Sitotaw v Commissioner of Police, New South Wales Police

[2006] NSWADT 96

CITATION:	Sitotaw v Commissioner of Police, New South Wales Police [2006] NSWADT 96
DIVISION:	General Division
PARTIES:	APPLICANT Habtewold Nigatu Sitotaw RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053387
HEARING DATES:	13/12/05, 15/03/06
SUBMISSIONS CLOSED:	03/15/2006
DATE OF DECISION:	04/04/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Security Industry Act - security industry licence - revocation or suspension of licence - Security industry licence - revocation or suspension of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes Act 1900 Mental Health (Criminal Procedure) Act 1990 Security Industry Act 1997
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Briginshaw v Briginshaw (1938) 60 CLR 360 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Haining v Commissioner of Police [1999] NSW ADT 47 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Toleafoa (No) 2 v Commissioner of Police [2000] NSWADT 48 Toleafoa v Commissioner of Police [1999] NSWADT 9
REPRESENTATION:	APPLICANT D Miralis, solicitor RESPONDENT W Pisani, agent
ORDERS:	The Tribunal orders that the Commissioner’s decision to revoke the applicant’s security licence is set aside and the matter is remitted for reconsideration by the Commissioner in accordance with the directions and findings of the Tribunal.

1 This is an application by Habtewold Nigatu Sitotaw (“the applicant”) seeking review of a decision of the Commissioner of Police, NSW Police (“the Commissioner”) to revoke his Class 1 ABC security industry licence. That decision was made on 26 August 2005 and affirmed in an internal review determination on 27 October 2005. The grounds on which these decisions were made was that:

(a) the Commissioner considered that it was not in the public interest for the applicant to continue to hold his security industry licence (see s.26(1)(d) of the Security Industry Act 1997 and cl.18 of the Security Industry Regulation 1998) ; and

(b) the Commissioner had formed the opinion that the applicant was no longer a “fit and proper person” to hold the licence (see s.26(1)(c) of the Security Industry Act 1997).

2 The facts on which this decision was made was conduct that was engaged in by the applicant in October 2004 when he was working as a security guard. At the time he was working for Advent Security and he had been assigned to work the evening shift at 495 Victoria Avenue, Chatswood in Tower 1 (“the Building”). He had been working this shift for several years. He had only been working for Advent Security for a short time as they had only recently taken responsibility for security in that Building. Prior to this Chubb Security had been the contractor responsible and the applicant had been employed by them. Chubb and Advent Security have not been his only employers as a security guard. All in all he has worked in the security industry for nine years.

3 The applicant’s conduct involved the removal, by him, of several items of property from levels 3, 5 and 7 of the Building during the evenings of 23, 26 and 27 October 2004. The Building’s security video recorded the applicant removing the following property at the following times:

(a) several computer cases, on 23 October 2004, from level 7 at about 11.30 pm;

(b) a chair from level 7, on 26 October 2004, at about midnight;

(c) a two drawer filing cabinet with a cushion on top, from level 3, on 27 October 2004, at about 8.00 pm; and

(d) a computer monitor from level 7, on 27 October 2004, at about 4.00 am in the morning.

4 The police subsequently found these items together with other items at the applicant’s home on the evening of 29 October 2004. The police had attended the Building on the evening of 29 October 2004. They had been called by the facilities manager of the tenant, Nortel Electronics (“Nortel”), on the floors in question earlier in the day. The facilities manager, Ms Dorothy Stevenson, had been alerted to some chairs having gone missing and after some investigations the applicant was identified as the person who removed one from the tenant’s floor. When the police arrived that evening they arrested the applicant and charged him with offences of larceny and possession of goods suspected of being stolen. On 30 November 2004 some of the charges were withdrawn but two charges, one of larceny involving goods to the value of between $5,000 and $15,000 and a charge of possession of goods suspected of being stolen were discharged under s.32(3)(a) of the Mental Health (Criminal Procedure) Act 1990. These charges were dismissed on the condition that the applicant was placed under the care of a specified person.

5 Section 32 of the Mental Health (Criminal Procedure) Act 1990 enables a Magistrate to dismiss a charge against a defendant and discharge the defendant into the care of a specific person to undergo specified treatment or assessment. That discretion is available to the Magistrate where he/she is satisfied that the defendant suffers from a mental illness or was mentally ill at the time the offence, the subject of the charge, was committed and the Magistrate considered that it is more appropriate for the defendant to be placed in specific care or undergoes specific treatment. Sub-section 32(4) of that Act expressly states that a decision of a Magistrate to deal with a defendant pursuant to that section and dismiss the charge is not to be understood as being a finding that the charge had been proven or not proven.

6 While the applicant has at no time disputed the fact that he took the goods in question he has at all times said that he took them at the request of a Nortel employee and that he removed them to his home at the request of the building manager. It was this account of events which the Commissioner strenuously tested at the hearing of the applicant’s application for review. Mr Pisani, on behalf of the Commissioner also pressed the other grounds on which the Commissioner had revoked the applicant’s licence as contained in the internal review determination. The essence of these were based on the fact that the applicant had taken the items to his home on the request of a stranger who alleged that he had purchased them and was lawfully entitled to have them. In the internal review, the Commissioner stated that in his opinion this was inappropriate conduct for a licensed security guard. For the purposes of the criminal proceedings, the applicant had provided a report from Dr Gary Banks, a clinical and forensic psychologist. In that report, dated 13 July 2005, Dr Banks expressed a view that the applicant’s behaviour was as a result of a deep depression, which arose after the death of his brother and sister in 2004.

7 Accordingly the issues in this application are as follows:

(a) whether the applicant’s explanation as to how he came to take and possess the property from the Building in the latter part of October 2004, should be believed. This centres on a submission by the Commissioner that his explanation was fanciful and that the applicant at all times took the property with the intention of permanently depriving the owner of it;

(b) whether the applicant’s conduct in October 2004 is such to make a finding that he is not a fit and proper person to be the holder of a security industry licence; and

(c) whether the applicant’s conduct is such that it is not in the public interest for him to continue to be the holder of a security licence.

8 In light of the matters in issue in this application, it is necessary to set out in some detail the evidence that was put before the Tribunal.

Commissioner’s evidence

9 The Commissioner relied on the police statements and a statement of Ms Dorothy Stevenson, that were prepared for the purpose of prosecuting the charges that had been laid against the applicant. The Commissioner also tendered into evidence, following the first day of hearing, an affidavit of Ms Stevenson sworn on 1 February 2006 and an affidavit of Mr Richard Alan Crombie, the building operations manager of the Building, sworn on the same day. Ms Stevenson and Mr Crombie were also called to give further oral evidence and to be cross-examined by Mr Miralis on behalf of the applicant.

10 In her evidence Ms Stevenson said that between 15 to 29 October 2004, Nortel was relocating its offices from the Building to a new location at Macquarie Park. She explained that most of the equipment, which included copiers, faxes, printers and PCs and some furniture had already been relocated prior to 28 October 2004. The remaining office equipment and furniture she said was progressively being removed in one of several ways. This included returning them to the supplier in those cases where the equipment or furniture had been leased and letting staff remove property they had purchased. These staff members had been given a receipt to substantiate their right to remove the goods from the premises. In addition to this, Work Arena, a specialist removal firm, was removing items of furniture and equipment for delivery to an auction house or to stockpile them for disposal to the rubbish bin.

11 In her statement to the police, Ms Stevenson explained that on Thursday, 28 October 2004 she had received a telephone call from Work Arena. That company she said were providing Nortel with office furniture at their new location. In preparation for this they had provided Nortel with two chairs as a sample of what they could expect. These chairs had been located on level 7 of the Building and the employee from Work Arena had contacted Ms Stevenson to ask where they had been placed. Ms Stevenson said that following this conversation she attempted to locate the chairs and in doing so she went straight to the closed circuit television footage that was located on the floors occupied by Nortel (“CCTV footage”). On checking this footage she saw that between 11.30 pm and midnight on 27 October 2004 a male, Caucasian with black hair and with a black beard, wearing a white short sleeved shirt with a black waistcoat over the top of it, was removing one of these chairs from level 7. She did not recognise the man. On the following day she contacted the building manager of the Building, Mr Crombie about what she had seen on the CCTV footage. She goes on to state that she saw Mr Crombie use the telephone and that two managers from Advent Security then attended the Building and also viewed the CCTV footage. She goes on to say:

“The managers then requested I search more of the CCTV footage. They gave me dates to specifically check. As I did this I saw the same man I described earlier on different floors of the building. I saw him removing other items of property from the building. During the times he was removing property he had either the waistcoat or a long sleeved jumper. At other times I saw him wearing the short sleeved white shirt, which I recognised as the Advent guard’s uniform. The man was easily recognisable as the same person”.

12 Ms Stevenson then contacted the police. From the statement of Constable Ben Mooney, it would appear that Ms Stevenson contacted the police some time in the morning of 29 October 2004. Constable Mooney states that at about 9.30 pm on that evening, he and Constable Murphy attended the Building and waited for the applicant to start work. He arrived at about 10.20 pm and Constables Mooney and Murphy approached him and informed him that he was under arrest for stealing. According to the statement of Constable Mooney the following conversation took place between them and the applicant after he had been informed that he had been arrested for stealing:

“10. The accused had in his possession a wallet and numerous small pieces of paper. I saw on one of these pieces of paper a list of numerous items including computer ware and office furniture. I said to the accused, ‘What is this list for?’”

The accused said, ‘A guy gave me that list to go and get from upstairs.’

I said, ‘What is his name?’

The accused said, ‘ I do not know his name I only know him physically’.

I said, ‘What did he say?’

The accused said, ‘He asked me to get these things and bring them downstairs. I went and got them and brought them downstairs. He asked me if I wanted to buy them. I said no. He asked me to take them to my house so I did. I don’t know his name I only know him physically’.

Constable Murphy said, ‘What did you do with the property after you took it from the building?’

The accused said, ‘They’re at my house.’”

13 According to the statement of Constable Mooney, they looked through the applicant’s wallet and saw a large amount of money inside it. They asked him questions about where he got the money from to which the applicant responded “It’s my pay. I took it out earlier today to pay some bills”.

14 After asking the applicant questions about the amount of money he had in his wallet, Constables Murphy and Mooney took the applicant into custody and examined his vehicle. They also took him back to Chatswood Police Station, where the applicant, as he was entitled to do, refused to participate in an interview. During the same evening, at about 2.45 am on Saturday, 30 October 2004, Constables Mooney and Murphy together with three other police officers drove to the applicant’s home and conducted a search of the applicant’s property, pursuant to a search warrant. According to the Property Seizure Form that was completed that evening, the following items were seized from the applicant’s home:

2 two drawer filing cabinets;

A keyboard;

A hard drive;

A monitor;

2 laptop bags with one containing a floppy disc;

2 cables;

A Canon printer;

A black suitcase;

4 pictures;

3 office chairs;

A fax machine;

2 Toshiba laptops in a bag.

15 The abovementioned items were found in the lounge room, garage and main bedroom.

16 In his affidavit, Mr Crombie said that on 27 October 2004, he had been advised by Ms Stevenson that some items had gone missing from the various levels of the Building where Nortel was located. He said that he spoke to the applicant about this on 28 October 2004 at about 4.30 pm. He recorded his conversation with the applicant as follows:

I said: “Nortel had some items stolen from their floors on Tuesday night, did you see anyone taking things from any Nortel floors?”

He said: “No, I didn’t see anyone”.

I said: “Are you sure, because Nortel’s video security system is still working and they are going to look at the recording to try and find out who took the things”.

He said: “I collected some things for a Nortel employee who said he had bought them and had come to pick them up. I took them to the ground floor foyer for him and he took them away”.

I said: “Did he have any letter authorising him to remove them?”

He said: “No”.

I said: “Who was he?”

He said: “I don’t know his name but I would recognise him if I saw him again”.

I said: “Chris (the name of the applicant) you shouldn’t have given anything to anyone without Nortel telling you to”.

He said: “I know, but he said his access card had been cancelled, so he couldn’t get to the floors to collect the things himself”.

I said: “Nortel will look at the video recordings and I’ll let you know what they showed”.

17 Mr Crombie said that he had a further conversation with Ms Stevenson on the following day, Friday, 29 October 2004. He said on this day he viewed the security footage and identified the applicant as being the person who Ms Stevenson had identified as taking the chair from Nortel’s premises. Mr Crombie said that he contacted Advent Security and requested that they immediately stand the applicant down from duties at the property. He then went on to say that he verbally notified his manager of the incident and subsequently wrote a report dated 5 November 2004 and forwarded it to his employer, Jones Lang La Salle Properties. During cross-examination Mr Crombie denied that the applicant had ever told him, between 23 and 30 October 2004, that someone from Nortel had sold him property that this person had purchased, or that, Mr Crombie had advised the applicant that he could take the property home.

18 In cross-examination, Mr Crombie also acknowledged that he had prepared his affidavit on the basis of what his recollections were as at 1 February 2006. He readily acknowledged that this was some time after the event and that it was possible that the applicant had informed him that someone from Nortel had sold him property purchased by that person and that he, Mr Crombie, had told the applicant to take them home. He also said that he had known the applicant for one to two years and that he had seen him perform his duties as a security guard on a regular basis. It was his opinion from what he had observed that the applicant performed his duties as a security guard very well. He also said that when Advent Security took over the security of the Building, he had no hesitation in recommending the applicant to them.

19 Mr Crombie also tendered into evidence a facsimile of the original of page 41 of the applicant’s entry into a security record book. The entry was from 17.00 hrs that evening, Friday, 22 October 2004, to 5.30 hrs the following morning. Mr Crombie explained that during the period he was the property manager at the Building, the practice was that each security guard maintained a contemporaneous record of what they had done during their shift. This record would also identify any problems that had arisen during the security guard’s shift. The contemporaneous record he explained was recorded in duplicate in an exercise book and he, as the property manager, was provided with the original of the record as it was through this means that he was able to identify any problem that he needed to have addressed. The particular record that he tendered into evidence, Mr Crombie explained had been received by him the morning of the hearing from Jones Lang La Salle who retained all originals. That record contained the following handwritten entry at the bottom of the page:

“* (a) Nortel-staff – which he showed me he bought furniture – 17.15

(b) picked up after midnight 1 x little table + 1 x little cabinet + big shelf

(c) assisted earlier + lately – because of his pass

5.30 Chris off duty – keys hand over to Marie – security info exchanged.”

20 The applicant relied on the references that he had provided to the Commissioner for the purposes of his internal review request. There were 14 references in total and the majority of the referees had known the applicant for a considerable period of time. They all state that the applicant is a person of high calibre and highly respected by those who know him. They all vouch for his honesty, integrity and reliability. However, it would appear from the terms of the references that the referees may not have been aware of the charges that had been laid against the applicant or the circumstances that surrounded the charges.

21 The applicant also relied on the report of Dr Gary K. Banks and two certificates/reports from Dr Viola Rizk, the applicant’s general practitioner, dated 7 June 2005 and 28 September 2005. In addition to this the applicant relied on a certificate from Dr Aye Bartlett dated 7 June 2004 and a report from Valerie Atkinson, psychotherapist – occupational therapist at Western Sydney Health, dated 14 March 2006.

22 In addition to tendering these documents, the applicant gave oral evidence and he was extensively cross-examined. It is convenient to deal with his evidence before considering the evidence of the medical experts.

23 In his oral evidence, the applicant explained what had occurred as follows:

(a) he had been working with Advent Security for about three months when the incident in October 2004 occurred. Prior to this he had been employed by Chubb Security and he had been employed there for nine years. During this time his employer did not complain about his work, nor had anyone else complained;

(b) prior to 22 October 2004, contractors had been moving items from the offices of Nortel, which were on levels 2, 3, 4, 5, 6, 7, 8 and 9 of the Building. He had been told previously that Nortel were moving to new premises that were being refurbished. He had also been informed that Nortel staff were buying some of the property in Tower 1. He constantly saw people taking items out of their offices and he saw some items being thrown into the rubbish. When staff took items they had purchased they would show him a receipt. This was an A4 size piece of paper with Nortel letterhead and it would contain a description of the items that the staff member had purchased and how much they had paid. As well as staff taking out items he regularly saw contractors taking office equipment such as computers and chairs from the Nortel offices;

(c) on Friday, 22 October 2004 between 5.15 and 5.30 pm he was approached by a man of medium height wearing a Nortel pass. The applicant did not know the name of this man but he said his face was familiar. The man showed him a Nortel receipt. The man said “I bought these things” and said that he was coming back later to take the items on the list. The applicant said that he told the Nortel man to speak to his managers and the man said: “All of them know about it”. The man came back into the Building later that evening and said to the applicant: “Do you want some of the items from here”. The applicant initially responded by saying: “No – I do not need them”. The applicant said that he and the Nortel man then had a discussion where the applicant explained that the Ethiopian School had asked him for donations and that the man told him that if the items were for a community school then he would reduce the price of them. The applicant then gave the man $40 and then an additional two lots of $40 for some of the items on the list.

(d) At 11.15 pm on the same evening of 22 October 2004, the man returned and said to the applicant that he had his children in the car and he could not leave them and asked the applicant to bring down some of the equipment that was contained on the list. The applicant said he rang security and informed them that the man had come to collect the material. The applicant then went up the lift to level 7 and saw that all the doors were open. He said that everything had gone except what appeared to be cabinets, computers and other office equipment that appeared to be some dumped in the corridors. He looked at his list, took items which were listed on his list and took them to the ground floor, but when he got down there the Nortel man had gone. When the Nortel man did not return, the applicant spoke to the contractors and they said “He will come back”. The applicant then took the items down to B1 and took them home on mid Sunday morning as the man had not returned. The same evening, the applicant brought the items back to the Building. He left them in his car and contacted the property manager on the Monday morning, 25 October 2004. The property manager told him to take them home because he did not have room to store them. Accordingly, the applicant took them back home and put them into his garage. It would appear that the applicant also decided he did not want any of the items and that he wanted his money back but as the Nortel man did not return to the Building he was unable to do so.

(f) The applicant also said that he had spoken to the Nortel man on the following Tuesday, Wednesday and Thursday of that week and as a result of these conversations he removed more items from the Nortel offices.

24 The applicant also tendered into evidence the record book which he used while he was working at the Building at the relevant time. This book contained a carbon copy of page 41, which was an exact copy of the document that had been tendered into evidence by Mr Crombie. The applicant confirmed that the entries made on this page were made by him and that it was his signature that appeared at the bottom of the page. It was also noted that the book contained other entries of the applicant during his shifts at the Building between Saturday, 25 September 2004 and Thursday, 28 October 2004. The book also contained entries of another security guard who worked the shift that followed those that the applicant had worked.

25 Another document tendered into evidence by the applicant was a small piece of torn paper. The applicant explained that this was the piece of paper on which he wrote those items that the Nortel man had requested him to take and which floor to take them from. This is also the piece of paper that he sought to give to the police when explaining how he came to remove the items that were found at his home. That list makes reference to items located on levels 7, 3 and 5 and included in the items are bags, chairs x 3, a computer monitor and a large cabinet. There is also additional writing on the piece of paper, which the applicant explained were figures that he had written at the time of his arrest and through which he had sought to explain to the police how he came to have the amount of money he had on him at that time.

26 The medical and psychological evidence relied on by the applicant can be summarised as follows:

(a) Dr G. Banks – as mentioned above this report was prepared for the purpose of the criminal proceedings against the applicant. The report is comprehensive and Dr Banks’ recommendations for the court’s consideration included the following:

“With respect to the charges

The Court may wish to consider the impact of these charges on this man’s career. He denies the charges and maintains that his actions were driven by good intentions to help others. There appears a transparent naiveté to his actions combined with an identifiable element of poor-decision-making at a time of purportedly helping someone else.
…

With respect to sentencing

Mr Sitotaw presented as an emotionally distressed man, showing signs of severe depression and hopelessness. Much of his distress was directly associated with feelings of unjust treatment, disbelief and demoralisation. Mr Sitotaw appeared to be still in a state of shock and he gave a confused, though understandable account of the incident. He repeatedly denied any intentions to unlawfully remove items from the victim’s premises.

Mr Sitotaw impressed as a highly intelligent individual who possesses traditional moral values. …

Mr Sitotaw also appeared to be grossly naïve and overly trusting of others. It seems that this sense of trust in others’ good intentions has suffered as the result of the charges against him.

…

Mr Sitotaw experienced the loss of his younger sister and brother within the same year. Such loss may have contributed to increased vulnerability and confusion. As Mr Sitotaw explained, at the time of the incident in October 2004 he was still mourning his brother’s death and was also feeling guilty about his inability to sponsor his sister to Australia. He believes that sponsorship would have saved his sister’s life.

Finally, I believe Mr Sitotaw is in urgent need of psychological intervention that targets his depressive symptoms and considers suicide prevention and would suggest that if placed on a good behaviour bond, his relevant probation and parole office assist him to obtain services from his local mental health team”.

(b) Dr Viola Rizk:- the two reports of Dr Rizk are very short. The first report, dated 7 June 2005, states that the applicant was receiving treatment for major depression. The second report, dated 28 September 2005, states that the applicant was “medically fit to work in any profession including as a security guard”;

(c) Dr Aye Bartlett:- in her short report dated 7 June 2004 Dr Bartlett states that the applicant had “no medical problems”;

(d) Valerie Atkinson:- in her report, dated 14 March 2006, Ms Atkinson states that the applicant had been referred by Dr Rizk on 30 December 2005 to be assessed by the Acute Care Team at the Blacktown City Mental Health Service and that he had now been referred to the Therapies Clinical Support Team for counselling for depression and grief. The report does not go on to elaborate on the applicant’s depressed condition but states:

“… At least five professional health workers in our service have now met with Mr Sitotaw and all these have assessed him as genuine and truthful in his presentation. …”

Findings of fact

27 Although there is no onus of proof in a merits review application, it is well established that where facts are in issue, the appropriate standard of proof is on the balance of probabilities as set out in Briginshaw v Briginshaw (1938) 60 CLR 360 by Dixon J at 361-362. That is, the Tribunal in making a finding of fact must do so on the basis of “an actual persuasion of its occurrence or existence” or to the “reasonable satisfaction” of the Tribunal. As pointed out by Dixon J, the “reasonable satisfaction” is to be attained having regard to matters such as “the seriousness of the allegation that has been made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from the particular finding”.

28 In this application there is no dispute that the applicant did in fact take property which did not belong to him. However, the question is whether the evidence establishes that the applicant stole the property in the sense of having taken the property without lawful authority and with the intention of permanently depriving the rightful owner of that property: see s.94 of the Crimes Act 1990. It is the Commissioner’s contention that the evidence does disclose such a finding as the applicant’s explanation of how he came to possess the property is fanciful and should not be believed. The consequences of this is that the only inference that can be drawn from the evidence is that the applicant stole it.

29 To some extent the position taken by the Commissioner is understandable as the explanation given by the applicant is out of the ordinary. However, such events do occur and in this case the applicant has produced contemporaneous records to support what he contended had happened. In particular, his note on page 41 of his record book of 22 October 2004 and his handwritten list of what he was requested to remove. Furthermore, the applicant has at all times said that he was asked to take the items by a Nortel staff member who said he had purchased the items. Even Mr Crombie recollects such a conversation having taken place between himself and the applicant. At that particular time there were obviously many Nortel staff members who were removing items they had purchased as part of the Nortel re-location efforts. It is also noted that the applicant did not hesitate in telling the police where he had taken the items.

30 On the other hand I am unable to place much weight on Mr Crombie’s recollection of the conversations he had with the applicant some 16 months after the events. This is no criticism of Mr Crombie who clearly gave evidence to the best of his recollections, which he acknowledged may have been incomplete.

31 While there are aspects of his account of events that are difficult to believe I do not find that the applicant gave untruthful evidence. However, as explained above, even if I were to find that the applicant’s evidence was not to be believed this would not be the end of the matter as the evidence would need to be considered for the purpose of whether or not a finding could be made that the applicant had in fact intentionally stolen the property that was found on his premises or that he had received the property knowing that it was stolen. In light of my findings it is not necessary to give my consideration to this issue.

32 While I accept the applicant’s explanation of events I also find that his conduct, in accepting to remove the items at the request of a person who he thought to be Nortel staff member and then taking that property home, was inappropriate in the circumstances and demonstrated a severe lack of judgment as to his responsibilities as a licensed security guard. Having regard to what he was authorised to do as a security guard (see s.11 of the Security Industry Act 1997), it is clear that his duties did not involve assisting others to remove property from the Building that he was engaged to protect. However, in light of the applicant’s long history as a security guard without any complaint having been made against him I find that this inappropriate conduct, while serious, was an isolated incident and one that occurred while he was severely depressed and one that he now deeply regrets having done. On the material before the Tribunal it would appear that the applicant continues to suffer depression. While the evidence shows that the applicant has undergone treatment for his depression and that he is still undergoing counselling, the applicant did not produce any medical, psychiatric or psychological evidence to show that his existing mental condition is such that it no longer impedes on his usual sense of judgment and what is and is not appropriate conduct for a licensed security guard. In this regard the report of Dr Rizk, sated 28 September 2005, was of no assistance as she provided no factual basis on which her opinion was based.

Fit and proper

33 S.26 of the Security Industry Act 1997 (“the SI Act”) makes provision for the revocation of a licence issued under that Act. Paragraph 26(1)(c) of that section provides that the Commissioner “may” revoke a licence where he forms the opinion that the licence holder is no longer a fit and proper person to hold the licence. Sub-section 26(1A) provides that the Commissioner “must” revoke a licence if satisfied that had the licensee been applying for a new licence the application would be required to be refused on any of the mandatory grounds set out in the SI Act. These mandatory grounds for refusing an application for a licence are set out in s.15 and paragraph 15(1)(a) provides for a mandatory ground of refusal of the applicant not being a fit and proper person to be the holder of the licence applied for. While there appears to be some inconsistency in these provisions, for the reasons set out below, it is not necessary for the Tribunal to reach any conclusion on this.

34 In determining what is meant by the term “fit and proper”, the Tribunal has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. In that decision at [63] the Chief Justice said:

“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 witness and propriety are under consideration”.

35 It is well established that a person’s fitness and propriety must be considered in the context of the activity for which the person is licensed (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond (supra)). In this regard as pointed out by the Tribunal in Haining v Commissioner of Police [1999] NSW ADT 47 and followed in Toleafoa (No) 2 v Commissioner of Police [2000] NSWADT 48, the security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the private and public venues are safe.

36 Even where a person has a criminal record this of itself may not be sufficient for the Tribunal to be satisfied that a person is not a fit and proper person to work in the security industry. As pointed out by the Tribunal in Toleafoa (No 2) at para [34] in the decision of the High Court of Ziems -v- The Prothonotary of The Supreme Court of New South Wales (1957) 97 CLR 279 at 302, Taylor J said that the vital question in determining a persons fitness and propriety for a particular licensed activity was not whether the licence holder (in that case a registered legal practitioner) had been convicted of an offence against the criminal law, but whether the conduct of the licence holder was such to show that he was unfit to remain a member of his profession.

37 In my opinion the same test applies where a person is found to have engaged in inappropriate conduct. In this matter the applicant’s conduct was serious but as I have found it to have been an isolated incident and one that was engaged in while he was depressed I do not consider that on the basis of this inappropriate conduct there is sufficient to make a finding that the applicant is no longer a fit and proper person to be the holder of a security licence.

Public interest

38 Another ground on which the Commissioner “may” refuse an application for a licence, and hence a ground to revoke a licence, is where the Commissioner “considers the grant of a licence would be contrary to the public interest”( see s.15(3) of the SI Act). It is noted that revocation on this ground is discretionary and not mandatory.

39 The Appeal Panel pointed out in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25] that the term "public interest" is

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

40 It is also well established that in exercising his discretion under this ground of revocation of a licence the Commissioner must do so having regard to the objects of the SI Act. While these are not expressly stated in that Act it can be inferred that they include an object of ensuring that those who are licensed under the Act can be trusted by the public to properly perform the duties of watching, guarding or protecting property, act as a bodyguard or carry out crowd control functions in a professional manner. It would appear that up until October 2004, the applicant had so conducted himself. I have also found that what occurred in October 2004 was an isolated incident which occurred while he was depressed. In light of this and if the applicant’s condition is such that his depression has responded to treatment so that he has regained his sense of proper judgment, in my opinion it cannot be said that it would be contrary to the public interest for him to continue to hold his licence. But for the reason’s explained above, in my opinion, there is insufficient material before the Tribunal to make such a finding. However, in my opinion, the applicant should be given an opportunity to provide such evidence from a person, as agreed between the applicant and the Commissioner, and who is appropriately qualified. If that person provides a report which satisfies the Commissioner that the treatment of applicant’s mental illness is such that it no longer affects his normal sense of judgment then his licence should be restored.

Conclusion

41 Accordingly, for the reasons set out above, the Tribunal finds that the Commissioner’s decision to revoke the applicant’s security licence is not the correct and preferred decision and should be set aside. However, in light of the findings of the Tribunal the matter should be remitted to the Commissioner for further consideration pursuant to s.63(3)(d) of the Administrative Decisions Tribunal Act 1997.

Orders

42 The Tribunal orders that the Commissioner’s decision to revoke the applicant’s security licence is set aside and the matter is remitted for reconsideration by the Commissioner in accordance with the directions and findings of the Tribunal.