Jacobs v Commissioner of Police, New South Wales Police (GD)

[2003] NSWADTAP 55

Appeal Panel - Internal

CITATION:	Jacobs v Commissioner of Police, New South Wales Police (GD) [2003] NSWADTAP 55
PARTIES:	APPELLANT Commissioner of Police, New South Wales Police Service RESPONDENT Kevin George Jacobs
FILE NUMBER:	039057
HEARING DATES:	03/11/03
SUBMISSIONS CLOSED:	11/03/2003
DATE OF DECISION:	11/07/2003
DECISION UNDER APPEAL:	Jacobs v Commissioner of Police, New South Wales Police Service [2003]
BEFORE:	Hennessy N - Magistrate (Acting President); Montgomery S - Judicial Member; Blake C - Member
CATCHWORDS:	statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	023285
DATE OF DECISION UNDER APPEAL:	07/31/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Security Industry Act 1997 Securities Industry Regulations 1998
CASES CITED:	Collins v Wilcock [1984] 1 WLR 1172; 3 All ER 374 Fitzgerald v Kennard (1995) 38 NSWLR 184 R v Court (1989) 1 AC 28
REPRESENTATION:	APPELLANT C Capper, agent RESPONDENT No appearance
ORDERS:	The Tribunal's order setting aside the Commissioner's decision to refuse Mr Jacob's application for a class 1A licence is set aside. In substitution for that decision, the Appeal Panel affirms the Commissioner's decision to refuse Mr Jacobs' application for a class 1A licence

Introduction

1 This is an appeal by the Commissioner of Police against a decision of the Tribunal that set aside the Commissioner’s decision to refuse Mr Jacobs a class 1A security licence. On 11 April 2000 Mr Jacobs was convicted of two offences under s 66C of the Crimes Act 1900. Those offences related to having sexual intercourse with two 14 year old males. Mr Jacobs pleaded guilty to those offences and was sentenced to imprisonment for two years and six months, with a non parole period of twelve months.

2 The Commissioner’s main submission was that these offences fall within the class of offences that requires the Commissioner to refuse an application for a security industry licence. The Tribunal decided that they did not. The Tribunal went on to decide that Mr Jacobs was a fit and proper person to have a security licence, and that it was not against the public interest for him to do so, as long as that licence was subject to certain conditions. The Commissioner contested both these findings on appeal.

3 The Tribunal affirmed the Commissioner’s decision to refuse Mr Jacobs’ application for class 1B and 1C security industry licences and those decisions are not the subject of this appeal.

4 The Appeal Panel has jurisdiction to hear this appeal pursuant to s 113(1) of the Administrative Decisions Tribunal Act 1997 (ADT Act). Under s 113(2):

An appeal under this Part:

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

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

5 The Commissioner did not seek leave to have the appeal extended to the merits of the decision. Mr Jacobs advised the Appeal Panel that he had withdrawn his application for a security licence and that he was not interested in participating in the Appeal Panel proceedings. The Commissioner’s grounds of appeal are considered in turn below.

Was refusal of the application mandatory?

6 Legislative framework. The first issue is whether the offences for which Mr Jacobs was convicted fall within the definition of the kind of offence that requires the Commissioner to refuse a person’s application for a licence. Section 17 of the Security Industry Act 1997 (“the Act") prohibits a person from carrying on a "security activity" (as defined in s 4) unless the person is the holder of a licence authorising the person to carry on the activity. The Commissioner must refuse to grant an application for a licence in certain circumstances. Section 16(1)(a) provides that:

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law,

7 Mr Jacobs was convicted of offences on 11 April 2000. As he lodged his application on 15 August 2002, the convictions occurred within 10 years of making the application. The next question is whether the offences, which were under New South Wales law, are prescribed by the regulations. Clause 11 of the Securities Industry Regulations 1998 (the regulations) sets out the offences prescribed in respect of s16 of the Act.
11 Offences that disqualify applicants: section 16

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

(c) An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:

(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or

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

8 Since Mr Jacobs was convicted and the penalty imposed was imprisonment, the only question is whether the offences for which he was convicted involved “assault of any description.” Section 66C(3) of the Crimes Act 1900, the provision under which Mr Jacobs was convicted, states that:
Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years is liable to imprisonment for 10 years.
9 “Sexual intercourse” is defined in s 61H(b) to include “sexual connection occasioned by the introduction of any part of the penis of a person into the mouth of another person.” In this case, it was part of the agreed facts before the court that Mr Jacobs put the victim’s penis in his mouth.

10 Tribunal’s reasoning. The Tribunal found that one must look at the elements of the offence, rather than the facts of the particular case, in order to determine whether the offence comes within the meaning of “an offence involving assault of any description”. While the Commissioner agreed with that finding, certain offences may or may not involve an assault. For example s 66D of the Crimes Act 1900 makes it an offence to attempt to commit an offence under s 66C or to assault any person with intent to commit such an offence. A conviction for attempting to commit an offence under s 66C may not involve an assault. In such cases the facts of the case will be relevant.

11 The Tribunal then went on to point out that an offence under s 66C does not require the prosecution to prove that sexual intercourse took place without the person’s consent or that the perpetrator knew that the other person did not consent. Section 77 of the Crimes Act 1900 makes it clear that the consent of a child under the age of 16 years is no defence to a charge under s 66C. This contrasts with s 61I relating to the “sexual assault” of a person over the age of 16 years. That section states that:

61I Sexual assault

Any person who has sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent to the sexual intercourse is liable to imprisonment for 14 years.

12 The Tribunal went on to note that the Crimes Act 1900 does not contain a definition of “assault” and that, accordingly, the common law definition of assault applies. The Tribunal quoted Goff J in Collins v Wilcock [1984] 1 WLR 1172; 3 All ER 374 at 1177; 378 as follows:
“ . . . assault is an act which causes another person to apprehend the infliction of immediate, unlawful force on his person.” (Emphasis added.)
13 This definition relates to “assault” as opposed to “battery” which, at common law, is the actual infliction of unlawful force. The Tribunal rejected the Commissioner’s submission that the offences of assault and battery are no longer regarded as separate offences in New South Wales.

14 The Tribunal found that even if lack of consent is not an element of an offence, that offence may still involve an offence of assault. In this case it was the Tribunal’s view that s 66C “does not contain any elements which are relevant to the offence of assault.” We assume that, by this comment, the Tribunal meant that s 66C does not contain any elements of the common law definition of assault, as distinct from the common law definition of battery. The Tribunal also differentiated the offence in s 66D (attempting, or assaulting with intent, to have sexual intercourse with a child between 10 and 16) from s 66C. The Tribunal appeared to be saying that while an assault committed with intent to commit an offence under s 66C is an assault, “sexual intercourse” is not an assault.

15 Commissioner’s submissions. Section 66I (headed “Sexual assault”) is the equivalent of s 66C in relation to victims who are aged 16 or over. That section makes it an offence for any person “to have sexual intercourse with another person without the consent of the other person and who knows that the other person does not consent.” The Commissioner submitted that if the offence in s 66I involves an “assault of any description” then the offence in s 66C must also involve an assault. The only difference between s 66I and s 66C is that the prosecution does not have to establish that the victim does not consent or that the perpetrator knows that the victim does not consent, to the sexual intercourse. According to Mr Capper, in the case of a person under the age of 16 years, that person is deemed not to consent. Otherwise, the offences are identical. If s 66I relating to non-consensual sexual intercourse with an adult involves an “assault of any description” then it is logical that sexual intercourse with a person under the age of 16 years is also an “assault of any description” because, apart from the fact that the person is deemed not to consent, it contains the same elements.

16 The Commissioner also relied on the written submissions provided to the Tribunal and the Appeal Panel.

17 Appeal Panel’s reasoning and conclusion. The Commissioner agreed that in interpreting the word “assault” we should apply the legal, rather than the ordinary, meaning of those words. As the Tribunal pointed out, at common law there was a difference between “assault” and “battery”. Lord Goff explained that difference in R v Court (1989) 1 AC 28 at 41:

In English law, an assault is generally distinguished from a battery. In the case of an assault, the relevant act is an act which muses another person to apprehend the infliction of immediate unlawful force on his person; in the case of a battery, it is the actual infliction of unlawful force on another person.
18 Lord Goff went on to point out in R v Court at 47-48, that in relation to indecent assault under the Sexual Offences Act 1956 (UK):
. . . the expression ‘indecent assault’ must have been intended to embrace both an assault and a battery though, paradoxically, an indecent assault will normally take the form of a battery.
19 Sexual intercourse, per se can constitute an assault. ( R v Clarence (1886-90) All ER Rep 133.) An offence under s 66C will always involve a “battery” because of the manner in which “sexual intercourse” is defined in s 61H. However, as with the offence of indecent assault under the Sexual Offences Act 1956 (UK), there is no distinction in the Crimes Act 1900, between assault and battery, at least in relation to what is known as child sexual assault offences including s 66C. A battery is now regarded as a “species of assault”. ( R v Court (1989) 1 AC 28 at 41, per Lord Ackner). The same point was made by the Supreme Court (Kirby ACJ, Sheller and Cole JJA) in Fitzgerald v Kennard (1995) 38 NSWLR 184. Their Honours held that to establish the offence of indecent assault under s 61L of the Crimes Act 1900 it is not necessary to prove assault in the “customary sense” that is, that there has been intentional or reckless hostility so as to create fear on the part of the victim. According to Cole JA, at 200: “It is established law that the assault ingredient in any indecent assault charge may involve either physical contact, being a battery, or a threat to the victim involving a reasonable apprehension of immediate and unlawful personal violence.”

20 The fact that the unlawful act is committed on a person under the age of 16 years, and consequently proof of failure to consent is not required, does not remove the conduct from the definition of an assault.

21 On the basis of this analysis, our conclusion is that an offence under s 66C of the Crimes Act 1900 is an “assault of any description” within the meaning of that term in s 16(1)(c) of the Act. While this makes it strictly unnecessary to deal with the Commissioner’s second ground of appeal, we do so in order to give an indication of our views.

Procedural fairness

22 Background. The Commissioner’s second ground of appeal relates to the Tribunal’s consideration of whether the Commissioner made the correct decision in accepting that Mr Jacobs is a fit and proper person to have a security industry licence and that it was not contrary to the public interest for him to have such a licence. Under s 15(1)(a) of the Act, “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.” Similarly, under s 15(3) of the Act “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.”

23 Mr Capper submitted that the Tribunal was under the mistaken belief that he had agreed that Mr Jacobs was a fit and proper person to hold a licence and that it was not contrary to the public interest for him to have a licence. According to Mr Capper, he merely agreed that the Tribunal had jurisdiction to impose conditions on a licence if it were satisfied that the applicant was a fit and proper person to have a security industry licence and that it was not contrary to the public interest for him to have such a licence.

24 This matter was heard by the Tribunal on 10 April 2003. The question of whether Mr Jacobs’ offences automatically exclude him from obtaining a licence was raised at the hearing. Prior to that, the focus had been on the questions of Mr Jacobs’ fitness to have a licence and on the public interest considerations. The Tribunal directed that the Commissioner file and serve written submissions relating to the mandatory refusal argument and that Mr Jacobs file and serve written submissions in reply. Having received those submissions, the Tribunal re-listed the matter for further hearing on 24 July 2003. The Appeal Panel obtained a transcript of that hearing, which supported Mr Capper’s assertion that he had not agreed to abandon the Commissioner’s reliance on Mr Jacobs’ lack of fitness or the public interest consideration. Mr Capper made it clear that he maintained that the application must be refused because of the offences Mr Jacobs had committed. Mr Capper agreed that the Tribunal could set aside the Commissioner’s decision and grant a licence subject to conditions. The following exchange took place between Mr Capper and the Judicial Member:

Tribunal member: “But as I understand from Mr Capper, he – the Commissioner would accept – if the mandatory refusal doesn’t apply, would the Commissioner accept a licence that is conditional, as I have outlined?

Mr Capper: “If – yes. If the Commissioner or the Tribunal has the power to issue such a licence – and that’s taking away the s 16(1)(a) issue – if there is, in fact, power to issue such a licence, I would agree that the strictest conditions should be imposed on that licence.

Tribunal member: Right.

Mr Capper: I would agree that – I have expressed by concerns. And certainly, the public safety issues and those issues are certainly serious matters that I’ve addressed you on previously. The conditions should be such that, certainly – that he be employed by a particular employer, and certainly be employed in a particular capacity, not to do roving patrols, or anything similar. The Tribunal can certainly set aside the Commissioner’s decision, if that’s what it chooses to do. The Tribunal can make a further decision saying that you will grant the licence, subject to the following conditions. And then list the conditions that you think are – the Tribunal thinks is appropriate in the circumstances.

25 It appears that when Mr Capper answered “Yes” to the Tribunal’s question about whether the Commissioner would accept a licence that is conditional, the Tribunal Member understood him to be accepting that Mr Jacobs was a fit and proper person to have a licence and that it was not contrary to the public interest to grant a licence. In fact, Mr Capper was only agreeing to the much narrower proposition that if the Tribunal accepted that Mr Jacobs was a fit and proper person to have a licence and that it was not contrary to the public interest to grant a licence, it had power to grant a conditional licence. This misunderstanding on the part of the Tribunal resulted in it not considering the fitness or public interest issues in any detail. (See [63] of the decision)

26 Mr Capper characterised the Tribunal’s findings on this point as being contrary to the rules of procedural fairness. He said that the Tribunal should have given him the opportunity to clarify whether or not he was abandoning two of the Commissioner’s grounds for rejecting Mr Jacobs’ application. In our view, the Tribunal’s conduct does not constitute a breach of procedural fairness. The Tribunal merely misunderstood the Commissioner’s submissions. That misunderstanding is now irrelevant given the Appeal Panel’s findings in relation to the first ground of appeal.

27 Mr Capper also submitted that the Tribunal had erroneously rejected the police fact sheet as being relevant to the questions of fitness or public interest. Again, given our finding in relation to the first ground of appeal, we do not need to come to a view on that point.

Order

The Tribunal’s order setting aside the Commissioner’s decision to refuse Mr Jacobs’ application for a class 1A licence is set aside. In substitution for that decision, the Appeal Panel affirms the Commissioner’s decision to refuse Mr Jacobs’ application for a class 1A licence.