Jovanovic v Commissioner of Police, New South Wales Police Force

[2010] NSWADT 115

CITATION:	Jovanovic v Commissioner of Police, New South Wales Police Force [2010] NSWADT 115
DIVISION:	General Division
PARTIES:	APPLICANT Dejan Jovanovic RESPONDENT Commissioner of Police, New South Wales Police Force
FILE NUMBER:	093116
HEARING DATES:	16 November 2009
SUBMISSIONS CLOSED:	17 November 2009
DATE OF DECISION:	17 May 2010
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Security Industry Act – Security Industry licence – Revocation of licence
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Security Industry Act 1997 Security Industry (Amendment) Act 2005 Security Industry Regulations 2007
CASES CITED:	IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 Petty v The Commissioner of Police, New South Wales Police Service [2003] NSWADT 20 Stranges v Commissioner of Police, New South Wales Police Service [2004] NSWADT 221 Feuerstein v Commissioner of Police, New South Wales Police Service [2007] NSWADT 114 Bazouni and Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100 Lynch v Commissioner of Police, New South Wales Police Service (GD) [2006] NSWADTAP 43 Commissioner of Police, New South Wales Police Service v Moussa (GD) [2005] NSWADTAP 20 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 Qantas Airways Limited v Gama [2008] FCAFC 69 (2 May 2008) Toleafoa (No 2) v Commissioner of Police, New South Wales Police Service [2000] NSWADT 48 Carter v Commissioner of Police [2005] NSWADT 265 Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43 Henry v Commissioner of Police, New South Wales Police Service [2003] NSWADT 45 Kapani v Commissioner of Police, New South Wales Police Service [2001] Comalco Aluminium (Bell Bay) Limited v O’Connor and Ors (1995) 131 ALR 657 Livadaiu v Commissioner of Police [2008] NSWADT 160 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994) Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Haining v Commissioner of Police, NSW Police Service (1999) NSWADT 6 Sitotaw v Commissioner of Police, New South Wales Police Service [2006] NSWADT 96 Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114 Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218 Mundarra Smith v Queen 206 CLR 650
REPRESENTATION:	APPLICANT David Leamey, solicitor RESPONDENT James Mattson, solicitor
ORDERS:	The decision of Commissioner of Police, New South Wales Police Service to revoke the Applicant’s Class 1AC security licence under the Security Act 1997 is affirmed.

REASONS FOR DECISION

Background

1 On 19 January 2005, the Applicant was issued with his first Class 1 security licence under Security Act 1997.

2 On 3 August 2006, the Applicant was charged with work-related assault.

3 On 25 September 2006, the Applicant’s licence was revoked.

4 A new Class 1AC security licence, the subject of the application was issued on 25 January 2008 and was due to expire on 16 January 2012.

5 On 7 February 2009 the Applicant was charged with “assault occasioning actual bodily harm” and “common assault”.

6 On 11 February 2009 the Notification of Revocation was prepared and forwarded to local police for service.

7 On 10 March 2009, the officer in charge of the police investigation regarding the abovementioned charges decided to withdraw the matter. It has been suggested that the fact that the victim declined to make a statement, and the witnesses were due to leave Australia, made it unlikely that they would attend Court if the matter were to proceed to a hearing and these were factors that gave rise to this decision by the officer in charge.

8 On 7 April 2009, the Notification of Revocation of Licence was served upon the Applicant by way of personal service. On 15 April 2009, at the Downing Centre Local Court, the charges of “assault occasioning actual bodily harm” and “common assault” were withdrawn and dismissed.

9 On 17 April 2009, a request for Internal Review was received.

10 On 23 April 2009, the Respondent sent the Applicant the Statement of Reasons for the Internal Review, which concluded that the Commissioner’s decision to revoke the Applicant’s class 1AC security licence is to stand.

11 On 7 May 2009, the Applicant lodged an appeal.

12 On 16 November 2009, the application came before the Administrative Decisions Tribunal for hearing.

Relevant Legislation

13 Section 26(1)(d) of the Security Industry Act 1997 (“the Act”), prescribes a licence may be revoked for any other reason prescribed by the Regulations:

“26. Revocation of licence

(1) A licence may be revoked:
…


(b) if the licensee:

(i)…, or

(ii) contravenes any provision of this Act or the Regulations, whether or not the licensee has been convicted of an offence for the contravention, or

(iii) contravenes any condition of the licence, or

…

(d) for any other reason prescribed by the Regulations.

(1A) The Commissioner must revoke a licence where 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.

…”

14 For the purpose of s.26(1)(d) of the Act, clause 29 of the Security Industry Regulations 2007 (“the Regulations”) provides that a licence may be revoked if the Commissioner considers it is not in the public interest for the person to whom the licence is issued to continue to hold the licence.

15 Section 15 of the Act states 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 (s.15(1)(a)).

Evidence before the Tribunal

16 The Applicant relies on:

(i)Statement from himself made on 30 October 2009 attaching references from Viliami Naa, Director of Pharaoh Security, Mrs Elizabeth Saunders, mother of the Applicant’s partner, Alexandra Saunders (who also provided a reference in support of the Applicant).

(ii)Statement from Slaven Surla made on 28 October 2009

(iii)A medical report, by way of a psychological assessment from consultant psychologist, Dr John Jacmon dated 25 October 2009.

(iv)Applicant’s further submissions faxed to the Registry on 18 November 2009.

(v)The Applicant filed, but did not serve on the Respondent, references from Boris Lav Jovanovic, the Applicant’s father, Tiberiu Brandusoiu dated 17 November 2009, Adrian Stanescu dated 17 November 2009, and Dean Krstanovski. Leave had been granted to file and serve a character reference from the Applicant’s father, but leave had not been granted to file these additional references.

17 The Respondent relies on:

(i)A bundle of documents prepared pursuant to s.58 of the ADT Act (“Section 58 documents”).

(ii)Statement from Constable Jared Howard, filed and served on 29 July 2009.

(iii)Statement from Detective Sergeant Nathan Vedder, filed and served on 21 July 2009.

(iv)Bundle of documents marked “Respondent’s Additional Documents” filed and served on 21 July 2009.

(v)Statement from Jennifer Windsor, filed 10 November 2009.

(vi)Computer disk containing CCTV footage from January 2009.

(vii)Respondent’s Outline of Submissions, filed 21 July 2009.

(viii)Respondent’s updated Outline of Submissions, filed 17 November 2009.

(ix)Letter received at the Registry of the ADT on 23 December 2009 dated 18 December 2009, which outlines the Respondent’s concern with respect to the references provided by the Applicant on 17 November 2009, being references not from his father and which were not served on the Respondent. This letter noted the Respondent’s concern with respect to the provision of these references in the absence of serving the Respondent and the fact that leave had not been granted to do so. The Respondent further noted that the Referee’s references did not include any acknowledgment that the Referee was aware of the Applicant’s conduct that led to the revocation of his security licence and accordingly, less weight should be attached to them. Furthermore, the Respondent raised issues concerning the reference from Tiberiu Brandusoiu insofar as the referee had not been made available for cross-examination at the hearing. The Respondent expressed concern re the Referee’s ability to assess character in light of the fact that ICAC, on 9 December 2009, had recommended that the advice of the Director of Public Prosecutions be sought with respect to the prosecution of Tiberiu Brandusoiu, following findings by ICAC of corrupt conduct for arranging a false certificate of competency to an applicant for a security licence.

18 In addition to the above written documentation provided to the Tribunal, both parties gave oral evidence before the Tribunal.

The Applicant’s Case

19 The Applicant referred to the report of Dr Jacmon to summarise the Applicant’s background circumstances and his findings about the Applicant. The Applicant drew the Tribunal’s attention, in particular, to the statement made by Dr Jacmon to the effect:

“Completion of treatment and continuation of support by significant others should markedly reduce the probability of future incidents similar to 2006’ and the 2009 incidents.”

20 The Applicant indicated that he regretted the injury suffered by Mr Akin, and indicated he relied upon the references and certificates attached to his submissions, in particular the statement made by Slaven Surla, dated 28 October 2009 and the Incident Report dated 7 February 2009.

21 The Applicant’s submissions spoke at length about the onus of proof for self-defence in criminal proceedings, stating the Prosecution has the onus of proving beyond reasonable doubt that the person did not carry out the conduct in self-defence.

22 The Applicant’s submissions then stated that, having regard to the onus of proof in criminal proceedings for self-defence, the Applicant perceived the actions of Mr Akin towards him as attacking him and the Applicant’s response in hitting him as being reasonable in all the circumstances and the Respondent had not rebutted this evidence.

23 The Applicant suggested that the failure of the alleged victim to make a statement was in effect an acknowledgment that the victim had done something improper, which would justify the Applicant’s actions in self-defence.

24 The Applicant further pointed to the victim’s statement that “he could not remember what happened on 7 February 2009”, as further evidence in support of the Applicant’s actions in self-defence and submitted that “the failure of the alleged victim to provide a statement results in the police being unable to prove that the Applicant was not defending himself and accordingly could not prove that the Applicant assaulted Mr Akin”.

25 The Applicant’s submissions emphasised that the witness Slaven Surla was sober and that he had confirmed that the Applicant approached Mr Akin during the scope of his work at the Trademark Hotel. The Applicant submitted that the Facts Sheet for the incident that took place on 7 February 2009 should be ignored and only the witnesses’ statements should be considered. This is because the Applicant’s representative said that the incidents were not witnessed by the police and other statements had been provided.

26 The Applicant further submitted that the 2006 charge had been dismissed. Reference was made to the fact that the Application for Review had been completed by the Applicant without the benefit of legal assistance, but it nevertheless correctly pointed out that the criminal charges were withdrawn/dismissed, and did not address any other criteria.

27 The Applicant’s submission stated that the submissions put were in addition to the reasons provided by the Applicant in his Application for Review, namely “the decision to revoke my security licence … reviewed because I am a fit and proper person to hold a security licence because it is not against the public interest for me to hold such a licence”.

28 The Applicant further drew the Tribunal’s attention to the Incident Report which had been completed by his colleague, Slaven Surla on the night of the incident. The Incident Report stated:

“At approximately 00.15, one male wearing a long sleeved grey T shirt, dark blue jeans, short brown hair (6-ft) exposed himself to security and the public and then started urinating on the hotel’s loading dock and bins. Dejan asked the man a second time, telling him not to urinate on our property. The man started swearing at security, telling Dejan to “fuck off”. Dejan then asked him, the man, and again told him to move on. The man then stopped urinating and walked towards Dejan with his hands in the air screaming “Do you want to fight?” Dejan started stepping back away from the man to create space between them. The man then charged towards Dejan and threw a punch at him. Dejan ducked out of the way and he defended himself by throwing a punch. The man dropped to the ground and hit his head on the ground. I then called an ambulance for the man as his friends (who were also urinating on our property) would not allow me to help the man or administer first aid.”

29 The Applicant’s representative challenged the observation of the Internal Reviewer:

“There would have been a high likelihood of a successful conviction in relation to the charges laid against you”.

30 The Applicant’s representative made a further reference to the fact that the witnesses went overseas and have not been seen since. That the victim, Mr Akin, had avoided police contact and that there had been no attempt to obtain an interpreter to check statements from the other witnesses, who could not speak English.

31 The Applicant’s representative submitted that the Tribunal should view the video evidence itself and disregard the police officer’s evidence as to what is depicted therein while, somewhat inconsistently, further commenting that the video was incomplete and should be disregarded, as being unreliable and not showing all of what happened, not a perfect view and unfairly prejudicial to the Applicant. This left the Tribunal unclear as to whether the Applicant’s representative was supporting the Tribunal viewing the video or suggesting that the video should be disregarded. The Applicant’s representative made no objection to the viewing of the video at the hearing.

32 The Applicant’s representative further discounted the evidence of Constable Jared Howard, on the basis that she did not witness the incident herself.

33 The Applicant submitted that the evidence of Mr Barreira was also unreliable as he had been drinking and had reason to cover up for Mr Akin, as his friend.

34 The Applicant further disputed the evidence of Gustavo Barreira, and Mr Tomoka, both of whom alleged that the Applicant had punched Mr Akin twice.

35 The Applicant’s representative contrasted the evidence of Mr Surla that the Applicant had only punched the victim once, with that of Mr Barreira and Mr Tomoka, who suggested that the Applicant had punched the victim twice

36 The Applicant’s representative concluded that it was most unlikely that the Applicant would have been convicted on the strength of the evidence in the two statements against him.

37 The Applicant maintained that contrary to the representations of the Respondent, the Applicant did have a legitimate reason to approach the person and get involved in a confrontation as: “the Applicant was responsible for guarding the area in which Mr Akin was urinating”.

38 The Applicant’s representative further dismissed the evidence of Officer Moloney on the same grounds, namely that she was not an eye witness, and her statement reflects simply what she was told by the various persons who witnessed the incident. (While both officers were available to give evidence, the Applicant chose not to call the officers).

39 The Applicant’s representative indicated they would have liked the opportunity to cross-examine Mr Tomoka, Phillippe Santos, and Mr Barreira, but these people have returned overseas and were unavailable to give evidence.

40 In response to the Respondent’s submission that the Applicant did not, after the event, contact the police or ambulance to treat Mr Barreira during the 2006 incident, the Applicant submitted this was justified in that Mr Barreira did not appear to require an ambulance initially and eventually one was called.

41 The Applicant admits one punch was made by the Applicant on 7 February 2009. The Applicant further contends that he did not leave his work, he was doing his work when he approached Mr Akin, and the fact that he threw food at Mr Akin was simply to obtain his attention.

42 The Applicant further submitted that he was provoked by Mr Akin, “to the point he had to defend himself”.

43 The Applicant maintained that because he confined himself to one punch, this was consistent with his representation that he did not escalate the situation and this was not excessive or unnecessary.

44 The Applicant further submitted that Mr Akin’s injuries were not fully particularised and were caused “due to his drunken behaviour, his moving towards the Applicant and due to his losing balance and hitting the ground”.

45 The Applicant did not accept the Respondent’s submission that “the charges against the Applicant for the 2009 incident were withdrawn because of the unavailability of witnesses and no inference favourable to the Applicant can be made by the fact”; nor did the Applicant accept the Respondent’s submission that the charges against the Applicant for the 2006 incident were dismissed because of a higher standard of proof on a discrete issue related to the particular charge; and the fact that the Magistrate had accepted the Applicant had punched a patron.

46 The Applicant submitted that the police had failed to acquit the responsibility to obtain exculpatory evidence by only taking statements from two of the seven persons, ignoring Mr Santos, because his English was not so good.

47 The Applicant drew attention to his good reputation, as detailed in his references, stating that he was unlikely to re-offend.

48 The Applicant stated that there had been no complaints, apart from the two criminal matters, and there was no evidence to suggest that the Applicant was likely to re-offend.

49 Dejan Jovanovic, in his statement filed on 2 November 2009, further stated that he had been deprived of the opportunity of cross-examining the absent witnesses and that in any event, they were drunk, it was dark, and they were not sufficiently close to the victim and the Applicant, to be able to observe what happened.

50 The Applicant indicated he was prepared to undertake a treatment plan proposed by Dr Jacmon, and that he had stopped working as a security guard one week after the incident, as his boss told him that his licence had been revoked.

51 Mr Jovanovic, in his statement, indicated that it was standard operating procedure for the security officers at the Trademark Hotel to patrol that area and stop persons from urinating and from entering the premises via the loading dock. He stated there was also another entrance to the hotel at the next corner, as depicted in photo P4, and that the victim was midway between the two entrances.

52 He drew attention to the Incident Report prepared by his colleague, Slaven Surla, which reflects Mr Jovanovic’s contention that he was acting in self-defence. He made reference to the fact that Mr Surla was sober and accordingly a more reliable witness than the companions of the victim.

53 Mr Jovanovic stressed he did not leave the scene of either the 2006 or the 2009 incidents.

54 The Applicant further stated in his statement that another reason for stopping people from urinating in the lane against the hotel building was because at busy times the patrons line up along the lane against the wall, waiting to get into the Trademark Hotel. He further stated that he was aware that food was delivered via the loading dock and accordingly, the security stopped persons from urinating there.

55 It was the Applicant’s contention that he stepped back and then the victim came at him and struck out at him, and that he (the Applicant) hit him in return only once.

56 Mr Jovanovic acknowledged that Mr Akin was drunk and uneasy on his feet. The Applicant acknowledged that perhaps his judgment was a little blurred by what had happened to him in the past, as detailed in Dr Jacmon’s report. He noted that it all happened very quickly, and it was dark; and there were several of them there.

57 He concluded that he did what he thought was necessary at the time. He could only explain the injuries of the victim as being caused by hitting the ground, and the fact that the victim was moving towards the Applicant when the Applicant hit him.

The Respondent’s Case

58 The Respondent submits that the Applicant’s security licence should be revoked, as it is not in the public interest for him to continue to hold the licence.

59 In the updated outline of submissions, the Respondent further contended that the Applicant’s security licence should be revoked, on the grounds that he is not a fit and proper person to hold a security licence (s.26(1)(d) of the Act and s.29 of the Regulations); (see s.26(1A) and s.15(1)(a) of the Act).

60 The Respondent submitted that the Applicant had demonstrated that he cannot be trusted with a security licence to act professionally, responsibly and without risk to public safety and this is of concern in the security industry.

61 The Respondent referred to the history of the Applicant, in particular to the occasion in September 2006, when the Applicant, while undertaking security duties, assaulted a patron of a nightclub who had been asked to leave (“the 2006 incident”).

62 Reference was made to the fact that this resulted in the Applicant’s security licence being revoked and the fact that the Applicant undertook further security training in late 2007. The Respondent cited this incident as indicative of the Applicant’s resort to excessive force in circumstances in which it was not required.

63 The Respondent characterised the issue of a new security licence to the Applicant on 25 January 2008 as a “second chance”.

64 The Respondent referred to the incident in February 2009 (“the 2009 incident”) in which the Applicant punched Mr Akin in the face.

65 The Respondent acknowledged that there was some contention on the part of the Applicant as to whether it was once or twice, but that, in any event, the Applicant had admitted to punching the person at least once.

66 The Respondent acknowledged that the Applicant may have been slightly affected by a psychological injury at the time, but submitted that this was not a complete excuse.

67 The Respondent submitted this was a further demonstration of the Applicant’s unwarranted, unreasonable and excessive force, contrary to what is expected and required of licensed security guards.

68 The Respondent submitted that the combined effect of these two events leads one to conclude that the Applicant was incapable of complying with the expectations and requirements of a licensed security officer, and accordingly should not be offered a further chance by way of an issue of a security licence, as it was not in the public interest for him to do so.

69 The Respondent sought to include an additional ground for revocation in his submissions, namely, that in addition to the public interest revocation ground, that the Applicant’s security licence should also be revoked on the grounds that the Applicant was not a fit and proper person to hold a security licence (see ss.26(1A) and 15(1)(a) of the Act.

70 The Respondent acknowledged that the Applicant may be suffering from psychological injury as a result of various unrelated assaults, occasioned on him, but thought that was an inadequate explanation for his conduct and further evidence in support of the proposition that the Applicant was presently suffering from an illness. The Respondent submitted that this illness can result in aggressive or violent behaviour which required treatment to safeguard against further aggressive incidents.

71 The Respondent made reference to the report of consultant psychologist, Dr Jacmon, recommending a 3 month treatment program, the length and success of which would be dependent upon the Applicant’s response to the treatment (page 10 of Dr Jacmon’s Medical Report dated 25 October 2009).

72 The Respondent noted the Applicant had addressed this additional ground of ‘not fit and proper’ in his evidence and submissions filed on 2 November 2009.

73 The Respondent noted that the Applicant had indicated he did not require Constable Howard, Detective Sergeant Vedder, or Senior Constable Moloney, for cross-examination.

74 It was the Respondent’s contention that the medical evidence from the clinical psychologist, Dr Jacmon, filed on 2 November 2009, provided further evidence in support of the proposition that it was not in the public interest for the Applicant to hold a security licence and, in addition, the Applicant was not a fit and proper person to hold a security licence at this point in time, due to his existing unresolved medical condition.

75 The Respondent submitted that it would constitute a real risk to public safety, and to the safety of the Applicant himself, if he were to hold a security licence at this point in time.

Issue

76 The issue for the Tribunal to determine is whether or not the Commissioner made the correct and preferable decision in revoking the Applicant’s Class 1AC security licence. Under s.63 of the Administrative Decisions Tribunal Act 1997, the Tribunal must take into account any relevant factual material and any applicable written or unwritten law, together with any further relevant material, so as to either affirm the original decision, vary it, or set it aside and substitute another.

Findings

77 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another:

“The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made”. ( Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, at 77).

78 Contrary to the assertions of the Applicant’s representative, there is no obligation on the Respondent to prove, beyond reasonable doubt, that the Applicant assaulted Mr Akin. In Hardy v Commissioner of Police, New South Wales Police [2006] NSWADT 167, Judicial Member Higgins stated (at [12]) :

“It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings.”

79 The standard of proof is the civil standard, based on the balance of probabilities. That remains the same, even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449).

80 In this regard, I accept the submissions of the Respondent, to the effect that it is enough that on the balance of probabilities the Applicant’s conduct, and his qualities are such that it is not in the public interest for him to hold a security licence, or that he is not a fit and proper person to hold such a licence at this point in time.

81 At the conclusion of the hearing on 16 November 2009 I gave the Applicant leave to file and serve a further reference from his father. The Applicant subsequently filed, on the ADT Registry but did not serve on the Respondent, the references referred to in the Applicant’s case at paragraph 16(v) above. While I accept the reference provided by the Applicant’s father, I do not accept the other references as leaver had not been granted to file these additional references, nor was there an opportunity provided to the Respondent to cross-examine the referees who, on the face of the references, were not aware of the Applicant’s conduct that led to the revocation of the security licence.

82 On 2 November 2009 the Applicant filed a medical report from a consultant psychologist, Dr Jacmon, which concluded that the Applicant was suffering (and is still suffering) from a psychological injury, as a result of various unrelated assaults occasioned on him.

83 The Applicant put this diagnosis as an explanation for his conduct in question and submitted that with several months of intensive treatment and support of others, he could get well.

84 The internal review of the initial revocation of the Applicant’s licence concluded that the Commissioner’s decision to revoke the Applicant’s Class 1AC security licence should stand, citing, in support, s.15 of the Act, which states 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 (s.15(1)(a)).

85 In the Respondent’s updated Outline of Submissions, filed on 17 November 2009, the Respondent submitted that, in addition to the public interest revocation ground, the Applicant’s security licence should also be revoked on the grounds that he is not a fit and proper person to hold a security licence, citing s.26(1)(a) and s.15(1)(a) of the Act.

86 The Respondent stated that he was entitled to rely on the further ground of ‘not fit and proper person to hold a security licence’ to revoke the licence and this was supported by the fact that the Applicant had addressed this additional ground in his evidence in submissions filed on 2 November 2009. I accept the Respondent’s submissions in respect of the issue whether the Commissioner can rely on a different reason for refusing the application, in circumstances where the Commissioner did not include in his reasoning for revocation the “fitness ground” until the final submissions.

87 I am supported in this view by the statements made by the Acting President in the matter of Stranges v Commissioner of Police, NSW Police Service [2004] NSWADT 221, where the Tribunal said, at [10] :

“The Tribunal “stands in the shoes” of the Commissioner and makes a new decision. The decision the Tribunal is reviewing is the decision to refuse to grant a licence, not the grounds for that decision. Consequently, the Commissioner may change the grounds of his decision but not the decision itself, subject to the Applicant being afforded procedural fairness.”

88 Not only was the Applicant afforded a generous timetable for the preparation of his Application for Hearing, but further time was provided, subsequent to the hearing, for the filing of a further reference; and, as has been stated by the Respondent, the Applicant had addressed this additional ground in his evidence and submissions filed on 2 November 2009 and was given the opportunity to file further submissions on the completion of the hearing.

Fitness

89 The meaning of the phrase ‘fit and proper person’ was discussed in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, where Toohey and Gaudron JJ said, at paragraph [36] of their judgment:

“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 a person who is or will be engaging in those activities. However, depending upon 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.”

90 In Forbes v Commissioner of Police, New South Wales Police Service [2005] NSWADT 151 at [16] the factors identified in Saadieh v Director General Department of Transport [1999] NSWADT 68 at 17, were found readily adaptable to determining a person’s fitness and suitability to hold a security licence. These included:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;

the nature, seriousness and frequency of any complaints made against the applicant;

the applicant’s reputation in the community; and

the likelihood that the applicant will re-offend, be the subject of further complaints or commit further offences.

91 The incidents in 2006 and 2009 involving allegations of assault whilst in the performance of his duties are of a nature, seriousness and frequency to be cause for concern albeit they were ultimately dismissed.

92 While the Applicant’s representative, David Leaney, in his further submissions on behalf of the Applicant suggests that the Applicant‘s:

“... psychological factors are not so incapacitating as to put him into a serious category, rather it is not an excuse but a partial explanation for the situation in which he found himself and his response at those times”.

The treatment is over 12 sessions and completion could be within three months, some aspects of the matter sessions are of a maintenance factor.”

93 Dr Jacmon, in his report, stated that on the basis of the results from clinical interview and assessment by testing together with considerable information on Mr Jovanovic’s state of mind, that his day to day functioning is being “impaired by post traumatic stress disorder and depression at clinically significant levels. He further stated the impairments revealed in the research notes markedly diminish the individual’s ability to formulate reasoned judgments, stating that PTSD and depression are frequently associated with irritability, loss of concentration and distressing thoughts. Dr Jacmon further stated that the Applicant’s disorders need treatment to address the symptoms, relieve distress and to enable positive outcomes in the future, stating that “treatment should help safeguard against the manifestation of behaviour that may lead to aggressive incidents”.

94 Dr Jacmon noted the following symptoms of post-traumatic stress disorder as being indicated in the Applicant:

“Being overly alert and easily startled.


Irritability and outbursts of anger.

Impairment in social, occupational and other important areas of functioning.

Exaggerated startled response.”

.

95 Dr Jacmon’s report concluded by recommending a course of treatment involving an initial three month period with possibly further treatment depending upon the Applicant’s response to treatment. In particular, it was noted that the success of treatment is also dependent on the support of significant others but such treatment should markedly reduce the probability of future incidents similar to the 2006 and 2009 incidents.

96 The findings and recommendations of Dr Jacmon provide the Tribunal with good cause to be concerned that the Applicant is not at this point in time be a fit and proper person to hold a licence in the security industry, given the nature of the industry and the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and ensuring that the public and public venues are safe (IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at 27).

97 The Applicant’s own medical evidence (Dr Jacmon’s report) indicates that presently he is prone to aggressive behaviour, in light of his test scores indicating severe Post Traumatic Stress Disorder symptoms, coupled with severe depression.

98 The Applicant’s personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry (Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at [32]).

99 The psychological profile of the Applicant presented in Dr Jacmon’s report is consistent with the Applicant’s history of assault charges, namely the 2006 and the 2009 incidents referred to above. While the Tribunal accepts that the Applicant may have been affected by previous psychological injury giving rise to Post Traumatic Stress Disorder, this does not provide the Tribunal with any comfort that such events will not be repeated in the future and the Tribunal draws little re-assurance from the Applicant’s further submissions which suggests that this provides “a partial explanation for the situation in which the Applicant found himself, and his response at those times”.

100 The objects and intentions of the Security Industry Act must be readily kept in mind and the highest standard that is applicable to licensees within the security industry. I note the statement made by Mr Gaudry, Parliamentary Secretary in the New South Wales Legislative Assembly on 12 November 2002 when he said, at page 6544 of Hansard:

“Clearly it is in the public interest that persons thought by police to present a public safety or criminal risk are not given special access to premises, persons or goods under the security licensing system. This should apply even where the person has yet to be charged (or convicted) with a specific criminal offence.”

101 The public interest in the paramount consideration to be given public safety demands that the public is not exposed to security officers who, for whatever reason, are incapable of undertaking their responsibilities in a professional manner and curbing their anger and impulse to inflict harm on others.

102 At this point in time the Applicant cannot be trusted to meet the high standards of conduct expected of a licensed security officer. As treatment is needed to safeguard against behaviour that may lead to aggressive incidents and the duration and success of that treatment cannot be assessed at this early stage.

103 For the above reasons I conclude that the public would be rightly concerned if a security licence were issued to a person who is currently suffering from Post Traumatic Stress Disorder, severe depression and is in need of treatment for anger management.

104 Accordingly, I am of the opinion that at this point in time the Applicant is not a fit and proper person to hold a security industry licence. This does not preclude the Applicant from applying again or renewing his application at a future point in time when he has successfully completed his treatment.

Public Interest

105 The “public interest” is an inherently broad concept, given the ability of the decision-maker to have regard to a wide range of factors in choosing whether to exercise the discretion adversely towards an individual (Toleafoa v Commissioner of Police [1999] NSWADT 9.

106 In regard to the term “public interest”:

“The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public, as distinct from the interest of an individual or individuals.” (Director of Public Prosecutions v Smith (1991) 1 VR 63).

107 The Applicant, whilst performing a licensed security officer’s duties, punched a person in the face in September 2006, which has been referred to as “the 2006 incident”. This led to the revocation of the Applicant’s security licence. The Applicant undertook further security training in late 2007 and the Applicant was issued a new security licence on 25 January 2008, which was due to expire on 16 January 2012.

108 On 7 February 2009 the Applicant was charged with “assault occasioning actual bodily harm” and “common assault”.

109 This led to the revocation of the Applicant’s licence.

110 On 10 March 2009, the officer in charge of the police investigation, regarding these charges decided to withdraw the matter. It has been suggested that the fact that the victim declined to make a statement, and the witnesses were due to leave Australia, made it unlikely that they would attend Court if the matter were to proceed to a hearing and these were factors that gave rise to this decision by the officer in charge.

111 The Security Industry Act 1997 established a scheme for licensing people to carry on security activities to ensure public safety by limiting access to premises or goods by persons deemed to constitute a risk.

112 The Applicant, by his conduct in 2006, and then again only a little more than one year after being re-issued with a Class 1AC security licence, is again charged with “assault occasioning actual bodily harm” and “common assault”. (See “2009 incident”).

113 While these charges were withdrawn and dismissed at the Downing Centre Local Court on 15 April 2009, the Applicant admitted to making one punch and the repetition of conduct within a relatively short period of being re-issued a licence, suggests that the Applicant cannot improve his behaviour as a licensed security officer, nor meet the high standards of conduct required by all industry participants; and it could not be said that his conduct instils the necessary confidence that he will behave with professionalism in the future.

114 In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114, the Tribunal observed, at [11]:

“The Security Industry Act1997 established a scheme for licensing people to carry on security activities. Within that Act there are several provisions that allow the Commissioner to revoke a licence. The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard.

115 Aggressive behaviour, and persons that exhibit such behaviour, have no role in the security industry, as was observed in Carter v Commissioner of Police [2005] NSWADT 265 at [27] :

“I agree with the Commissioner in relation to the risk to the public and that the violent and aggressive behaviour that Mr Carter displayed during the commission of his offence is not in keeping with the special role that is played by the Security Industry in ensuring that public order is maintained.”

116 The Applicant explained his conduct, in respect of the 2009 incident, by suggesting that the victim, Mr Akin, was dangerous and that his actions were by way of self-defence. While the Applicant accepted that he had thrown food at the victim by way of obtaining his attention, he was not forthcoming in acknowledging this and the inevitable consequence of an adverse response to such behaviour.

117 While the Applicant acknowledges that the victim was drunk and uneasy on his feet, he does not explain his need to hit him in these circumstances.

118 Further, there was evidence that the Incident Report prepared by the Applicant’s colleague, Slaven Surla, had been altered, with the insertion of words over liquid paper. The Respondent asks the Tribunal to draw the conclusion that these words had been added to downplay what occurred. While there was insufficient evidence on what had been whited out, it was nevertheless evident that the report had been amended. I am of the view that there is insufficient evidence on which to base a conclusion with respect to the purpose behind such amendments.

119 I believe the public would be vitally concerned if a security licence were issued to a person who had exhibited conduct of the kind the Applicant engaged in, in the 2009 incident, knowing that he had been charged with a similar incident three years earlier and had only received a second licence one year earlier by way of affording the Applicant an opportunity to demonstrate his professionalism and responsibility in undertaking his duties as a security guard. (Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43).

120 Having made the following findings:

that at this point in time the Applicant is not a fit and proper person to be the holder of a security industry licence; and
it is not, at this point in time, in the public interest for the Applicant to hold a security industry licence,

I affirm the decision of the Commissioner of Police, New South Wales Police to revoke the Applicant’s security industry licence.

Orders:

The decision of the Commissioner of Police, NSW Police Service to revoke the Applicant’s security licence is affirmed