Kfoury v Commissioner of Police

[2010] NSWADT 53

CITATION:	Kfoury v Commissioner of Police [2010] NSWADT 53
DIVISION:	General Division
PARTIES:	APPLICANT Dany Kfoury RESPONDENT Commissioner of Police
FILE NUMBER:	093144
HEARING DATES:	16 October 2009
SUBMISSIONS CLOSED:	21 December 2009
DATE OF DECISION:	22 February 2010
BEFORE:	Grant Y - Judicial Member
CATCHWORDS:	Security Industry Act – Security Industry licence – Revocation of licence
LEGISLATION CITED:	Security Industry Act 1997 Crimes (Sentencing Procedure) Act 1999 Security Industry Regulation 2007
CASES CITED:	Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 Comalco Aluminium (Bell Bay) Limited v O’Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Krzeminski [2002] NSWADTAP 3 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Director of Public Prosecutions v Smith (1991) 1 VR 63 Haining v Commissioner of Police [NSWADT 6] Krzeminski v Commissioner of Police (No 2) [2003] NSWADT 8 O’Neill v Commissioner of Police, NSW Police Force [2005] NSWADT 130 MU v Commissioner of Police [2004] NSWADT 197 R v Henry and Ors [1999] NSWCCA 111
REPRESENTATION:	APPLICANT Pierre Joseph Safi, solicitor RESPONDENT N Hailstone, solicitor
ORDERS:	The decision under review is affirmed.

REASONS FOR DECISION

Background Facts

1 On 19 July 2005 the Security Industry Registry (“the SIR”) received an application from the Applicant for a Class 1 ABC security licence for a period of five years.

2 On 1 September 2005 the Applicant was issued a Class 1 ABC security licence.

3 On 1 August 2008 the SIR received an application from the Applicant to amend his licence to a Class 1 AC security licence. The licence was subsequently amended.

4 At approximately 11.20 pm on 20 March 2009 the Applicant, while he was working as a security officer, was involved in an altercation with a prospective patron of Blush Night Club, Gosford.

5 The prospective patron, Mr Ole Jeppesen, sustained injuries including severe swelling and bruising to the right side of his face, a black eye and laceration above the eye. As a result of the incident the Applicant was charged with assault occasioning actual bodily harm and common assault.

6 On 22 April 2009 the Applicant’s security licence was revoked. The Applicant was advised that the basis of the revocation was that “the Commissioner considers that it is not in the public interest” for the Applicant to hold his security licence.

7 On 2 June 2009, the SIR received a Notice of Application from the Tribunal, enclosing an Application for Urgent Stay of a Decision and an Application for Review of a Decision. Also enclosed with the Notice of Application was a copy of a letter from the Applicant to the SIR dated 4 May 2009, requesting an internal review of the decision to revoke his licence. The SIR did not receive a letter requesting an internal review of the decision to revoke the Applicant’s security licence and, accordingly, did not conduct an internal review.

8 On 5 June 2009, the application for Urgent Stay of a Decision was listed. The Respondent noted that leave was required to proceed, given the absence of an internal review, but advised the Tribunal that leave was not opposed. The Respondent did, however, oppose the stay. After the hearing of submissions, the stay was granted. The proceedings were listed for hearing on 10 August 2009.

9 In the interim, the Applicant’s criminal charges were listed for hearing on 17 August 2009. Accordingly, the parties requested that the hearing date be vacated and adjourned, pending the finalisation of the criminal charges against the applicant.

10 On 17 August 2009 the Applicant pleaded guilty to common assault. He was conditionally discharged under s.10(1)(b) of the Crimes (Sentencing Procedure) Act 1999. No conviction was recorded, but he was required to enter into a Good Behaviour Bond for 18 months.

11 On 18 August 2009 the Tribunal listed the matter for hearing on 16 October 2009.

Applicable Legislation

12 Section 26(1) of the Act provides, relevantly:

“ 26. Revocation of licence

(1) A licence may be revoked:
…

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

13 Clause 29 of the Security Industry Regulations 2007 (“the Regulations”) provides:

“ 29. Revocation of licence – additional reason: s.26(1)(d)

For the purposes of s.26(1)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.”

14 Section 26(1A) of the Security Industry Act 1997 (“the Act”) provides:

“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.”

15 Section 16 of the Act contains restrictions on the grant of a security licence. Section 16(1)(b) provides:

“ 16. Restrictions on granting licence – criminal and other related history

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

…

(b) has, within the period of five years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a Court in New South Wales or elsewhere, of an offence prescribed by the Regulations in relation to the class of licence sought, whether or not the offence is an offence under the New South Wales law, or

…”

16 Prescribed offences for the purposes of s.16 of the Act are set out in clause 18 of the Security Industry Regulations 2007 (“the Regulations”) which relevantly provides:

“ 18. Offences and Civil Penalties that disqualify applicants:

Prescribed offences: s.16(1)(a) and (b).

For the purpose of s.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)Offences involving assault:

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 is imprisonment, or a fine of $200 or more, or both, or

(ii)in any 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.”

Revocation of licence - Additional Reasons: s.26(1)(d)

17 For the purposes of s.26(1)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it.

The Respondent’s Case

18 The Respondent contends that the correct and preferable decision is that the Applicant’s licence must be revoked, as he has “been found guilty (but with no conviction being recorded) … of an offence prescribed by the Regulations”, namely “an offence that in the opinion of the Commissioner, is a serious assault offence” (ss.16(1)(b), 26(1A) of the Act; cl 18(1)(c)(ii) of the Regulations.

19 The Respondent further submits that it is contrary to the public interest for the Applicant to hold his licence (s.26(1)(d) of the Act; cl 29 of the Regulations).

20 The Respondent submits that pursuant to s.26(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.

21 Accordingly, the Respondent further submits that if this was a licence application matter, the Commissioner would have refused to grant the Applicant a licence pursuant to s.16(1)(b) as the Applicant has, “within a period of 5 years before the Application for the licence was made, been found guilty (but with no conviction being recorded) by a Court in New South Wales or elsewhere of an offence prescribed by the Regulations …”, namely an offence ‘that, in the opinion of the Commissioner, is a serious assault offence (cl 18 of the Regulations).

22 The Respondent also submitted that the Tribunal cannot consider the evidence of the Applicant given on 16 October 2009 at the Tribunal hearing, as it constituted “fresh evidence” and was not before the Magistrate at sentencing. The Respondent stated that the Tribunal must have regard to the offence (as found by the Court). In particular, the Respondent submitted that as the Applicant had pleaded to the Amended Facts Sheet, and those facts were before the sentencing Magistrate, that the Tribunal should consider only those facts as constituting the offence “as found by the Court”.

23 The Police Facts Sheet, as amended, was referred to in paragraph 4 of the Applicant’s submission and annexed thereto, and read as follows:

“The victim, whilst situated outside the Night Club, appeared to be speaking with and having a conversation with security standing out the front.

… About 11.10 pm this night, security guard Dany Kfoury has then taken several steps towards the victim and with two hands has pushed the victim to the shoulder area causing him to fall sideways and land face first onto the roadway behind him.

Entire incident is captured on Council CCTV footage. … The accused is clearly depicted to take several steps towards the victim and push him to the chest area causing him to fall backwards and land on the roadway.”

24 The Respondent drew the Tribunal’s attention to the departure from the facts as contained in the Police Facts Sheet as was evidenced in the Applicant’s submissions at paragraph 29, that the push was “an open handed push to the shoulder of the victim” and accordingly submitted that this departure should not be accepted by the Tribunal as it differs to the assault events as found by the Court and that the Tribunal’s role was not to re-hear the criminal charges or to take any fresh evidence into account (Commissioner of Police v Krzeminski [2002] NSW ADT AP 3, at 32; Ibrahim v Commissioner of Police [2009] NSWADT 245 at 37).

25 The Respondent further submitted that most of the Applicant’s submissions made to the Magistrate in relation to the issue of sentencing are irrelevant to the issue of whether the assault was a serious assault offence “as the submissions were made in the context of the sentencing”. The Respondent further refuted the Applicant’s submission, saying that the fact that the prosecution did not wish to be heard in response to the Applicant’s submissions does not imply that the prosecution accepted the submissions as truth but, rather, that the prosecution did not wish to be heard in relation to the issue of sentencing.

26 The Respondent submitted that the assault was objectively serious for the following reasons:

(a)The Applicant was working as a security guard at the time of the incident ( Toleafoa (No 2) v Commissioner of Police [2000] NSW ADT 48 at 36).

(b)The Applicant pushed the victim with two hands, the use of bodily force and the voluntariness of the Applicant’s conduct are factors suggesting the offence was serious rather than trivial: Krzeminski (No 2) at 46.

(c)The Applicant took several steps towards the victim who was “situated out of the front of the Night Club and appeared to be speaking with and having a conversation with security standing out front”.

(d)An objective bystander would be concerned that the victim was pushed into the gutter of the roadway where cars and taxis frequently park and drive. The gutter was approximately 1 to 2m from where the victim was standing.

(e)The victim sustained significant injuries including severe swelling and bruising to the right side of the face, as well as a black right eye and cut above it. The Respondent submitted that the effect of the assault on the victim is a relevant factor in determining objective seriousness of the offence: R v Henry and Ors [1999] NSWCCA 111 at 85 per Spigelman CJ.

(f)The Respondent submitted that the decision in Ibrahim v Commissioner of Police [2009] NSWADT 245 (“ Ibrahim ”) that the assault was “a serious assault offence” should be followed by the Tribunal due to the factual similarities. The Police Facts Sheet in the present case disclosed that the push was “not light or superficial” or “jesting, trifling or playful” ( Krzeminski (No 2) ).

27 The Respondent also submitted that it was contrary to the public interest for the Applicant to hold his licence as the Respondent contended the Applicant could not be described as a person of integrity, viz, a person who is honest, truthful and of good character or appropriately qualified (O’Neill v Commissioner of Police [2005] NSWADT 130 (“O’Neill”)).

28 The Respondent further noted that the character references provided by the Applicant were written at a time when the Applicant intended to defend the criminal charges and do not take into consideration that the Applicant subsequently pleaded guilty to the common assault charge.

29 The Respondent therefore suggested that the Tribunal should proceed with caution in accepting the character references.

30 The Respondent also cautioned the Tribunal with respect to the weight of Mr Hancock’s evidence in his statement filed on 13 October 2009, as he had given oral evidence before the Tribunal that he knew the Applicant on a personal level for many years and hence that his evidence may be less than impartial.

31 The Respondent further submitted that the credibility of the Applicant had been impugned to the extent that his evidence in relation to the offence, as understood by the Respondent, differs from the CCTV footage of it. The Respondent noted that the contemporaneous COPS Event entry made by the officer investigating the offence, contained in the s.58 documents, filed by the Respondent on 24 August 2009 records that the Applicant and other security guards initially stated that “at no time did they push the victim” and they were “required to place their hands up in front of the victim to prevent him from entering the Club”.

32 The Respondent submitted that the Applicant had not been open and candid about the incident until he saw the CCTV footage, having previously suggested he would “strenuously defend the criminal charges”; albeit without providing a written statement or detailed account of the incident until the Tribunal hearing.

The Applicant’s Case

33 The Applicant’s representative submitted that Dany Kfoury was a fit and proper person to hold and maintain a security licence and that the assault occurred in circumstances where the Applicant was discharging his duties as a doorman of the Blush Night Club and in circumstances where the victim was inebriated.

34 The Applicant submitted that the victim was attempting to enter the Blush Night Club, being licensed premises within the meaning of the Liquor Act 2007 and that he had acted pursuant to s.77(2) of the Act, namely:

“An authorised person may refuse to admit to, or may turn out of, licensed premises any person who is at the time intoxicated, violent, quarrelsome or disorderly”.

35 It was the Applicant’s submission that the victim met this description and accordingly, the Applicant was entitled to refuse the victim admission from the licensed premises and require him to move on.

36 The Applicant submitted the victim failed to move on after being asked to do so on a number of occasions and was “in the face of” another security guard. The Applicant conceded that he was “not entitled in the circumstances to manhandle the victim and might have used less physical force to move the victim away from the premises”.

37 It was the Applicant’s submission that he had learned new techniques to deal with matters that led to his prosecution, arising from his review of his obligations under the Security Industry Act 1997.

38 The Applicant submitted that he is employed in the security industry and his livelihood is dependent upon the income he derives from his employment in that industry. The Applicant drew the Tribunal’s attention to the fact that he had no previous record of any offence in Australia or indeed Lebanon and submitted that the only reason for the Commissioner concluding, pursuant to clause 29 of the Security Industry Regulation 2007, that it was not in the public interest for the Applicant to continue to hold the Class 1 AC security licence, was on the basis of this incident and accordingly, the conclusion was unjustified.

39 The Applicant referred to the statement given by Senior Constable David Barrett, in which he stated that “he considers the Applicant to be a fit and proper person to hold a security licence and the incident to which he pleaded guilty has not and does not affect the Applicant’s capacity to hold such a licence”.

40 It was the Applicant’s submissions that the evidence of Senior Constable David Barrett should be considered of great probative value in assessing the fitness of the Applicant to hold a security licence.

41 The Applicant submitted that the totality ‘of the allegations relied on by the Commissioner are set out in the Police Facts Sheet’ and accordingly the only assault was an open hand push to the shoulder of the victim.

42 It was the Applicant’s contention that the revocation of licence took place in circumstances where there was a primary charge of an assault occasioning actual bodily harm on foot against the Applicant and in the light of these charges being subsequently withdrawn and replaced by a charge of common assault, there were insufficient grounds to justify the revocation.

43 The Applicant submitted that the open hand push to the left shoulder of the victim could not appropriately be characterised as a “serious assault” pursuant to s.16 of the Security Industry Act and cl 18 of its Regulations.

44 The Applicant submitted that the Respondent had failed to take into consideration all relevant facts including the opinion of Senior Constable David Barrett, the Amended Police Facts to which the Applicant had pleaded guilty, the history and character of the Applicant and the obligations of the Applicant to comply with the provisions of the Liquor Act 2007 in the circumstances.

45 The Applicant further conceded that he might have had more care for the victim in ensuring that he not fall over as he did, but that this failure had been addressed by the Applicant taking further training and advice.

46 The Applicant contended that “had the victim not fallen over, which fall was contributed to by the victim’s own intoxication, in all likelihood, criminal charges would not have been laid against him”.

47 The Applicant accepted, however, as he had in the Local Court, that the incident could have been handled with a greater degree of sensitivity and care.

48 The Applicant referred the Tribunal to the matters to be taken into account in dealing with a matter pursuant to s.10(1) of the Crimes (Sentencing Procedure) Act, which he annexed to his submissions.

49 It was the Applicant’s submission that the factors to which the Magistrate had regard in deciding to make an order pursuant to the provisions of s.10 of the Crimes (Sentencing Procedure) Act are those set out in subsections (3)(b) and (c). Subsection 3(b) refers to the trivial nature of the offence and subsection (3)(c) refers to the extenuating circumstances in which the offence was committed.

50 The Applicant referred to the CCTV footage which had been viewed by the Tribunal and suggested that:

“The footage speaks for itself in identifying the actual physical contact as between the Applicant and the victim. That contact, on any view of things, could not be considered serious”.

51 The Applicant cited Krzeminski v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 8 (“Krzeminski (No 2)”), in particular the Summary of the Decision at paragraph 48 of the judgment and submitted that the fact that the Applicant pushed the victim to the left shoulder using “the check drill” technique (which a witness in the proceedings, a Mr Rohen Hancock, Security Manager for Infinity Protection Services, had attested was an approved method) could not meet the test for a serious offence as outlined in the case of Krzeminski v Commissioner of Police, as there was no anger, threat, no weapons and indeed no brute force.

52 The Applicant went on to say that the Applicant’s case was also distinguishable from Krzeminski (No 2), furthermore, by the absence of fear in the mind of the victim.

53 The Applicant contrasted the orders made by the Court in the case of Krzeminski (No 2) where the offender was required to submit himself to psychiatric treatment and alcohol counselling, whereas in the present case, the Applicant was discharged on his own recognisance to be of good behaviour for 18 months with no conditions attached.

54 In respect of the Respondent’s contention that it was not in the public interest for the Applicant to retain his security licence, the Applicant sought to distinguish his circumstances from those of the Applicant in the case of Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245 by stating that the Applicant did have an adequate understanding of the standards that he must meet as a security guard. In support of this contention, the Applicant referred to the evidence of Mr Hancock, the character statements tendered and the statement of Senior Constable David Barrett of the Commuter Crime Unit, Brisbane Waters, recommending that the Applicant should not lose his licence as a result of this incident.

55 The Applicant further submitted that the fact that there had been no previous incident nor any subsequent incidents since the events which gave rise to the revocation of the Applicant’s licence (as he has continued to operate pursuant to a stay granted by the Tribunal on 5 June 2009) supports the Applicant’s submission that it would not be contrary to the public interest to permit the Applicant to retain his licence.

Material before the Tribunal

56 The Applicant filed written submissions dated 25 September 2009, a statement of Mr Rohen Hancock dated 13 October 2009.

57 The Respondent filed s.58 documents on 24 August 2009; written submissions dated 2 October 2009, Statement of Senior Constable David Roberts dated 21 September 2009.

58 On 30 October 2009 the Applicant provided his closing submissions and the Respondent provided further closing submissions.

59 During the hearing the Respondent tendered a copy of the CCTV footage of the incident on 20 March 2009. A copy of the transcript of the sentencing proceedings before Magistrate Viney at Gosford Local Court on 17 August 2009 was also provided.

60 Three witnesses gave oral evidence during the hearing: the Applicant, Mr Hancock and Senior Constable Roberts.

61 Mr Hancock gave evidence in relation to the different techniques that can be used by security guards and where on the “force continuum” those techniques may fall, at which time I made some enquiries as to whether there was a manual outlining the correct application of a “check drill”. The Respondent has attached to their closing submissions Security Industry Registry (“the SIR”) Learner Guides, which all training organisations are required to purchase. The Respondent informed the Tribunal that Learner Guides represent a minimum standard of the material that a training organisation must cover in the training offered by their services. The Respondent provided information, relevant extracts from the Learner Guide, relating to, inter alia, the pre-licensing training that must be completed by anyone wishing to apply for a provisional 1C licence. The Respondent noted that the extracts are relevant to the “PRSSO305A – Manage Conflict Through Negotiation” unit. The Respondent also provided a copy of the training requirements for TR4 Provisional and Class 1 Licences with unit “PRSSO305A”.

The Issue

62 The issue to be determined is whether the correct and preferable decision is to revoke the Applicant’s Class 1 security licence and in this case the answer (principally) turns upon whether the Applicant was guilty of a ‘serious assault offence’. If that is not the case, the issue to be determined is whether it is nevertheless in the public interest that the security licence be revoked.

Findings

63 Neither the Act nor the Regulations define “serious assault” offence but the Regulations provide for an offence that “in the opinion of the Commissioner, is a serious assault offence”. Accordingly, whether the Applicant’s offence should be considered a “serious assault” offence is a matter of assessment by the Tribunal.

64 While the Tribunal noted the Applicant’s reliance on the views of the officer in charge of the criminal investigation, Senior Constable David Roberts, as to whether the Applicant’s security licence should be revoked, these views are not relevant in determining whether the offence is a serious assault offence.

65 I accept the Respondent’s submission that the officer in charge of the investigation did not have the appropriate delegation to make such a decision, nor was the Commissioner required to consider the officer’s views, when forming his opinion as to whether a security licence should be revoked on the basis that the offence was a “serious assault” offence.

66 The relevant opinion is that of the Tribunal, standing in the shoes of the Commissioner.

67 Section 63 of the Administrative Decisions Tribunal Act 1997 provides:

“63. Determination of review by Tribunal


(1) In determining an application for review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is, having regard to the material then before it, including the following:

(a)any relevant factual material;

(b)any applicable written or unwritten law.”

(2)For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the Administrator who made the decision.”

68 In the Commissioner of Police vKrzeminski [2002] NSWADT AP 3 (“the Appeal Panel Krzeminski decision”) at paragraph [3] stated:

“The question whether the Applicant’s offence should be considered a “serious assault” involves both questions of fact and questions of law. The word “serious” bears its ordinary meaning and gives rise to a question of fact.

“Serious” is defined in the Shorter Oxford English Dictionary (1992) as:

“Not light or superficial … not jesting, trifling or playful, … weighty; important; grave; (of quantity or degree) considerable…”

However, the scope of the matters that can be taken into account in determining whether a particular offence is a “serious assault” offence involves the effect or construction of this phrase, though as a question of law.”

69 In assessing whether the offence is “serious” the Tribunal must confine itself to the material that was before the Local Court when hearing the case. It is not the Tribunal’s role to re-hear the criminal charges, or to take any fresh evidence into account: the Appeal Panel Krzeminski decision, at paragraph [32].

70 The correct approach to be adopted by the Tribunal in determining this issue is discussed in Krzeminski v Commissioner of Police (No 2) [2003] NSWADT 8 (“Krzeminski (No 2)”) where it was held that mitigating factors, which are ordinarily taken into account at sentencing, are of no relevance to whether an assault constitutes “a serious assault offence” for the purposes of clause 18(1)(c). Only the objective conduct constituting the offence is relevant. Judicial Member Lee stated at paragraphs [34]-[35]:

“[34] This Tribunal’s task is to determine whether the offences for which the Applicant was found guilty of committing constitute “serious assault offences” in accordance with the reasoning in the Appeal Panel’s decision. Essentially that reasoning requires that the Tribunal only have regard to actual circumstances of the relevant conduct insofar as was required to establish the assault offence, that is, for the purposes of the issue before it, only the objective conduct constituting the offence is relevant, not the whole circumstances of the case or the personal and mitigating factors ordinarily taken into account by a Judge in determining an appropriate penalty.

[35] Accordingly, as the Applicant’s submissions almost entirely concerned personal and mitigating factors, these factors cannot be used in the manner contemplated by the Applicant in any sort of balancing or discretionary exercise, in order to determine whether his offensive acts, for which he pleads and was found guilty, objectively constituted a ‘serious assault offence’.”

71 In R v Henry and Ors [1999] NSWCCA 111 at 85 Spigelman CJ stated at p.168: “There is no doubt that impact on victims is an indication of the seriousness of an individual offence.” In the present case the victim sustained significant injuries including severe swelling and bruising to the right side of the face, as well as a black right eye and cut above it. In Krzeminski (No 2) Judicial Member Lees observed:

“In the Tribunal’s view it is conceivable that a common assault offence could fall anywhere along a continuum ranging from a trivial common assault offence to an extremely serious common assault offence (although to a victim any assault they have been subjected to might not be considered trivial, objectively viewed it may be so). Accordingly not all common assault offences are necessarily serious. A common assault offence may be considered “trivial or serious” to one degree or another depending on the factors present in the commission of the offence. In addition to the effect the assault has on its victim/s, some other factors might include: the vulnerability of the victim, the voluntariness or not of the offender’s conduct; what is actually said or intimated by the offender; the offender’s tone and volume of voice and the offender’s appearance and bodily actions or gestures and the apparent degree of control or calm in the offender (his or her intensity and demeanour); the use or not of bodily force; the presence or not of weapon/s held by offender or victim; the nature and dangerousness of such weapon/s and the use, if any, that is made of such weapon/s. These factors are each capable of reasonably objective observation and an incident’s triviality or seriousness may result from the presence of one factor or an aggregation of such factors.” (Para 46)

72 When considering the conduct of the Applicant in these proceedings against the criteria set out in Krzeminski (No 2) above. The following matters suggest the offence was a “serious assault”, namely::

A careful examination of the CCTV footage demonstrates that the victim at the time of the incident appeared to be engaging in conversation, albeit protracted, with another security guard. While the Applicant submitted that the victim was “intoxicated, quarrelsome and disorderly”, the CCTV footage only suggests that the victim was intoxicated and there is no evidence (CCTV or otherwise) that the victim was quarrelsome or disorderly, save to the extent that he was engaging in protracted conversation and there is no probative evidence of threats said to have been made by him.

The CCTV footage does not suggest any physically challenging behaviour by the victim who, for the most part, appears to be in conversation or looking down at his wallet.

Four security guards were present at the scene and there is no suggestion that the Applicant was at real risk of being harmed by the victim.

There is no evidence that the push initiated by the Applicant was necessary at all, let alone as initially suggested by the Applicant and his security guard colleagues, to stop the victim from going into the club. The Applicant in his statement both before the Local Court and the Tribunal has accepted that he had no power to force the victim to move on.

The CCTV footage shows the victim to be unsteady on his feet, no doubt as a consequence of his intoxication.

The footage further shows that when the victim was pushed he fell immediately, suggesting he had no capacity to readily regain his balance. His vulnerability would have been obvious to the Applicant.

The force of the push (together with the unbalanced state of the victim) was such as to cause the victim to travel 1 to 2 metres from where he initially stood. In the CCTV footage the victim can be seen travelling sideways for that distance before ending up in the gutter.

There was no evidence on the CCTV footage of the victim taking steps towards the Applicant 5-10 seconds prior to the incident while raising his left arm. The footage shows the victim was stationary facing another security guard, although he was seen to sway slightly.

It is of concern that the Applicant is recorded, in a contemporaneous COPS event statement by the officer investigating the offence, as saying that “at no time did he or his colleague push the victim and they were required to place their hands up in front of the victim to prevent him from entering the club”. This representation is inconsistent with what was observed on the CCTV footage and compromises the Applicant’s credibility as a witness. The injuries sustained and the distance travelled are indicative of unnecessary force being used by the Applicant to compel the victim to leave the area.

The Applicant proffered no explanation for initially denying that he had made any push at all, with the inference being he realised he had overstepped the mark on the night in question and was not prepared to confess to a push until he viewed the CCTV footage and realised denial was no longer possible.

The use of force was in circumstances where there was no threat and indeed, the Applicant conceded that “he was not in the circumstances entitled to manhandle the victim”; that “he might have used less physical force”; and that “he might have had more care for the victim in ensuring that he did not fall over as he did”.

An objective bystander would not expect a security officer to assault potential patrons or respond in this manner in an effort to prevent entry to the club.

While I accept the Applicant was, pursuant to his training, required to refuse to admit to licensed premises any person who is at the time intoxicated, violent, quarrelsome or disorderly pursuant to s.77(2) of the Liquor Act 2007 , and I acknowledge that the victim was inebriated, I agree with the Magistrate’s view that, as a security guard, the Applicant was trained to deal with intoxicated and aggressive patrons and yet the manner he chose to dissuade the potential patron from entry to the club, namely an unprovoked push to the chest, and knew that it could not be justified; was not justified. Magistrate Viney, on 17 August 2009, said:

“In respect of this matter I note your plea of guilty, it is true that you do come before the Court, certainly as a person of prior good character, but a security uniform does not give you permission to touch anyone regardless of their reluctance to move on . You would be well aware of the fact that you have no authority to manhandle people in any way whatsoever and clearly had this gentleman hit the pavement any harder the consequences may well have found you in another jurisdiction facing a much more serious charge . So I am sure you will not be the first or last person to come before this Court thinking that a shove is not going to be too dramatic, but clearly the implications are huge.

I accept that there was the physical interaction with the victim was at the lower end of the scale, and at the time the victim was intoxicated. As I said, you need to develop other strategies for dealing with people, especially in your line of work, which ensures that you do not come back before this Court.” (Underlining added)

73 I am of the view that the above factors, when taken together, demonstrate that the assault, albeit only a push, was a serious assault offence. This Applicant acted in an unjustified aggressive manner causing injuries to the victim, and he did this whilst on duty as a security guard. Accordingly, I find that the assault was a serious assault offence which gives rise to an automatic revocation of the Applicant’s licence.

74 It is also my view that it is not in the public interest that the Commissioner’s revocation of the Applicant’s licence be set aside. The Tribunal has considered the concept of ‘the public interest’ in a number of decisions. In Commissioner of Police and Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, albeit in regard to a decision to refuse to issue a security industry licence:

“The public interest is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended the public interest discretion operate in areas to which the character ground was not relevant or, possibly in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal.”

75 ‘Public interest’ embraces standards acknowledged to be ‘for the good order of society and for the wellbeing of its members’: Director of Public Prosecutions v Smith (1991) 1 VR 63. Section 26(1)(d) of the Act includes ‘public interest’ as a ground for revocation of a security licence “to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the decision-maker’s consideration”: Comalco Aluminium (Bell Bay) Ltd v O’Connor and Ors (1995) 131 ALR 657 at page 681. The overall interest is therefore the interest of the public as distinct from the interests of the individual or individuals.

76 In Ibrahim Judicial Member Montgomery observed:

“The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O’Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6.”

77 In MU v Commissioner of Police [2004] NSWADT 197 at [23], the Tribunal regarded the Commissioner’s statement that the public interest “requires paramount consideration to be given to public safety” to be a correct statement of the law.

78 Working as a security officer may involve working “under pressure in unexpected and hostile circumstances”: O’Neill v Commissioner of Police [2005] NSWADT 130. A person who works in this industry, particularly at licensed premises late at night, is likely to encounter behaviour which is aggressive, provocative or otherwise challenging. A security officer must be able to respond to such situations without resorting to violence. The public expects that a person who holds a security licence is able to do so. While acknowledging that the Applicant is reliant on his income from his work as a security officer to maintain his mortgage given his wife’s recent loss of employment, this interest is not sufficient to outweigh the public interest in maintaining public safety and maintaining confidence in security officers.”

79 The character references provided by the Applicant from Lindsay Tetsill, Rodney Begg and Rowan Hancock all speak well of the Applicant in the performance of his duties and demonstrate an awareness of the circumstances in which the references were sought, namely the revocation of the Applicant’s security licence. I note the Respondent’s submission that these references were provided for the purpose of the Local Court proceedings and were provided at a time at which the Applicant was intending to vigorously defend the charges and did not take into consideration his subsequent decision to plead guilty to the charge of common assault. Of greater concern to the Tribunal in this context is the initial lack of candour of the Applicant with respect to the events of 20 March 2009 as revealed by his different later statements, made after viewing the CCTV footage. No explanation was provided for the disparity in these explanations, with the only inference being that but for the CCTV footage clearly showing a push, the Applicant would have maintained hat no push had occurred at all.

80 This fortifies the Tribunal in its view that the Commissioner’s decision to revoke the Applicant’s licence on public interest grounds is the correct and preferable decision. Accordingly, having regard to the interest of the whole community, I am of the view that it would be contrary to the public interest to permit the Applicant to hold a security licence and, accordingly, the decision under review is affirmed.

81 This view does not mean the Applicant should be prevented from re-entering the security industry at some time in the future if he does not re-offend. However, at this time it is not in the public interest for him to do so.

Orders:

82 The decision under review is affirmed.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR