Nakad v Commissioner of Police NSW Police Force

[2013] NSWADT 169

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169
Hearing dates:	10 April 2013
Decision date:	29 July 2013
Jurisdiction:	General Division
Before:	Naida Isenberg, Judicial member
Decision:	The decision under review is affirmed
Catchwords:	Security licence - fit and proper person
Legislation Cited:	Security Industry Act 1997 Security Industry Regulation 2007 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 Ibrahim v Commissioner of Police [2010] NSWADTAP 29 Krzeminski v Commissioner of Police, NSW Police Force [2003] NSWADT 8 Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389 Australian Broadcasting Tribunal v Bond HYPERLINK " \o "View Case"[1990] HCA 33 Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 Re Percival and Australian Securities Commission (1993) 30 ALD 280 Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 Stranges v Commissioner of Police [2004] NSWADT 221 Teleafoa (No 2) v Commissioner of Police [2000] NSWADT 48 Carter v Commissioner of Police [2005] NSWADT 265 Infarinato v Commissioner of Police [2004] NSWADT 43 Sawires v Commissioner of Police [2010] NSWADT 4 IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230 Rowe v Commissioner of Police [2010] NSWADT 307
Category:	Principal judgment
Parties:	Andre Nakad (Applicant) Commissioner of Police, NSW Police Force (Respondent)
Representation:	Counsel T Edwards (Applicant) Bartier Perry (Respondent)
File Number(s):	123190

reasons for decision

Background to the application

1. On 21 March 2012, whilst performing his duties as a licensed security guard, Andre Nakad, the Applicant, struck at a patron at Charlie Chan's nightclub, the all-night venue where he worked. He was charged with assault but was acquitted. On 2 July 2012, whilst performing his duties as a licensed security guard, the Applicant struck a patron. He was found guilty of assault and received an order under s.10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 ('s.10(1)(a) order') whereby no conviction was recorded. He appealed without success.

1. As a result, his Class 1AC Security Licence was revoked. He now seeks a review of the Respondent's decision to revoke his security licence.

1. The Respondent's revocation decision was based on the grounds that:

The Applicant is not a fit and proper person to hold a security licence: s.26(1A) and s.15(1)(a) of the Security Industry Act 1997 ('the Act')

The Applicant was, in the opinion of the Respondent, found guilty of a serious assault offence: s.26(1A) and s.16(1)(b) of the Act with cl.18(1)(c)(ii) of the of the Security Industry Regulation 2007 ('the Regulation')

it is not in the public interest for the Applicant to continue to hold a security licence: s.26(1)(d) of the Act and cl.29 of the Regulation

Relevant Legislation

1. Section 26(1A) provides that a licence must be revoked a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by the Act to be refused.

1. Section 15(1)(a) sets out general suitability criteria for a licence. An application must be refused if the Commissioner is not satisfied that the Applicant is not a fit and proper person to hold the licence.

1. Section 16(1)(b) provides that an application for a licence must be refused if the Commissioner is satisfied that the Applicant has, within the period of 5 years before the application for the licence, been found guilty (but with no conviction being recorded) of an offence prescribed by the regulations in relation to the class of licence sought. Regulation 18 refers to offences that disqualify Applicants which includes, relevantly, where the Applicant has been found guilty but not been convicted of an offence that, in the opinion of the Commissioner, is a serious assault offence.

1. A licence may be revoked for a reason prescribed by the regulations: s.26(1)(d). Clause 29 of the Regulation provides that a licence may be revoked if the Commissioner, or the Tribunal on review, considers that it is not in the public interest for the person to whom a licence is granted to continue to hold it.

1. The scheme of the Act is therefore that revocation is mandatory in the event I find that the Applicant is either not a fit and proper person to hold the licence, or that within the period of 5 years before the application for the licence, he has been found guilty (notwithstanding no conviction was recorded) of a serious assault offence. His licence may still be revoked if I find that it is not in the public interest for the Applicant to continue to hold the licence.

ISSUES FOR THE TRIBUNAL

Is the Applicant a fit and proper person to hold a security licence?

Was the Applicant found guilty of a 'serious assault offence'?

Is it in the public interest for the Applicant to continue to hold a security licence?

EVIDENCE

1. The Respondent tendered the CCTV footage in respect of each of the incidents, and invited the Tribunal to come to its own view about the conduct depicted on the film.

1. The Applicant provided a transcript of the criminal proceedings in relation to the 21 March 2012 incident ('the first incident'); and a transcript of the criminal proceedings (including sentencing) in relation to the incident on 2 July 2012 ('the 2nd incident').

1. The Respondent tendered the transcript of the stay application before DP Hennessey on 16 July 2012 and the Applicant's criminal record.

1. The Applicant provided an affidavit dated 16 January 2013. He also gave oral evidence. He said he would work nearly every night at Charlie Chan's. He had witnessed many violent incidents, including a murder and on more than a dozen occasions he had provided statements to police. He himself was a victim of assault and on 7 - 8 occasions and had provided a statement to police. He had never refused a police request to attend court as a witness.

1. In relation to the first incident he said that when the patron had tried to grab his licence from around his neck he told him to go away and waved him away. He denied striking him. He said he never left the step or went forward. He said that his actions were not inappropriate or 'over the top'. However if the incident occurred again he would step back, call management and the police.

1. He said that by the time of the 2nd incident he knew he was being charged in relation to the first incident, and that, irrespective of criminal charges, his licence may be at risk if he struck a patron. He said the events associated with the incident all happened very quickly. He said he had escorted the patron off the premises when he had tried to smash a glass several times. When the patron returned he thought he was going to attack him, because he had been attacked in the past, including by someone using a metal bar. The patron had one hand in his pocket; he said he thought he may have had a knife. He thought the patron was calling his many friends to come. He adamantly denied he struck the patron with force but said he had pushed him, although he did not mean to. He did not agree that striking could cause serious injury, because he did not consider he had struck the patron, only pushed him. He said he should have stepped back, locked the door and called the police, but it was all too quick. His decision was rushed and it was wrong. He expressed regret and denied he was doing so only because he had lost his licence because of the incident. He agreed that his training was to move unwanted patrons by the use of words.

1. Evidence was also given by Dragica Zelkovic, the licensee of Charlie Chan's, and Lap Heng ('Max') Lee, the duty shift manager who manages the security staff. Both were played the CCTV footage at the hearing.

1. Ms Zelkovic had provided a character reference for the Applicant for the Local Court proceedings and this was tendered before me. Relevantly she wrote that she relied on security guards to get to know patrons (which she regarded as outstanding customer service), see situations before they escalate, and create a safe environment for staff and patrons. The Applicant's responses to difficult situations are quick, well thought out and decisive. She had witnessed him remove many patrons in the previous 2 years and refuse entry at the door to hundreds every weekend. He does so politely, with respect and even if the patron is aggressive, he manages to build such a rapport that the customers leave happy.

1. In her evidence she said that she did not usually provide support to security staff as she has done on behalf of the Applicant; she regarded him as a true asset, and he is her security guard of longest-standing. She said he treats refused patrons with respect. As to how he dealt with violent patrons she said he puts himself between them and the customers - to whom he owes a 'duty of care' - thereby ensuring all customers are safe. He is instructed to ask unwanted patrons to leave and this was what she observed on the CCTV, and this is what he has always done, as far as she knows.

1. In cross-examination she said she had never held a security licence herself but knew security guards are trained not to have a situation escalate and to diffuse the situation. She said that at Charlie Chan's, customer service comes first. She said that if there is an aggressive and argumentative patron the security guard is expected to call the police. She said she would be concerned if a security guard punched or struck a patron. She agreed that what he had done was not 'well thought out and decisive' and was inappropriate.

1. She agreed in relation to the first incident that the Applicant had struck at a patron and that this was not appropriate. She thought it was possibly excessive, but thought the Applicant had been provoked. She agreed the situation had the potential to escalate. She agreed that the behaviour was not that expected of a licensed security guard, however she thought his conduct was consistent with the duty of care he owed to customers.

1. She had not previously seen the 2nd CCTV footage. She said that the CCTV showed the Applicant talking to the patron, calling in another security guard and that the patron then walked away and that that was a good example of the Applicant diffusing a situation. She agreed that when the patron returned, and the Applicant walked towards him and struck him, the Applicant's actions were not appropriate, were excessive and not the behaviour expected of a licensed security guard. However, when a patron returns after having been evicted they can be aggressive. She thought the patron was trying to provoke the Applicant. She did not expect that the Applicant would have done anything like she observed in that footage.

1. She said what the Applicant had done was wrong on those two occasions but maintained though that the Applicant still had the capability to diffuse situations by talking to patrons as she had seen him do 'thousands [of times] every day'.

1. Ms Zeljkovic did not think the Applicant would repeat the conduct because he had too much at stake in the risk to his job. However she was not now confident that it would not happen again.

1. Mr Lee said he worked 4-5 nights per week, while the Applicant worked most nights. He said because it is a late-night venue many patrons are drunk when they arrive after the closure of other venues. The security guard has to assess the level of intoxication and decide if to refuse entry, which the Applicant does with professionalism - he has often seen the Applicant do this. Normally the Applicant explains that they are refused entry. If it is before 4am he suggests they go elsewhere and if after that time suggests they just go home. The Applicant is usually really good at getting them to leave. If there is a violent patron they are escorted from the venue. He considers the Applicant does his job really well. He knows the customers and who may become violent. He is good at identifying drunks - even if they don't realise themselves that they are drunk - and efficiently removes them. The Applicant has assisted him when he is trying to remove someone and the Applicant has helped him on 2 occasions when he has been attacked.

1. He was inside the night of the 2nd incident. He said the Applicant's conduct was inappropriate but it was a mistake.

1. In cross-examination Mr Lee said he had never held a security licence but was aware the training included conflict management and that security guards are required to diffuse, not escalate, situations. He said the Applicant had acted contrary to his training in striking a patron. If a patron becomes aggressive the security guard should call the police.

1. He said in relation to the first incident it was not an unusual situation. People always argue and only if the situation is serious does he call the police. After viewing the CCTV footage he was not sure if the Applicant struck the patron, but he agreed that the patron was pushed, although he was not sure if it was forceful. He agreed the push could have escalated the situation. He thought the patron tried to take the Applicant's licence. He said had the patron had not moved 15-30 metres away he would have called the police. He said this was probably the first time he had seen the Applicant push a patron.

1. As regards the 2nd incident, he agreed that the Applicant's actions were inappropriate and 'over the top'. He said he was surprised that the Applicant had struck a patron on that occasion because he was aware the Applicant had by that time, been charged in relation to the first incident.

1. He said that he is responsible for the security guards at the premises and has some concern if the Applicant were to return to duty.

CONSIDERATION

Is the Applicant a fit and proper person to hold a security licence?

1. The Tribunal's discretion as to whether a person is fit and proper is a broad one: Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389.

1. In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, Mason CJ explained, at 380, that:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

1. Toohey and Gaudron JJ said at 380:

The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

1. A person's fitness is to be considered in the light of the activities that the person will undertake: see Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127 at 156-7, Re Percival and Australian Securities Commission (1993) 30 ALD 280, at 290, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALD 794 at [41].

Incident of 21 March 2012 ('first incident')

1. The Respondent invited me to find that the CCTV footage shows:

The victim has both hands in his pocket and was not aggressive;

In a non-aggressive manner, the victim had a look at the Applicant's identification displayed publicly on a lanyard;

The victim placed his hands fully back in his pockets;

There was then some short discussion, and time passes;

The Applicant, with a full back swing, then punches or strikes at the victim in the head with his left fist; and

The Applicant showed no remorse afterwards, but rather satisfaction.

1. In the stay application and before me the Applicant denied that he had struck the patron. Barkell LCM found that the Applicant had struck the complainant with an open-handed slap. She also found that the Applicant had used some force against the complainant. The Respondent submitted that the strike to the victim, however described, the contact was aggressive and violent and not becoming of a licenced security officer.

1. Barkell LCM, in acquitting the Applicant on the basis that there was a reasonable possibility that he had acted in self-defence, found the incident had occurred in circumstances where the complainant had previously been asked to leave, had probably been complicit in his friend providing the Applicant with fake identification, had previously grabbed the identification of the Applicant, had been warned not to do so again and had proceeded to grab the identification once again.

Incident of 2 July 2012 ('second incident')

1. The Respondent invited me to find that the CCTV footage shows:

A patron is contesting, verbally, being escorted out of the hotel;

A security officer (not the Applicant) properly de-escalating the situation with the patron;

The patron walks away and later returns to discuss the matter. The patron has one hand in his pocket and is holding a mobile phone in the other hand;

The patron is simply talking to the Applicant;

The Applicant steps towards the patron;

The Applicant, with a full back swing, punches or strikes the victim in the head with his left fist; and

The Applicant showed no remorse afterwards, but rather satisfaction.

1. The Respondent referred to the Applicant's evidence at the stay application that "I didn't hit him, like he come, I think he going to attack me. I just tried to block". Before me the Applicant adamantly denied he struck the patron with force but said he had pushed him, although he did not mean to. The Respondent asked me to observe from the CCTV footage that the victim had a hand in his pocket and a mobile phone in the other hand; the victim is talking; there was no imminent attack or otherwise; the Applicant approached the victim, walked towards him and struck him; and the victim was not striking at the Applicant such that he was required to block an attack on him.

1. The Respondent referred to several authorities in support of the assertion that the Applicant is not a fit and proper person to hold a security licence. The Applicant noted that an analysis of these authorities reveals in every case conduct more serious than that for which the Applicant has been convicted. For example in Stranges v Commissioner of Police [2004] NSWADT 221, the Applicant had punched the victim in the face with a broken bottle requiring the victim to have a number of stitches to his face. He was convicted of malicious wounding and sentenced to a 300 hour community service order. He was also found to have lied on an application form regarding the conviction.

1. Similarly, in Teleafoa (No 2) v Commissioner of Police [2000] NSWADT 48 the Applicant had been convicted of assault police, resist arrest (two counts), and offensive conduct and been placed on an 18 month supervised bond for those offences. Part of the assault involved the grabbing and swinging around of his four-month old child causing the child bruising and causing injury to a police officer when she attempted to persuade him to drop the child. The Applicant was again convicted of a further count of common assault in the course of working as a security officer and placed on a further bond to be of good behavior. The assault involved at least caused the victim a bleeding nose and possibly a number of chipped teeth. He also had numerous traffic offences, dishonesty offences, and had been convicted of a total of 16 criminal offences. He was found not to be a fit and proper person to hold a security licence, given his disregard for the law and his dishonesty, as well as his inability to control his anger while working as a security guard.

1. In Carter v Commissioner of Police [2005] NSWADT 265 the Applicant received a 12 month good behaviour bond for common assault and his licence was revoked following the conviction. In addition to the offence for which he was convicted, he used abusive language on numerous occasions towards law enforcement officers, and there was some evidence of a long history of behaviour that had attracted the attention of the police. At [15] the Tribunal quoted from Sobey v Commercial Agents Board [1979] 22 SASR 70 as follows:

Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded of crucial importance. I would not go as far to say that one criminal offence must necessarily deprive a person of that fitness....

1. In Krzeminski the common assault involved a threat to kill, and the threat being repeated when the Applicant was armed with a kitchen knife, which the Tribunal described as "potentially a very dangerous weapon". The charge had been proven but dismissed pursuant to Section 556A Crimes Act 1900 - the precursor to s.10 Crimes (Sentencing Procedure) Act - notwithstanding that on sentencing the offence was said to have comprised "very serious conduct."

1. In Infarinato v Commissioner of Police [2004] NSWADT 43 the Applicant had been convicted of common assault and of driving a vehicle in manner that menaces another. There were also a number of police reports of similar incidents.

1. In Ibrahim v Commissioner of Police [2010] NSWADTAP 29 the Applicant had pleaded guilty to common assault and was given a s.10 bond for a period of 12 months. It was noted that this penalty is less severe than the s.10 dismissal imposed on the Applicant. The Tribunal determined the assault constituted a "serious assault offence". The assault involved injuries to the victim, photographs of which formed part of the police brief and were central to the determination of the Tribunal that the offence involved a "serious assault offence." The Appeal Panel considered the Tribunal had not erred in taking account of the injuries suffered by the victim. No injuries were relied on in the present matter.

1. Even if I were to accept the Respondent's interpretation of the two incidents, I agree with the Applicant's submission that the Applicant's conduct is well short of that in the cases upon which the Respondent relied.

1. When Barco, LCM sentenced the Applicant, he noted:

The complainant had been intoxicated and obnoxious inside the premises and had been asked to leave.

Prior to the complainant being escorted from the premises the Applicant had acted in acted in a "cool and level headed" manner with the complainant and had at one stage put his hand on the complainant back to warn him in a friendly gesture.

That once being escorted the footage clearly showed that the complainant was being restrained by his friends not to return to further remonstrate with the Applicant.

That his return was "the straw that broke the camel's back" and the effect was that the Applicant had a "momentary loss of control" and a "split second loss of control" where he struck the victim.

That striking was an "open handed slap" to the head that the complainant immediately rose from.

He had "complete confidence" that the Applicant would not be before the Court again.

That the offence was "very much at the lower end" of common assault matters.

That the complainant was uncooperative to police (and did not come to Court in answer to his subpoena) and evidence showed him returning to the premises some time later to apologise for his conduct.

The Previous Character of the Applicant

1. In terms of whether the Applicant is a fit and proper person to hold a security licence the Applicant submitted that the "momentary loss of control" involved in the second incident should be looked at in the context of his seven year career in the security industry, the positive esteem with which those in the industry view him, as evidenced by the references tendered on sentence, and his repeated efforts to assist police in the facilitation of justice through providing witness statements and giving evidence on behalf of the police when required to do so.

1. The Applicant had been working in the security industry for a period of approximately 7 years prior to the first incident and I accept that prior to that time the Applicant, despite working in an environment of frequent confrontation, showed appropriate restraint when confronted with potentially violent patrons. I further accept that he was a respected employee who held a position of authority within the security industry.

1. In his affidavit and his evidence the Applicant said that he deeply regretted his involvement in these events and I accept that the revocation of his licence has had a salutary effect on him.

1. The question though is whether, having had his licence revoked for a period, would lead him to act with considerably more restraint when confronted by unruly patrons in the future. It is noted that, when sentencing the Applicant the magistrate stated that had "complete confidence" that the Applicant would not be before the Court again, although it was unclear to me on what basis he had come to that view. For example, Ms Zelkovic, who had provided a very positive reference, did not have the full facts of the matter when she provided her reference.

1. It was submitted that the Tribunal would not consider, despite the finding of guilt, that the Applicant has a disregard for upholding the law. There was evidence that prior to these matters the Applicant had provided evidence for the prosecution of offenders where he had been a witness and had otherwise assisted to police in investigating the commission of offences. The Applicant asked that this be taken into account when determining whether he is a fit and proper person to hold a security licence. I place little weight upon this aspect of his prior conduct, as being a witness and assisting police is, in my view, doing no more than is his civic responsibility.

1. Ms Zelkovic relies on security guards to see situations before they escalate, and create a safe environment for staff and patrons. Her view of the Applicant, overall was a positive one and she spoke highly of his quick, well thought out and decisive responses to difficult situations. However, she said that what the Applicant had done was not 'well thought out and decisive' and was inappropriate.

1. In relation to the first incident she thought his response was possibly excessive, but thought he had been provoked. The situation had the potential to escalate and the behaviour was not that expected of a licensed security guard. As to the second incident she considered the Applicant's actions were not appropriate, were excessive and not the behaviour expected of a licensed security guard. Again, she thought the patron was trying to provoke the Applicant.

1. Ms Zeljkovic did not think the Applicant would repeat the conduct because he had too much at stake in the risk to his job. This was precisely the situation the Applicant was in after the first incident and yet, for whatever reason, engaged in similar, or probably worse behaviour in the second incident, less than four months later. Mr Lee made precisely that point. Having seen the CCTV Ms Zelkovic was not now confident that it would not happen again.

1. Mr Lee also was very supportive of the Applicant. He acknowledged that the push could have escalated the situation. He considered the Applicant's conduct in relation to the second incident to have been was inappropriate, but it was 'a mistake'. The Applicant had acted contrary to his training in striking a patron rather than calling the police. He has some concern if the Applicant were to return to duty.

1. The Applicant conceded that his conduct was completely unacceptable and criminally wrong. He also accepted that the fact that the offence occurred in the course of his duty as a security officer would be a matter of significant concern for the Tribunal.

1. The Tribunal has said many times that a security licence is a privilege and not a right. It is imperative that the security industry is licensed by professional and responsible individuals that can achieve high standards of conduct required by the special nature of the industry: IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230 at [27].

1. The Security Industry Act 1997 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: Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11].

1. It is clear from the CCTV footage that the Applicant struck or stuck at a patron on two separate occasions in circumstances where such action was unnecessary. That the Applicant struck patrons whilst working as a licensed security officer increases the gravity of his conduct: Rowe v Commissioner of Police [2010] NSWADT 307 at [22].

1. The Applicant has demonstrated in conducting his duties as a security guard he cannot be trusted to act professionally, responsibly and without risk to public safety.

1. I accept that the Applicant has a good record. However between March and July last year he had two assault charges. It may be that each event was precipitated by the conduct of others as the Applicant claims. It remains, however, that he retaliated when provoked. Based on the facts and circumstances set out above, I cannot be confident that the Applicant would not again retaliate.

1. I find that the Applicant is not a fit and proper person to hold a security licence: s.26(1A) and s.15(1)(a) of the Security Industry Act 1997.

1. Having come to that view it was not necessary to consider whether the Applicant was found guilty of a 'serious assault offence' or whether it is in the public interest for the Applicant to continue to hold a security licence.

DECISION

1. The decision under review is affirmed.

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