word “rehearing” in section 29, namely: “unaffected by the chief executive’s decision”, taken together with the above line of authority, must mean that I can have regard to the chief executive’s decision to see if he or she has made an error, but I am not to be ultimately affected by the reasoning or decision.
The parties agreed I should proceed on this basis.
Mr McMillan also referred to Reid v Queensland Police Service [2007] QDC 021 at [8]:
“In respect of appeals from Justices the principle to be followed by an appellate tribunal would seem to be encapsulated in the statement by Andrews SPJ (as he then was) in Murphy v Porter, ex parte Murphy (1985) 1 Qd R 59 at 67 where he said after a comprehensive review of a number of authorities[3]:
“I am of the view that where findings are so expressed as to demonstrate mistake in the understanding of evidence or where findings as expressed have demonstrated a misunderstanding of the law applicable then this court may interfere with the decision.”
[3] Including Smith v Smith, ex parte Smith [1950] Qd R 113 at 120; R v Robertson (1980) 2 A Crim R 369; and R v Free [1983] 2 Qd R 183. See also the comments by Thomas J at pp 79 and 81 of the judgment, and in particular the dicta of Gibbs J (as he then was) in Uranerz (Aust) Pty Ltd v Hale (1980) 54 ALJR 378, 381.
Ground 1.
Did the chief executive take into account matters not proved or admitted i.e. a QP9, portions of which were not put before the sentencing magistrate in the Rockhampton Magistrates Court on 16 March 2007?
It was not in dispute that the Appellant had an unrecorded conviction for assault occasioning bodily harm in the Rockhampton Magistrates Court on 16 March 2007. The Appellant’s unrecorded conviction was a conviction to which the chief executive was entitled to have regard under section 12C for making a decision as to whether the Appellant was or, or continued to be, an appropriate person for the grant of a licence. The chief executive was entitled to have regard to investigative information provided by the Commissioner of Police under s 12B about an investigation relating to the possible commission of a disqualifying offence by the Appellant or any other information about the offence, and under s 12C(2), to any information about the conviction.
Indeed, in subsection 12C(5) the language of the subsection is mandatory and the chief executive, when making a decision whether the Appellant was or continued to be an appropriate person for the grant of a licence, must have regard to the following matters relating to information about the commission of the offence of assault occasioning bodily harm by the Appellant—
(a) when the offence was committed;
(b) the nature of the offence and its relevance to the person carrying out the functions of a security provider under the licence;
(c) anything else the chief executive considers relevant to the decision.
The Appellant’s complaint is that the Statement of Reasons and the Notice to Show Cause show the chief executive took into account the whole content of a QP9 Police Court Brief which contained information for which the Appellant was not sentenced and which the Appellant did not admit through his guilty plea or his plea in mitigation of penalty.
The court transcript shows the facts upon which the magistrate sentenced the Appellant were—
1. On 25 February 2007, after a four year relationship, the complainant and defendant argued into the evening.
2. The next morning the complainant noticed a coffee table had been broken in the lounge room and commented about it to the defendant.
3. He arose from a mattress, grabbed the complainant around the throat, forced her head back, and threw her onto that mattress while still holding her by the throat.
4. She broke free and tried to get to a phone. Her path was blocked. He elbowed her a number of times. She tried to call 000 but he intervened and terminated the call. The phone fell (it was not ripped) from the wall.
5. The complainant had red marks and bruises on her neck and lower jaw as a result.
6. Their son was present during the assault.
7. The Appellant told the magistrate it was “just domestic mate. I woke up and she was drilling me as soon as I opened my eyes and did something I shouldn’t of.” He told the Magistrate he had a domestic violence order out against him and he could not go near the complainant and that he worked “for the mines underground”.
Mr McMillan submitted the chief executive took into account information about the offence upon which the Appellant was not convicted.
The problem for the Appellant is that the SPA does not prohibit the chief executive from taking such information about the offence into account. In fact, s 12C(5) mandates that the chief executive must take it into account provided it is not too remote in time, that the nature of the offence has relevance to the Appellant carrying out duties as a security provider or that it is otherwise relevant to consider it. Of course, natural justice must also be observed and the Appellant must be given a chance to respond to the information. He was given that opportunity in the Notice to Show Cause.
It is important, therefore, to remind the Appellant why he received a Notice to Show Cause and how it came about.
The Appellant was under a duty to disclose his conviction for assault occasioning bodily harm despite the non-recording of the conviction. In the Renewal Notice at page 3 the Appellant misinformed the chief executive stating that since the last issue of his licence he had not been convicted of any offence under the laws of any country. The document contains a warning that failure to make the disclosure may result in the licence being cancelled and that it is an offence to provide incorrect or misleading information. In submitting the application, the document also states, the Appellant consents to a criminal history check. The Appellant signed the document as true and correct on 30 October 2007.
The criminal history was then obtained and Mr Rashford, Principal Probity Review Officer, Office of Fair Trading, then wrote to the Appellant on 12 February 2008 summarising section 11 of the SPA, stating that the criminal history was obtained showing a “common assault” (misstating the true fact that the history showed an entry for an assault occasioning bodily harm) and giving the Appellant an opportunity to make a submission as to why his application for renewal should not be refused. The Appellant then wrote back an undated letter received at Fair Trading on 18 February 2008.
The Appellant wrote:
“I am writing to explain the court matter on the 16th March 2007. The matter was a domestic non-violent incident between myself and my girlfriend. It was basically an argument that grew slightly out of hand. No-one was hurt in the incident. But my girlfriend charged me with assault. I have had my security licence for ten years without incident and have no previous assault cases. This incident did not even warrant a court appearance. I only plead guilty for a speedy court appearance. I am starting up my own security company in a couple of months time so I hope this does not affect my renewal.” (my emphasis added)
The four matters emphasised above were clearly an attempt by the Appellant to mislead the decision maker and to minimise and trivialise what was a serious charge. The fine of $1200 imposed for a first assault (albeit with bodily harm) was, in my view, not particularly lenient. The non-recording of the conviction was also well within the discretion of the acting magistrate given that it was the first offence of its nature and that the only previous offences in the history were four indecent behaviour offences between 1989 and 2003, and two firearms offences in 1989 for which the Appellant was convicted and placed on a probation order for 12 months.
On 12 March 2008 Mr Rashford, as a delegate of the chief executive, again wrote to the Appellant and provided him with a Notice to Show Cause on the ground that he considered reasonable grounds existed to refuse to renew the licence on the grounds it would be contrary to public interest to renew it. Mr Rashford did note that the conviction was not recorded for the assault occasioning bodily harm. He referred also to the Appellant’s letter as highlighted above and to a phone call from the Appellant describing the assault as a minor incident. Paragraph 7 of the Notice then makes reference to the QP9 Court Brief and material which was not read to the magistrate, including—
1. “Use of excessive force against your partner” (this much was obvious),
2. That he forced her head back with the forearm of the other arm not holding her throat,
3. That his partner yelled and screamed for help,
4. That he blocked her path by continually elbowing her and standing in her way,
5. That he ripped the phone off the wall (this fact was clearly conceded not to exist by the prosecutor),
6. The complainant could taste blood in her mouth,
7. Her neck and upper jaw were aching and had pain running up and down the back of her neck to the base of her skull,
8. She was assessed by the Ambulance service and by a doctor, and
9. When interviewed by police he said he flipped out and just lost it.
Mr Rashford then wrote his ultimate ground for his intimated refusal:
“I have formed a view that by your actions you have shown disregard for the legal process and demonstrated a propensity to violence by assaulting your partner without any thought of the possible consequences of your actions. I therefore consider you are not an appropriate person to continue to hold a security officer’s licence.”
The Appellant responded in writing saying he disputed some of the facts. He did not break any furniture or phone. He said “I do not deny that I became frustrated with her. I sincerely would like to take this opportunity to tell you my girlfriend blew the situation out of proportion.” He did not address any other of the issues about the assault occasioning bodily harm raised by Rashford. As Rashford pointed out in his Statement of Reasons which then accompanied his decision to refuse the renewal, the Appellant at no time provided any details regarding the circumstances surrounding the argument with his partner (contrast the undated, “sworn (or affirmed)” affidavit filed by leave in support of this appeal which, furthermore, fails to explain why his letter and the magistrates court transcript differ so greatly).
It must be remembered that the acting Magistrate took into account that the complainant may have been nagging the Appellant but said that did not “give you the right to belt her to the extent you did”.
On the second day of the hearing before me, the Appellant was called to give limited evidence about his non-disclosure. He said he did not mention the charge or conviction for assault occasioning bodily harm because he did not know he had to. He said the magistrate had ordered “no conviction recorded” and that he gave signed permission to do a search of his criminal history. He said he made no attempt to deceive the decision maker.
The Appellant’s answers were evasive and unsatisfactory when he conceded he thought he had been convicted for other offences on his history, such as the firearms offences, yet he did not reveal those either. He said he was not sure why he did not insert them in the renewal notice. He did not ask or check with anyone whether he needed to make the disclosure. Given he did know that other conviction had been recorded and he did not disclose them either I conclude on the balance of probabilities the Appellant deliberately chose not to disclose any convictions.
It is clear in my view that the Appellant has graduated from an initial failure to disclose to then minimisation of the offence of assault occasioning bodily harm once challenged. Even disregarding the additional facts referred to by Mr Rashford from the QP9, the Appellant minimised his role in the offence. He minimised the consequences of his violent actions, he shifted blame for his inability to control his anger or avoid the use of violence by saying he became frustrated with the complainant, and he trivialised the offence by suggesting it did not even warrant a court appearance yet the incident was followed by the imposition of a domestic violence order preventing him having contact with the complainant. When one has regard to those facts presented to the magistrate which were not disputed the Appellant has totally failed to acknowledge he acted in an inappropriate and violent way. He said the incident was non-violent when clearly the facts he accepted before the magistrate involved serious violence, real injuries and hurt. He did not call the complainant on the appeal to support his latest account.
It was as a result of the Appellant’s own failure to disclose, followed by his own minimisation and obfuscation of the facts that Rashford sought further information. The Appellant was given an opportunity to respond and did so. The chief executive’ delegate was obliged to make the inquiries and to take the information received into account.
In my view the extra factors listed as (a) to (i) above add little, if anything, to the nature and character of the offence in the overall scheme of things. Leaving them aside, the Appellant’s letters contradict the facts and the nature of the offence as evidenced by the court transcript.
It was the Appellant’s attitude to the offending, his denial of violence, his trivialisation of the offence and the need to bring the matter to court, and his obfuscation which were under scrutiny, not the further facts drawn from the QP9.
The chief executive did not fall into error.
Even if it was an error to consider the additional factors in the QP9, then even disregarding the additional matters in the QP9, I still would have come to the same conclusion as the chief executive.
This ground fails.
Ground 2.
Did the chief executive fail to give adequate weight to the non-recording of the conviction for assault occasioning bodily harm on 16 March 2007?
Mr McMillan submitted that the non-recording of the conviction shows the Magistrate did not want the conviction to impact adversely on the Appellant’s employment.
However, the Appellant did not mention being a security provider at all to the acting magistrate. He only mentioned that he was working as a miner.
For the purposes of the SPA a conviction may be relevant whether or not it is recorded.
The acting magistrate has given fleeting consideration to the non-recording of the conviction. As the transcript confirms, after the fine was imposed and after having heard the defendant was working as an underground miner, an unidentified speaker asks: Sorry, your Honour. There’s no conviction recorded? The acting magistrate then asked the Appellant: “how does that impact upon your employment if I record a conviction?” The defendant is recorded as replying: “It may, if it goes in the papers it may.” Without more the acting magistrate then said: “Conviction is not recorded. It’s the first time. Don’t ever come back.” The defendant replied: “thanks mate”. No more was said by anyone.
Also, the criminal history obtained by the chief executive appears not to have been tendered by the prosecutor to the acting magistrate. If it had been, the acting magistrate would have seen that the previous offences had resulted in recorded convictions.
In all the circumstances little weight could be given to the non-recording of the conviction for the assault occasioning bodily harm. The chief executive did not fall into error.
This ground also fails.
Ground 3.
Did the chief executive take into account irrelevant considerations i.e. a criminal history which contains an entry of Rape (as found in the affidavit of Peter Rashford sworn on 9 April 2009) for which the Appellant was not convicted nor dealt with to accrue guilt of any sort?
Other than a brief mention that Rashford obtained an updated criminal history which Rashford attached to his affidavit sworn 9 April 2009, there is no evidence he took into account the entry mentioning a rape charge which was discontinued by the police prosecutor or that weight was placed upon it.
This ground was not seriously pursued.
The chief executive only referred the Appellant to the last entry for the assault occasioning bodily harm and not to the rape charge, even though he could have given the question on the renewal notice was whether the Appellant had faced charges for a disqualifying offence that has not been determined by the court. In my view the chief executive was right not to raise the issue at all given that no information was sought or received about the charge of rape and given that no evidence was offered so that the defendant was discharged.
The Appellant is and was entitled to the presumption of innocence in respect of that allegation. There was no error made by the chief executive.
This ground also fails.
Ground 4.
Did the chief executive fail to properly exercise his discretion?
In Liseo v Queensland Police Service [2006] QDC 496 at [28] to [30] the court held:
[28] Section 10(B)(1) of the Act requires the decision maker to determine whether the applicant is a “fit and proper person” to hold a licence. A leading case about the meaning of that expression is Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ explained the expression at p 380:
“The expression ‘fit and proper person’ standing alone carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain context, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”
The decided cases recognise, as might be expected, that a person’s character is capable of change and rehabilitation. For example see R v Davis 1947 75 CLR 409 at 416, Clerihan v Registrar of Motor Vehicle Dealers 1994 122 ACTR 25 at pages 30-31 (Miles C J):
“It is a matter of common experience that a person’s character is capable of development over time. … A whole philosophy of sentencing for serious criminal offences is built on that principle. When character is under consideration for a purpose connected with a trade or profession different considerations apply according to the nature of the trade or profession.”
Here, the question of fitness had to be considered against the principles and object of the Act:
“1. The principles underlining this Act are as follows:-
(a) weapon possession and use as subordinate to the need to ensure public and individual safety;
(b) public and individual safety is improved by imposing strict controls on the possession of weapons and
requiring the safe and secure storage and courage of weapons.
2. The object of this Act is to prevent the misuse of weapons.”
[29] Inspector Smart referred to Bond’s case. There is nothing to show that he, or the learned magistrate, misunderstood the concept of a fit and proper person.
[30] Where a licensee applies for the renewal of a licence, the authorised officer, in deciding the application, may consider ‘anything at the officer’s disposal’. See s 18(5).
The Security Providers Act 1993 does not have an objects section. However, it is an Act clearly intended to provide that only persons who are appropriate should hold or continue to hold a licence. In the explanatory notes to the original bill in 1993 the Honourable the Minister for Consumer Affairs and Minister for Corrective Services Mr G R Milliner stated:
The Security Providers Bill 1993 has the following objectives:—
1. To remove the regulation of security providers, that is, private investigators, security officers (in their own business or employed by security firms) and crowd controllers from the Invasion of Privacy Act 1971. In addition, the Bill aims to more rigorously regulate security providers, for example, all crowd controllers will have to be licensed, whereas at present only crowd controllers employed by security firms are licensed.
2. To reduce the number of security providers who are poorly trained by requiring them to complete prescribed training courses prior to licensing. There is currently no such requirement.
3. So as to “clean up” the industry, a person who has been convicted within the previous ten years of certain disqualifying offences will be automatically barred from obtaining a licence. In addition, any other convictions will be able to be taken into account by the Department of Consumer Affairs in considering whether an applicant should hold a licence. If a licensee is convicted of a disqualifying offence, the licence will be automatically cancelled. (my emphasis)
4. To reduce the incidence of violence at public places, all crowd controllers will be required to wear clearly visible identification while on duty. The Bill also provides for regulations to be made which will require employers of crowd controllers to maintain registers which will record details of the crowd controllers on duty and any violent incidents which occur at the venue.
In this case, the chief executive did take into account the submission by the Appellant that he needed a licence to be able to set up his new company, and that he had not had any complaints made against him while undertaking work as a security provider. This could be viewed as evidence of reputation (because it provides some indication of public perception as to likely future conduct).
The chief executive also took into account the criminal history and the Appellant’s subsequent attitude and behaviour in relation to that history. That could be viewed, in its context, as evidence of character (because it provides some indication of likely future conduct, whether assaults are likely to occur, whether it can be assumed they will not occur or whether the general community will have confidence that they will not occur.
In his outline of submissions, Mr McMillan argued that “there is no nexus at all between the assault occasioning bodily harm sustained against the Appellant and his fitness to perform work as a security officer”. However, Mr McMillan conceded during argument that the convictions for assault occasioning bodily harm and the four offences of indecent behaviour were relevant to the extent that a security officer often has to physically take hold of males and females and he is allowed to use a degree of force against the person’s will.
As well as the failure to disclose the assault occasioning bodily harm and other convictions, his minimising the offending and obfuscation of the facts, the Appellant did not offer any evidence to the chief executive of any efforts to confront his offending behaviour such as attendance at programs or counselling, there were no character references and no expression of contrition.
Having considered all the evidence before the chief executive and his reasons, in my view the chief executive did not fail to properly exercise his discretion.
This ground also fails.
In conclusion, I make the following further observations.
Under subsection 11(5):
(5) A person is not an appropriate person to hold a licence if the person, within 10 years of applying for a licence, has been convicted of a disqualifying offence.
In the dictionary of the SPA, disqualifying offence means an offence against (amongst other things) a provision of the Criminal Code mentioned in schedule 1. Also, conviction means a finding of guilt, or the acceptance of a plea of guilty, by a court, whether or not a conviction is recorded.
Schedule 1 (Disqualifying offence provisions under the Criminal Code) lists Chapter 30 (Assaults). Section 339 (Assaults occasioning bodily harm) is in chapter 30.
The Appellant has therefore been convicted of a disqualifying offence within 10 years of applying for the renewal of his licence.
Under subsection 21(2) the question whether a person is, or continues to be, an appropriate person is decided in the same way as the question whether the person would be an appropriate person for the grant of the licence.
Therefore, the Appellant is not an appropriate person to continue to hold a licence. The chief executive could have simply made a decision to refuse to renew the licence on that basis.
ORDER
The decision appealed against is confirmed.
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