Pavlovic v Commissioner of Police

[1999] NSWADT 117

CITATION:	Pavlovic -v- Commissioner of Police [1999] NSWADT 117
DIVISION:	General
APPLICANT:	Slobadan Pavlovic
RESPONDENT:	Commissioner of Police, NSW Police Service
FILE NUMBER:	993204
HEARING DATES:	11/04/1999
SUBMISSIONS CLOSED:	11/04/1999
DATE OF DECISION:	24 November 1999
BEFORE:	N Hennessy - Deputy President
PRIMARY LEGISLATION:	Security Industry Act 1997
APPLICATION:	Review of a decision to refuse to issue a security industry licence -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: R Dunn, solicitor of Robert T Dunn & Co Respondent: A Spajic, solicitor, NSW Police Service
ORDERS:	The decision of the Commissioner of Police to refuse the application for Class 1 and Class 2 security licences is affirmed.

Background

1 On 2 September 1999 Mr Pavlovic lodged an application with the Tribunal requesting a review of a decision made by the Commissioner of Police. The decision was to refuse Mr Pavlovic’s application for Class 1 and Class 2 security industry licences. At the request of Mr Pavlovic, the Commissioner’s delegate carried out an internal review of the decision. The internal review affirmed the original decision.

Jurisdiction

2 The Tribunal has power to determine this matter under s 29 of the Security Industry Act 1997 (the Act). Section 16(1)(b) of the Act states that:

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 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, whether or not the offence is an offence under New South Wales law. (Emphasis added.)
Applicant’s submissions

3 Mr Pavlovic’s solicitor, Mr Dunn, submitted that s 16(1)(b) of the Act requires that a formal finding of guilt be made by the court before the Commissioner is required to refuse his client’s application for a licence. The Local Court at Manly had found a charge of stealing proved against Mr Pavlovic on 29 August 1996 and discharged him under s 556A of the Crimes Act 1900 without proceeding to a conviction.

4 Section 556A states, in part, that:

Where any person is charged before any court with an offence punishable by such court, and the court thinks that the charge is proved but is of the opinion that . . . it is inexpedient to inflict any punishment or any other than a nominal punishment, or that it is expedient to release the offender on probation, the court may, without proceeding to a conviction, make an order either:

(a) dismissing the charge; or

(b) discharging the offender conditionally . . . (Emphasis added.)

5 Consequently the issue in this case is whether the words “has . . .been found guilty by a court (but with no conviction being recorded)” in s 16(1)(b) of the Act applies to the situation where a court “thinks that the charge is proved” under s 556A of the Crimes Act 1900.

6 Mr Dunn submitted that in order to come within s 16(1)(b) of the Act, a court must have made a positive finding of guilt, not merely a finding that the charge is proved. He agreed that the reference to a finding of guilt in s 16(1)(a) was probably a drafting error, but argued that the Tribunal must interpret the legislation strictly, especially since his client’s livelihood is at stake.

7 Mr Dunn referred to a decision of the President of the Tribunal, Judge O’Connor, in Bourke and ors v Commissioner of Police (unreported, 17/12/1998). His Honour said in that decision that the impact of the Security Industry licencing scheme “as reflected in appeals that are here this morning is clearly quite draconian in relation to circumstances where people have had quite minor past convictions.”

Respondent’s submissions

8 Mr Spajic, on behalf of the Commissioner of Police, submitted that the Local Court could not have thought that the charge was proved without impliedly finding Mr Pavlovic guilty. He supported this submission by referring to s 556B of the Crimes Act 1900 which states, in summary, that if a court is satisfied that a person has failed to observe any conditions of his or her recognizance, the court may convict and/or sentence the person for the offence with which he or she was originally charged. Mr Spajic argued that this section makes it clear that a court does not have to make a finding of guilt before proceeding to convict and/or sentence the person for the offence.

Principles of statutory construction

9 When interpreting legislation, courts and Tribunals must apply the ordinary, grammatical meaning of the words. Where more than one construction of the words is available, they must take into account the purpose of the legislation. Section 33 of the Interpretation Act 1987 states that:

In the interpretation of a provision of an act or statutory rule, a construction that would promote the purpose of object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule . . . ) shall be preferred to a construction that would not promote that purpose or object.

10 In most cases applying the ordinary grammatical meaning of the words will give effect to Parliament’s intention. But in some cases applying that meaning will frustrate Parliament’s intention. The words “has . . . been found guilty (but with no conviction being recorded)” in their narrowest sense, mean that a finding of guilt has been made, but no conviction has been recorded. This interpretation would lead to the conclusion that unless a court actually made a finding of guilt, s 16(1)(a) of the Act would not apply.

11 However, there is no difference is substance between a court making a formal finding of guilt and finding that the charge is proved. In both cases the court must be satisfied that each element of the offence has been proved beyond reasonable doubt. I agree with Mr Spajic’s submission that under s 556B of the Crimes Act 1900, a court does not have to make a formal finding of guilt before proceeding to convict and/or sentence the person for the offence. Consequently, although in a narrow sense the ordinary meaning of “has . . . been found guilty” would suggest a formal finding of guilt, those words are equivalent to a finding that the charge is proved. For these reasons the ordinary meaning of those words includes the situation where the court thinks the charge is proved.

12 If this conclusion is not correct, and the narrow meaning is accepted as the ordinary grammatical meaning, then the next question is whether this interpretation would promote the purpose or object underlying the Act. There are no express objects set out in the Act but the wording of s 16(1)(b) of the Act is very similar to the wording in s 556A of the Crimes Act 1900. Section 16(1)(b) uses the words “found guilty (but with no conviction being recorded)” whereas s 556A of the Crimes Act 1900 uses the words “the court thinks that the charge is proved . . . the court may, without proceeding to a conviction . . .” Because of the similarity of the wording of the two provisions I am satisfied that Parliament’s intention in enacting s 16(1)(b) was to make it mandatory for the Commissioner to refuse to grant a licence to a person who had been dealt with under provisions such as s 556A of the Crimes Act 1900 within the previous five years.

13 A narrow interpretation of the words in s 16(1)(b) of the Act would lead to a situation where people dealt with under s 556A of the Crimes Act 1900 would not be subject to mandatory refusal when applying for a licence. This interpretation would not promote the purpose of the legislation.

14 I do not accept Mr Dunn’s submission that a strict interpretation of the provision should be applied because his client’s livelihood is at stake. This submission was presumably based on an assumption that s 16(1)(b) is a penal provision or a provision which affects a person’s liberty. I am not satisfied that it falls within either of those categories because it does not create an offence or provide for a person to be detained. Even if the provision could be characterised as penal, I rely on my initial finding that the ordinary meaning of the words “has . . . been found guilty” applies to a situation where the court thinks the charge is proved.

15 In summary, I am satisfied that the ordinary meaning of the words in s 16(1)(b) of the Act cover the situation where the court thinks that the charge is proved. However, if I am wrong about that, I am satisfied that a narrow construction of the words should give way to a broader interpretation given the purpose of the provision. I do not think that the provision in question is a penal provision but even if it is the ordinary meaning referred to above should prevail.

Orders

16 The decision of the Commissioner of Police to refuse Mr Pavlovic’s application for Class 1 and Class 2 security industry licences is affirmed.