Schomburgk v Holmes No. Dcaat-96-69 Judgment No. D3586

[1997] SADC 3586

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Pirone, Mr Krumins, Member and Mr Honan, Member

Hearing

11/03/97.

Representation

Complainant DAVID COLIN SCHOMBURGK:
Counsel: MS. I. HAYTHORPE - Solicitors: DIRECTOR OF PUBLIC PROSECUTIONS

Respondent SCOTT IAN HOLMES:
Counsel: MR. T. DIBDEN - Solicitors: DAVID STOKES &; ASSOCIATES

DCAAT-96-69

Judgment No. D3586

3 April 1997

In The Matter of SECURITY AND INVESTIGATION AGENTS ACT 1995

(District Court Administrative Appeals Tribunal)

SCHOMBURGK v HOLMES

Administrative and Disciplinary Division

Judge Pirone and Assessors Krumins and Honan

Scott Ian Holmes (hereinafter referred to as "the defendant") has been employed in the security industry for a period of some nine years.He was licensed to work within that industry under the now repealed Commercial and Private Agents Act 1986.That licence was granted to him on 23rd day of October 1990.It was endorsed "Crowd Controller as an Employee".

The Commercial and Private Agents Act 1986 was repealed with effect 31 March 1996.On that date the Security and Investigation Agents Act of 1995 (hereinafter referred to as "the Act") came into operation.Schedule 2 of the Act contains a heading titled "Transitional Provisions".For present purposes the effect of those provisions is to preserve the defendant's entitlement as a licensed agent.In accordance with the provisions of the Act, therefore, the defendant has held a restricted security agent's licence with a condition limiting the function that may be performed under it to "controlling crowds as an employee".

Agents who are licensed under the Act are liable to disciplinary actions being taken against them by the District Court of South Australia sitting in its Administrative and Disciplinary Division.They are so liable at the instance of the Commissioner or some other person.That action, however, may only be taken if the Court is satisfied on the balance of probabilities that proper cause exists for the taking of that action.

Section 25(1)(e)(ii) of the Act provides that there is proper cause for the taking of the action in question if:-

"events have occurred such that the agent would not be entitled to be granted the licence if he or she were to apply for it."

In accordance with the provisions of the Act a complaint was lodged with the Court on the 29th day of May 1996 by one David Colin Schomburgk (hereinafter referred to as "the complainant").The allegations concerning the events which had allegedly occurred and which were allegedly such that the defendant would not be entitled to be granted a licence, if he were to apply for it, were particularised as follows:-

"1(a)At all material times the defendant was the holder of a licence No. CCA60959 under the Commercial and Private Agents Act, 1986 with the endorsement of "Crowd Controller as an Employee";

(b)On 8 May 1995, the defendant was convicted at the Adelaide Magistrate's Court of two counts of assault committed on 20 August, 1994 and the defendant would not be granted a licence if he were to apply for it as he has ceased to be a fit and proper person pursuant to Section 9(1)(d) of the Act."

The particulars contained in paragraph 1(b) of the complaint were subsequently deleted by Order of the Court and were substituted by the following paragraphs:-

"1(b)(i)On 8 May 1995, the defendant was convicted at the Adelaide Magistrate's Court on two counts of assault committed on 20 August, 1994 and

(ii)the defendant would not be granted a licence if he were to apply for it as he had ceased to be a fit and proper person pursuant to Section 9(1)(d) of the Act."

The defendant entered an appearance to the complaint as laid.On 20th December 1996 he filed an affidavit.Paragraphs 2 and 3 of that affidavit read as follows:-

"2.As to the Complaint and Summons filed in this matter and dated the 29th of May 1996 I agree with the contents of particulars of paragraph (a).

3.That as to particulars of paragraph (b) I agree that I was convicted at the Adelaide Magistrates' Court of two counts of assault committed on the 20th of August 1994.I do not concede that I thereby ceased to be a fit and proper person pursuant to section 9(1)(d) of the Act."

The complaint came on for hearing before the Court on the 11th day of March 1997.At the request of the legal representatives of the complainant, and in accordance with the provisions of Section 28 of the Act, an Order had been made for the Court to sit with assessors selected in accordance with Schedule 1. The Court sat as so constituted.Each party was represented by counsel.The Court received documentary evidence.No viva voce evidence was presented by either party.

In the course of the hearing counsel for the defendant raised and debated many issues.One of them concerned the standing of the complaint.Another concerned the alleged status of the licence.Yet another issue raised by the defendant was the question of whether or not, in the circumstances before the Court, it had been established that proper cause existed for the taking of some disciplinary action against the defendant.A related issue concerned the nature of the action, if any, which could and should be taken against the defendant.

The Court notes with some relief that, as the result of certain concessions made by counsel for the defendant, the Court is now relieved from the responsibility of addressing and deciding the majority of the issues which were raised by the defendant.We say this because, at the end of the day, counsel for the defendant conceded, as in any event we find on the material before us, that the defendant is a person to whom the Act applies, and that proper cause for disciplinary action against the defendant has been established to the Court's satisfaction on the balance of probabilities.

In the circumstances, therefore, the only issue that remains to be resolved is what, if any, disciplinary action should be taken against the defendant.It is to that issue that we now turn our attention.

The action which may be taken by the Court is prescribed by Section 29(1). That Section reads and provides as follows:-

"29.(1)On hearing of a complaint, the Court may, if it is satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the person to whom the complaint relates, by order do one or more of the following;

(a) reprimand the person;

(b) impose a fine not exceeding $8 000 on the person;

(c) in the case of a person who is licensed as an agent -

(i) impose conditions of further conditions on the licence;

(ii) suspend the licence for a specified period or until the fulfilment of stipulated conditions or until further order;

(iii) cancel the licence;

(d) disqualify the person from holding a licence or a licence of a specified class under this Act or prohibit the person from carrying on business as an agent or as an agent of a specified class;

(e) prohibit the person from being employed or otherwise performing functions as an agent or as an agent of a specified class;

(f) prohibit the person from being a director of a body corporate that is an agent or an agent of a specified class."

We note that pursuant to Section 29(1)(b) the Court has power to impose a fine not exceeding $8,000.The parties, however, are agreed that that option is not available to the Court in the circumstances of the case before it.The reason for that is to be found in the provisions of Subsection (4) of Section 29 which provides as follows:-

"29.(4) If -

(a) a person has been found guilty of an offence;and

(b) the circumstances of the offence form, in whole or in part, the subject matter of the complaint,

the person is not liable to a fine under this section in respect of conduct giving rise to the offence."

We are satisfied on the material provided to us by counsel for the parties that the provisions of the Act as quoted are directly applicable to the case before us and accordingly therefore that the option of imposing a monetary penalty is not available to us.

In order to assist us in the performance of our task the parties have provided us with a Statement of Agreed Facts.That document reads as follows:-

"1.The defendant was the holder of a licence under the Commercial and Private Agents Act 1986 with the endorsement of "crowd controller as an employee" from 23 October 1990.

2. The Security and Investigations Act 1995 repealed the Commercial and PrivateAgents Act 1986.Since 31 March 1996 the defendant has held a restricted security agent's licence with a condition limiting the functions that may be performed under the authority of the licence to controlling crowds as an employee.

3. On 8 May 1995 the defendant was convicted in the Adelaide Magistrates Court of two counts of assault committed on 20 August 1994.The circumstances of the assaults are as follows:-

At about 10.55 am on 20 August 1994 the defendant was a front seat passenger in a Mitsubishi sedan being driven on Holbrooks Road at Underdale.The defendant's vehicle was cut off by the victim's vehicle.The driver of the defendant's vehicle then used the warning device for several seconds.Two people in the victim's vehicle, Nick Kokoschko and Andre Kokoschko, gave the fingers towards the defendant.Both of the vehicles travelled from Holbrooks Road onto Henley Beach Road and then onto Marion Road.When both vehicles came to a halt at the intersection of Marion Road and Burbridge Road, the defendant alighted from his vehicle and approached the rear passenger side of the victim's vehicle.The defendant said "Don't fucking stick fingers up at me". The defendant put his arm through the open window and grabbed Nick Kokoschko around the neck with his left hand and held him for about five seconds.

The victim's father who was driving the vehicle, Eric Kokoschko, alighted the vehicle and approached the defendant.The defendant released the victim and approached Eric Kokoschko.A verbal confrontation commenced between Eric Kokoschko and the defendant.The defendant struck Eric Kokoschko once to the left eye.

The police arrived at the scene and observed red marks on the throat of the first victim.The police officers further observed red discolouration and swelling to the left eye area of the second victim.

The defendant told the police that he had been awake all night due to work commitments and had been drinking lightly prior to the assault.

The defendant told the police that he should not have approached and assaulted the victims but stated that something had to be done because of the poor behaviour of the two persons in the rear of the vehicle."

In reaching our final conclusion of course we have had regard to the agreed facts.We have also had regard to other facts as put to us in the course of counsel's submissions.Those additional facts appear at pages 54-56 of the transcript and read as follows:-

"I am at pains to point out firstly that this incident, giving rise to this action did not occur in the course of his employment.It, in fact, occurred some time after he had been at work.His wife was driving the car;he was dozing off in the car until his head hit the side window as a result of that vehicle being cut off by the victim's vehicle.He was agitated.I think the first victim, Nick Kokoschko, and it's Andre Kokoschko - they're two mischievous children in the back of the car mouthing obscenities and putting fingers up and making rude gestures at my client's wife.

My client rested on the horn for a bit, as you might imagine.That was as a warning to the driver, Mr. Eric Kokoschko, because it's quite possible that he didn't see it.He's obviously been alerted to the presence and he would have looked in the rear mirror, presumably.

His children were in the back seat making these gestures and there was no other harassment on the road;there was no veering and there wasn't a car chase or anything of the sort.It's not suggested that it was.But what happened is at some traffic lights Mr. Holmes got out of his vehicle and approached one of the children in the rear of their vehicle and swore at him and grabbed him from the shoulder and shirt area.There were apparently some red marks around the throat area;that's conceded.That's what he was doing. 'Listen here' was the purpose of what he was doing.

The agreed facts state that Mr. Eric Kokoschko alighted from his vehicle and approached the defendant;he's the driver so he's come around one way of the car, obviously anxious to approach Mr Holmes.Mr Holmes has let go of the child and there's an argument about what had been going on.'Look, you control your kids.You keep your eye on the road.''Look, you get your hands off my kids.'That's basically, on my instructions, the nature of the argument.In the heat of the moment there's a blow by Mr Holmes to the left eye of Mr. Kokoschko.

I point out the police arrived at the scene not by being called.The police were driving in the opposite direction immediately after this incident and before anyone had got back in their cars and did a U-turn.This isn't a case of police getting there half an hour later and there's still bruising on anybody.This is before he's got back in the car.We don't have serious injury.We have basically the grabbing of a mischievous child, wrongly, and in a criminal manner, by his plea of guilty to the assault, he admits as much.

As you pointed out, an assault can be verbal, it can be likely physical.All it is a laying on of hands without the consent of the person who is lain on, if I can say that.He did that and was therefore at the very bottom end of a physical assault, I say.That's in relation to the child.

We concede that a bit more serious is a punch in the eye or whatever it was round the facial region of the father.This is when we've got the two adults confronting each other, not picking on the little child, not punching the little child.We've got a man who's driven in perhaps a careless way. Certainly it's admitted that the vehicle was cut off by Kokoschko's driving. He then has seen this man get out of the car and grab his child and he's had something to say about that and come round as well.This is not a night club situation.This is when Mr. Holmes has spent his night doing what he does best and coming home has meant what he perceived at the time to be a totally appalling behaviour by the children directed at my client's wife and then just basically lost his temper and we concede as much with the father."

The defendant is 27 years of age.He has not been working as a crowd controller for some considerable time.He is not working in that capacity at present.His counsel informed us that the defendant is presently working for his uncle as a truck driver but, further, that it is his intention to undertake a course which would qualify him for a restricted class of licence dealing with security systems involving the safe keeping of warehouses and the like.

What then is the action that should be taken against him in these circumstances?

Counsel for the complainant has urged us to cancel the defendant's licence.In the alternative, counsel says that the Court should suspend the operation of the licence for a period of not less than say five or six years.

Counsel for the defendant on the other hand says that the appropriate action is a reprimand or, at worst, a suspension of the licence for a short period of some two to three months.

Counsel for the complainant has advanced a relatively simple but strong argument in support of the submission that the defendant's licence should be cancelled.

The Act provides that a person is entitled to be licensed if he or she has not been convicted of an offence of a class specified by regulation.Common assault is an offence specified by regulation.The defendant has been convicted of that offence and for that reason, counsel for the complainant says, the defendant is not a person who is entitled to be granted a licence.

The Act also provides that a person is entitled to be granted a licence if, amongst other things, he or she is a fit and proper person to be the holder of the licence.Counsel for the complainant says that the two convictions of common assault recorded against the defendant in 1995 would stand in his way and would make him ineligible for the grant of the licence to him, because as a result of those convictions it can no longer be said that he is a fit and proper person to be the holder of the licence in question.In those circumstances, so the argument continues, if the defendant's licence were to be cancelled, the defendant would not be worse off than as if he had never been licensed and he were to apply for a licence now.Counsel for the defendant took issue with these propositions.

In Hughes v Vale Pty. Ltd. V The State of N.S.W.[No. 2] (1995) 93 C.L.R. 127 the Court pointed out that the concept of being fit with respect to some potential office or employment involved three basic factors.Those factors are "honesty, knowledge and ability".Walters J. dealt with a not too dissimilar question under the repealed Commercial and Private Agents Act 1972 in Sobey v Commercial and Private Agents Board (1970) 22 S.A.S.R. 70.His Honour said at page 76:-

"The issue whether an appellant has shown himself to be 'a fit and proper person' within the meaning of section 16(1) of the Act, is not capable of being stated with any degree of precision.But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails."

A similar approach was taken by Perry J. in Pav v Commercial and Private Agents Board (1988) 143 L.S.J.S. 1 when His Honour said at pages 12-13:-

"The considerations which it will be proper to take into account in determining whether a person is a fit and proper person to hold a particular licence will vary according to the nature of the licence and the nature of the work done pursuant to the licence.

It would be wrong to attempt any exhaustive catalogue of relevant considerations.It is obvious though that they will bear largely upon the character of the person concerned and in particular whether or not his character and reputation is such that members of the public with whom the person is dealing can deal with the person with a reasonable degree of confidence that he would act honestly and carry out his duties in a trustworthy way and with a due and proper sense of responsibility."

Crowd controlling is difficult work.It is not simply a matter of the controller being a big and burly "bouncer" who is capable of looking after himself.His responsibility is the protection of members of the public and others who attend the particular function being controlled by him.

It is common knowledge, of course, that some patrons of some functions at times become drunk, drugged, abusive and/or violent.The behaviour of some of them is quite unruly.A number of them often direct taunts, cheek or abuse to crowd controllers.It seems to us, therefore, that a crowd controller must be one who is able to put up with all sorts of taunts and jibes and to defuse potentially violent or explosive situations.He must be able to do so by means of persuasion and reason rather than by the use of violence.The controller must be able to keep his cool.

Counsel for the complainant has argued that although the offences of which the defendant has been convicted may not be thought to be terribly serious in themselves, they are nevertheless symptomatic of an attitude which is inconsistent with the reasonable approach which should be taken by a person licensed under the Act.They are also suggestive of an attitude on the part of the defendant to react in an inappropriate way to cheek, taunts or abuse which is likely to be directed at him by unruly members of the public from time to time.

What then is the effect which a conviction for a criminal offence may have upon the concept of being a fit and proper person to be licensed under the Act? The answer was provided by Walters J in Sobey's case (supra) in these words:-

"I cannot imagine anything which is more germane to the question whether a person is a fit and proper person than the matter of his record of previous offences.Any previous breaches of the law, and any propensity towards offending against the law must, in my view, be regarded as of crucial importance."

To say this, however, in our opinion, is not to say that a conviction for one criminal offence will necessarily and always be so regarded.That that must be so was recognised by Waltershimself in Sobey's case (supra) when his Honour said at page 75:-

"I would not go so far as to say that one criminal offence must necessarily deprive a person of that fitness and propriety which is a prerequisite for a licence under the Act."

In order to have that effect, in his Honour's own words, the past conduct must be such as to expose

".... an intrinsic defect of character which is incompatible with his being entrusted with a [relevant] licence."

In our opinion if, as the conviction for assault would suggest, the defendant has a tendency to react in an inappropriate and violent manner when he is being given cheek or abuse, that tendency is likely to have manifested itself at more frequent times than on the single occasion in question.We have come to the conclusion that the fact that it has not done so during the last nine years or so mitigates, at least to some extent, against the seriousness of the conviction and the weight to be attached to it.Our further view is that the offences, which were committed by the defendant on the occasion in question, were out of character and do not establish "a propensity towards offending against the law" or "an intrinsic defect of character which is incompatible with his being entrusted with a licence."

In any event as Olsson J. pointed out in Walker v Consumer Affairs (1991) L.S.J.S. 162 at page 135:-

"... personal, as contrasted with professional, misconduct must be viewed quite differently as to its relevance to a matter such [as it was before the court in that case] Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 C.L.R. 279)."

Another factor to which regard must be had in our opinion is this.Simply because a person may be adjudged not to be a fit and proper person to be granted a particular kind of licence under the Act at any particular time, as a result of certain convictions having been recorded against him, does not necessarily mean that he or she can not be the holder of any other class of licence.As Olsson J. said in Tremellins v Consumer Affairs (1991) 162 L.S.J.S. 29 at page 33:-

"... It must always be remembered that the Act spans a very considerable number of types of licence which may be granted."

His Honour went on to say:-

"Quite clearly the nature and seriousness of previous convictions will necessarily vary considerably in their importance, as well as the weighting which ought properly to be attributed to them, bearing in mind the significance which those convictions must necessarily have in relation to the type of work envisaged by the particular licence sought."

Nor does it necessarily follow, in our opinion, that the door would necessarily be closed, and remain closed forever, to such a would be applicant.

To refer again to the judgment of Walters J. in the Sobey case (at page 75) :-

"When a considerable period of time has elapsed from now, past facts might be viewed in the light of the lapse of time and weight might then be properly given to his subsequent good behaviour."

In our opinion the matters to which we have referred are particularly apposite to the case before us.

In discharging our duty we do not see our primary function as one to punish the agent.That function is performed by the criminal law.Our overriding concern in deciding what order we should make in this case is the protection of the public.It is not our function to seek to punish the agent.In Richter v Walton (an unreported judgment of the Court of Appeal of New South Wales, handed down on 15th July 1993) the Court was concerned with a complaint laid under Section 32R of the Medical Practitioners Act 1938 (NSW).In a joint judgment, Kirby P. (as he then was) and O'Keefe A.J.A. said:-

"The purpose of an order under section 32R of the Act is to protect the public, not to punish the practitioner.The disciplinary power is, as the High Court said in New South Wales Bar Association -v- Evatt (1968) 117 CLR 177 at 183, "entirely protective".In no sense is the order to be regarded as punitive or imposed to conform to notions of due punishment for the conduct which is found. Removing the name of a medical practitioner from the Medical Register is the ultimate professional sanction, in the same way as is the disbarring of a barrister.Again as the High Court has said 'when such an order is made, it is made, from the public point of view, for the protection of those who require protection, and from the professional point of view, in order that abuse of privilege may not lead to loss of privilege' (Clyne -v- New South Wales Bar Association (1960) 104 CLR 186 at 201 to 202)."

In our opinion these words apply, mutatis mutandis, with equal force, to the type of complaint which is now before us.

In the light of what we have said, and based on the authorities to which we have referred, we have come to the conclusion that, notwithstanding the logic and apparent compelling force of the arguments advanced on behalf of the complainant, to order the cancellation of the defendant's licence, in the circumstances of the case before us, would be to take too drastic an action. Differently expressed in our view, if we were to do that, the "penalty" would be "manifestly excessive".

Having said that, however, we hasten to add that, in our opinion, a simple reprimand as urged upon us by counsel for the defendant would equally be "manifestly inadequate".At the end of the day we have come to the conclusion that the appropriate action to be taken by the Court against the defendant, would be to order the suspension of his licence for a specified period.The question is:for how long.

The complainant says for four or five years.The defendant says for two or three months.

We bear in mind that the offending in question occurred some three years ago and that it occurred not only in the heat of the moment, but in circumstances where persons, other than the defendant, would in all probability have taken some action.We have had regard to the fact that the defendant was not the driver of the vehicle concerned, that the person to whom the offending gestures were directed was his wife, that the offending gestures were being made by a teenager and that the defendant did not take any steps to seek out his victims other than by alighting from his vehicle when both vehicles had come to a halt at the traffic lights.We also bear in mind that the defendant's only approach was to the offending youth [who we note in passing was not a child as we were originally given to understand, but rather a teenager of about 17] and further, that it was the other victim who in fact approached the defendant, rather than vice versa.We bear in mind that the defendant has no other convictions recorded against him, either before or after the incident in question and that his offending or misconduct was personal rather than professional in the sense that it occurred away from and not in the course of his employment.

After carefully considering everything that has been put to us by the parties, we have come to a firm conclusion that an appropriate period of suspension to be imposed upon the defendant is two years.In accordance with the provisions of Section 29(1)(c)(ii) of the Act, therefore, being satisfied on the balance of probabilities that there is proper cause for taking disciplinary action against the defendant, the Order of the Court is that the defendant's licence be and do stand suspended for a period of two years from this day.

Later in Court - 3rd April, 1997.

Ms. C. Murphy for the complainant.Mr. T. Dibden for the defendant.

Judgment delivered.

Application by the Crown for costs in the amount of $200 refused.