Potts v Commissioner of Police, NSW Police Force
[2013] NSWADT 114
•27 May 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Potts v Commissioner of Police, NSW Police Force [2013] NSWADT 114 Hearing dates: 21 August 2012, 20 May 2013 Decision date: 27 May 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed.
Catchwords: Security Industry Act - security industry licence -revocation of licence Legislation Cited: Administrative Decisions Tribunal Act 1997
Firearms Act 1996
Security Industry Act 1997
Security Industry Regulation 2007Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389.
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409
Ex parte Meagher (1919) 356 WN (NSW) 175
Lynch v The Commissioner of Police (GD) [2006] NSWADTAP 43
Hughes and Vale Pty Ltd v New South Wales (No.2) (1955) 93 CLR 127
Marjoribanks v Commissioner of Police NSW Police Force [2012] NSWADT 67
O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130Category: Principal judgment Parties: Kevin John Potts (Applicant)
Commissioner of Police, NSW Police Force (Respondent)Representation: T Healey (Applicant)
Harris Wheeler Lawyers (Applicant)
Bartier Perry Solicitors (Respondent)
File Number(s): 113159
reasons for decision
GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): This is an application for review of the determination by a delegate of the Commissioner of Police to revoke a security licence held by the Applicant under the Security Industry Act 1997 ("the Act").
The Applicant has worked in the security industry since the late 1970s. He was issued with his existing Class 1AF2B security licence in May 2009. On 31 March 2011, the decision was made to revoke that licence as it was considered that the Applicant is not a fit and proper person to hold such licence and it would not be in the public interest for him to do so.
The decision was made to revoke the Applicant's security licence based on an incident that occurred 14 October 2009 ("the October 2009 incident") involving the Applicant, Mr Troy Marjoribanks, and an alleged theft of a firearm from a security firm.
I have previously dealt with the issue of Mr Marjoribanks' security licence. My reasons for decision in that matter are recorded as Marjoribanks v Commissioner of Police NSW Police Force [2012] NSWADT 67.
As I noted in that decision, the parties are in general agreement in regard to the details of the October 2009 incident. It was alleged that Mr Marjoribanks took a Smith & Wesson 9mm Semi Automatic pistol ("the Smith & Wesson") belonging to his employer, Australian Consolidated Protection Services Pty Ltd ("ACPS"), when he was not authorised to do so. Mr Marjoribanks was found guilty of "Possess unauthorised firearm". It is common ground that the Applicant was directly involved in the incident. The Police Facts Sheet in relation to charges brought against Mr Marjoribanks provide an outline of the incident as follow:
"The accused is a long time employee of the victim company ACPS Securities. The accused is a licensed security operative and licensed to possess firearms being revolvers which are used within his employment. The father (POTTS) of accused is former Founder/Owner/Director of this company. There is at present civil proceeding between the current Directors of the company and POTTS in relation to control of company. The accused is also named within the company as a beneficiary. On the 14 October 2009 the accused was rostered for work at the security firm ACPS, at the end of his shift the accused attended the secure firearms storage area and returned the revolver he had used during his shift. At this same time the accused removed a Smith & Wesson 9mm Semi Automatic pistol from the locker. The accused has then left work and proceeded to the address of his father (POTTS) and has given him possession of the weapon.
The accused had previously been asked by POTTS to retrieve the firearm. POTTS had explained to the accused that this firearm was part of negotiated conditions of his removal from the company but as he had been refused any further entry to the building he was unable to retrieve this. The accused initially refused but on subsequent requests has agreed. The accused believed at the time of taking this firearm that his father (POTTS) had legal right to the firearm. POTTS at this time had a Certificate to Acquire this type of firearm. The accused after removing and delivering the firearm to POTTS has begun to feel that he may have done the wrong thing in the manner in which he has removed the firearm.
The firearm was not noticed to be missing until an audit on the 29th October 2009. ...
The firearm was given to Police by POTTS on request, but only the main assembly minus the barrel of the firearm remained as the barrel had been sent away to a gun smith for modification. ... The barrel of the firearm was presented to Police when it was returned to POTTS. The accused attended the Newcastle Police Station on appointment with POTTS as support person. ... The firearm in question being a Smith & Wesson 9mm Semi Automatic pistol will be subject to an ownership dispute as POTTS now has registration papers for that firearm. This matter may be subject to some civil proceedings in the future."
The Applicant has applied to the Tribunal for external review of the decision to revoke his security licence. Much of the delay in relation to the prosecution of this matter was the result of serious illness suffered by the Applicant.
A separate application was brought in relation a determination to revoke the Applicant's firearms licence but that application has been abandoned.
The Applicable Legislation
Section 63 of the Administrative Decision Tribunal Act 1997 provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 26(1A) of the Act provides that the Commissioner must revoke a licence where he is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
Section 15(1)(a) of the Act requires that the Commissioner must refuse to grant the application for a licence if he is satisfied that the applicant is not a fit and proper person to hold the class of licence sought by the applicant.
Clause 29 of the Security Industry Regulation 2007 provides that 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 Applicant's case
The Applicant relies on his own statements dated 29 May 2011 and 16 October 2012. He gave evidence at the hearing and was cross-examined. He has also filed a number of statements in support of his application. Those are the statements Troy Marjoribanks dated 29 May 2011; Adam Horsley dated 29 May 2011; Mark Lyons dated 29 May 2011; Greg Ford dated 29 May 2011; Raymond Brown dated 29 May 2011; Barry Sutton dated 29 May 2011; George Papanicolaou dated 29 May 2011; Vernon Wakeman dated 29 May 2011 and Anthony Lantry dated 29 May 2011. The Applicant also relies on letter of reference for Mr Marjoribanks provided by Stephen Smith, Great Lakes Area Manager dated 30 May2011.
The authors of those statements were not available for cross-examination and the evidence is therefore not tested. The statements have been admitted subject to weight.
The Applicant concedes his involvement in the October 2009 incident. He contends that he has undergone radiotherapy and chemotherapy treatment for his illness and that his illness and treatment impacted on his decision-making. Mr Healey submitted that the Applicant's conduct should be seen in that light and that it doesn't reflect his underlying good character.
The Applicant has operated in the security industry in a number of roles. He previously was a director of the company, Kevin Potts Security Services Pty Ltd ("KPSS"). In September 2001 KPSS purchased the Smith & Wesson for use in that company. KPSS went into insolvency in March 2003. In about August 2003 the Applicant, with Gary Neal and Stuart Mackaway, started up a new company called Australian Consolidated Protection Services Pty Ltd ("ACPS").
The Applicant was a principal of ACPS, through another company, Nova Bin Pty Ltd, and he was employed by ACPS as operations manager.
ACPS acquired property from KPSS. The Smith & Wesson was transferred to ACPS and was registered to ACPS. Notwithstanding the transfer and registration of the Smith & Wesson to ACPS, the Applicant asserted that he always believed that he was the owner of the Smith & Wesson. He still believes that he is the owner of the Smith & Wesson.
In his statement dated 16 October 2013 the Applicant stated (paragraph numbering removed):
"On or about August 2008 I was employed by ACPS as the Operations Manager of that company.
At this time I had a conversation with the accountant Barry Lindbeck. I said to Barry words to the effect:
"I have tendered my resignation from ACPS. I want Stuart and Gary to buy out my shares as per the agreement"
That conversation involved this topic as well as what property I wanted from ACPS upon resignation. Discussed as part of that conversation was:
1.Number plates for the car.
2.Two mobile phones.
3.Two landlines.
5.Two safes.
Money that was outstanding and owed to me by ACPS.
6. At that time I observed Barry Lindbeck to send an email to Stuart and Garry about the property I wanted following my resignation.
Following this conversation, and at a later time that I would estimate at approximately three to four weeks, I met with Mr Stuart Mackaway at the ACPS offices.
At that time I had a conversation with Mr Mackaway and we came to an agreement concerning the following:
a.Two phone lines,
b.Two mobile phones,
c. Number plates,
d. A mail box,
e. Two safes,
f. Firearms (that included a gun, that gun being the subject of these proceedings).
Stuart Mackaway and I agreed that I was not to have any revolvers.
As part of this conversation I agreed to pay for the firearms and the gun safes to store in. Following this conversation I made those payments to the company.
I was authorised to and did attend on the cash room of the ACPS premises and paid the relevant monies to ACPS. Annexed hereto and marked "A" is a cheque in the amount of $500.00 that I paid to ACPS for a Chubb Cash Safe. Annexed hereto and marked "B" is a cheque in the amount of $1,000.00 that I paid for a Smith & Wesson pistol, the gun which is the subject of these proceedings.
After writing up the cheques and putting them with the ACPS banking, I issued receipts for each item and printed that off myself. Annexed hereto and marked "C" is two receipts, one for $500.00 and one for $1,000.00.
At this time I was still the Operations Manager and there was no issue in relation to me organising to have the monies paid and receipted.
Following this, believing to the best of my knowledge that all matters had been sorted, I went on holidays.
Upon returning from holidays, before getting in contact again with ACPS, I went and obtained two permits to acquire from the Firearms Registry, one of which related to the Smith & Wesson pistol I had purchased. I needed to have these permits before collecting the pistol.
It was always my intention, knowing that I was unable to personally possess the Smith & Wesson pistol, to take the firearm to a dealer to be altered to such an extent that I could possess it.
To the best of my knowledge I was able to transport the firearm to a dealer for the purpose described in the above paragraph in accordance with my license authority. ...
Following receipt of the permits to acquire, I found that I was locked out of the premises of ACPS and that I was unable to obtain those items which we discussed and for which I had paid for.
This was an issue as, not only had I never been terminated or notified of termination, I was unable to access the items that I had paid for.
I attempted to contact Stuart Mackaway on a number of occasions by telephone. On each occasion he either ignored my calls, or, when he did answer them, he told me that what we had agreed was not right concerning the company shares.
At some point after these conversations I attended the ACPS premises and unscrewed the number plates which I paid for and took them and handed them into the RTA.
The ACPS premises were located in property of which I was a co-owner.
I was also a shareholder, though not a director, of ACPS.
I organised for Mr Majoribanks to obtain the firearm for which I had paid for and was the owner, so that I could take that to a firearms dealer to have it altered and transferred into my name."
Before the Tribunal the Applicant stated that it was never his intention at any time to relinquish ownership of the Smith & Wesson. It was registered to ACPS so that it may be used for business purposes. However, he contends that in registering the pistol with ACPS he did not relinquish ownership of the pistol.
The Applicant stated that he has not received any remuneration or any consideration from any other party that would otherwise lead him to believe that the ownership of the pistol had been transferred.
He contends that as of 14 October 2009 he was employed as Operations Manager of ACPS and he therefore had authority to deal with the Smith & Wesson.
The Applicant maintains that at all times he was acting on an honest and reasonable belief that he was the owner, or at the least had a claim of right to, the Smith & Wesson.
He made no attempt to secret the firearm once it came into his possession and transported it directly to a dealer and filled out what he understood to be the relevant paperwork for the firearm transferred into his name.
Many of the authors of the witness statements on which the Applicant relies are provided by former employees of ACPS who stated that they also understood that the Smith & Wesson belonged to the Applicant.
In about 2008 there was a breakdown in the relationship between the Applicant and other ACPS directors and he was shut out of the workplace.
In October 2009 the Applicant persuaded Mr Marjoribanks to obtain the Smith & Wesson for him. He regrets having involved Mr Marjoribanks in the process.
He gave evidence in regard to how he has been affected by his illness. This included memory loss and poor decision-making. However, under cross-examination he conceded that he was not so affected by his illness in October 2009 that he was not aware of his actions. He knew right from wrong. His evidence was that he acted in retaliation towards the other directors - as a way of 'rubbing their noses in it'.
He maintains that he committed no wrongdoing and seeks the return of his security licence.
He stated that his health has improved and he now wishes to work in the security industry again. He seeks to have his licence returned to allow him to do so, to the extent that his health will permit.
Mr Healey submitted that the Applicant has held a security license without cause for concern and that the decision revoking his licence should be set aside and replaced by a decision of the Tribunal to return the licence.
The Commissioner's case
The Commissioner disputes the Applicant's assertion that he ever owned the Smith & Wesson and relies on documentation to show the various transfers for that firearm. While the Smith & Wesson has been registered to KPSS and ACPS it has never been registered to the Applicant.
The Commissioner also disputes the Applicant's evidence that he purchased the Smith & Wesson from ACPS on 9 October 2008.
The Commissioner relies on the statements of Stuart Mackaway and Gary Neal as support for the position that the Applicant did not have an agreement with anyone at ACPS to purchase the Smith & Wesson from ACPS on 9 October 2008.
The Commissioner also contends that the Applicant created false receipts purportedly for the purchase of the Smith & Wesson and that those are not ACPS' receipts. In support of that assertion the Commissioner relies on the statements of Stuart Mackaway, Gary Neal and Jullie Brown.
Ms Brown was employed by ACPS in 2008 -2009 performing administrative and accounting duties. In her evidence she explained the accounting system used by ACPS and notes that there were no payments for the Applicant's cheques in general accounts for ACPS. It is not in dispute that ACPS received the Applicant's cheques. However Ms Brown contends that the Applicant collected $1500 in cash i.e. he simply converted the cheques to cash.
The Commissioner contends that Ms Brown's evidence supports the assertion that ACPS did not receive payment for the Smith & Wesson on 9 October 2008. The Applicant did not pay any money for the purchase of the Smith & Wesson on 9 October 2008 and had no entitlement to the firearm.
The Commissioner also contends that the Applicant was not authorised by any Permit to Acquire or licence to purchase the Smith & Wesson from ACPS on 9 October 2008; and that the Applicant was not authorised to take possession of the firearm on 14 October 2009. On 14 October 2009 the Applicant was performing unarmed licensed security duties for a company that did not hold a business firearms licence.
These issues are not in dispute but are supported by evidence from Mr Lawrence Campbell and Ms Carol Connor.
The authors of the statements in evidence on which the Commissioner relies were not required for cross-examination. In that regard the evidence is uncontested.
The Commissioner submits that the Applicant's story is simply unbelievable and demonstrates that he is not entitled to a security licence.
However, the Commissioner also submits that the revocation of the Applicant's security licence is justified even on the Applicant's version of events.
The Commissioner contends that the Applicant's conduct was in contravention of a litany of legislative provisions, including:
- the Applicant had no authorisation to purchase the Smith & Wesson on 9 October 2008 as he had no permit to acquire at all, nor did he have a licence for prohibited pistols: section 50 of the Act;
- as the Smith & Wesson was a prohibited pistol, the Applicant should not have had it in his possession on 14 October 2009 as he was not authorised by licence or permit: section 7(1) of the Act;
- on 14 October 2009 the Applicant was working for Maitland Security but he was not working as an armed guard and Maitland Security was not a firearm licence holder. The Applicant should not have had the Smith & Wesson in his possession on 14 October 2009: section 7A(1) of the Act and clause 72 (b) of the Regulations; and
- given the status of the Smith & Wesson as a prohibited pistol, and the Applicant's lack of authority to have it, the Applicant breached section 60 of the Act by not immediately surrendering it to police on 14 October 2009.
The Commissioner also contends that the Applicant inappropriately persuaded Mr Marjoribanks to take the Smith & Wesson from ACPS in circumstances when he must have known, and knew, that Mr Marjoribanks would be breaching his duties as a licensed firearm and security holder. The Applicant must have known, and knew, that he could not take possession of a prohibited pistol especially when he was on duty.
Mr Mattson submitted that the Applicant's conduct demonstrates that he acts in self-interest rather than placing any importance on his legislative obligations.
Mr Mattson further submitted that the Applicant shows no, or little, remorse for his actions, seeking to justify taking matters into his own hands because ACPS allegedly denied him his property and that his actions were a way of 'rubbing their noses in it'. Mr Mattson submitted that while the Applicant concedes that he could have handle things better he does not admit that he should not have taken possession of the Smith & Wesson as it was in breach of the Act; he maintains no wrong doing in this regard.
Mr Mattson submitted that the Applicant couldn't be trusted to act honestly and in compliance with his legislative obligations as demonstrated by his conduct, not only in 2008 and 2009, but also by the approach he has taken in these proceedings.
Accordingly, the Commissioner contends that the decision to revoke the Applicant's licence ought to be affirmed.
Consideration
The Commissioner asserts that the Applicant is not a fit and proper person to hold a security licence and that it is not in the public interest that he does so.
The facts are not in dispute with respect to the October 2009 incident. It is common ground that the Applicant persuaded Mr Marjoribanks to take the Smith & Wesson from ACPS. The Applicant contends that he owned the Smith & Wesson and that ACPS refused to give it to him.
He does not dispute the documentation showing that the Smith & Wesson was never registered to him. It was purchased by KPSS and transferred to ACPS. The Applicant's contention of ownership appears to be the result of a mistaken belief that KPSS was not a separate entity. He apparently regarded the property of KPSS as his own property and that the registration of the Smith & Wesson in the name of KPSS was purely a means of technical compliance with the registration requirements of the Firearms Act 1996.
I accept that the Applicant held this mistaken belief.
However, the Applicant's belief did not justify his actions with respect to the October 2009 incident.
The appropriate action would have been to commence legal proceedings against ACPS in relation to the ownership of the Smith & Wesson. He gave no explanation in regard to why he did not do so. In contrast, he did give evidence of other proceedings that were taken against ACPS that he said were found in his favour.
There is conflicting evidence in regard to the alleged agreement between the Applicant and Mr Mackaway in regard to the Smith & Wesson. I note that Mr Mackaway was not required for cross-examination and therefore his evidence is unchallenged. The Applicant's conduct on 14 October 2009 suggests that there was no agreement between them, however in the circumstances I do not need to determine that issue.
There is also conflicting evidence in regard to the Applicant's assertion that he paid for the Smith & Wesson in October 2008. I also note that the Commissioner's evidence is unchallenged in that regard. Even if the Applicant's evidence is accepted, I have difficulty in reconciling his assertion that he made payment for the Smith & Wesson with his assertion that he already owned it.
I also have difficulty in reconciling the Applicant's assertion that he was employed as the Operations Manager of ACPS at 14 October 2009 with the evidence that shows that at that time he was no longer allowed onto ACPS premises. By his own evidence he had tendered his resignation in August 2008. He nevertheless purported to act on behalf of ACPS in relation to the Smith & Wesson. In my view it is implausible that he would be authorised to take and sell the Smith & Wesson in those circumstances.
I agree with the Commissioner that the Applicant's conduct has demonstrated a disregard for his licensing obligations. He placed his own interests ahead of his duties as a licensed security officer. He also breached various obligations in the firearms legislation designed to tightly regulate the use of firearms by security officers.
The Applicant has not been charged or found guilty of any criminal offence. However, as noted in Lynch v The Commissioner of Police (GD) [2006] NSWADTAP 43 at paragraph [47] the fact that an individual has escaped a criminal conviction does not mean that he should therefore automatically escape an administrative sanction against his licence.
I agree with the Commissioner that the Applicant took matters into his own hands in circumstances when he knew, or ought to have known, that Mr Marjoribanks would be breaching his duties as a firearm and security licence holder. I also agree that in doing so he placed his self-interest ahead of Mr Marjoribanks' interests and his legislative obligations.
This is inconsistent with the high standards of conduct that are required of licensees in the security industry. It is critical to public safety that licences are only held by responsible persons who can be trusted to adhere to all of their obligations under the legislation.
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 i.e. 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 interests of the whole community must be considered.
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.
The concept of 'fit and proper' includes a person's moral integrity and rectitude of character so that they can be trusted by the public to hold the relevant licence: Ex parte Meagher (1919) 356 WN (NSW) 175 at 179.
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.
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.
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.
High standards of conduct are required of licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. Competence, integrity and accountability are characteristics required of security licensees.
A significant period of time has now passed since the October 2009 incident. However, it does not appear that the Applicant has gained any awareness of the significance of his actions or their relevance to his role as a licensed security officer. In my view, he should not be permitted to hold a licence in the industry until such time as he is able to demonstrate that awareness.
In the circumstances, it is my view that the decision to revoke his licence was the correct and preferable one and therefore it should be affirmed.
Order
The decision under review is affirmed.
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Decision last updated: 27 May 2013
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