Tuaimau v Commissioner of Police, NSW Police Service
[2003] NSWADT 240
•11/07/2003
CITATION: Tuaimau v Commissioner of Police, NSW Police Service [2003] NSWADT 240 DIVISION: General Division PARTIES: APPLICANT
Joe Tuaimau
RESPONDENT
Commissioner of Police, NSW Police ServiceFILE NUMBER: 033226 HEARING DATES: 29/09/03 SUBMISSIONS CLOSED: 09/29/2003 DATE OF DECISION:
11/07/2003BEFORE: Montgomery S - Judicial Member APPLICATION: Security Industry Act - security industry licence -grant of licence - Security industry licence - grant of licence MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Security Industry Act 1997
Security Industry Regulation 1998CASES CITED: Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
McDonald v Director General of Social Security (1984) 1 FCR 354
Toleafoa v Commissioner of Police [1999] NSWADT 9REPRESENTATION: APPLICANT
RESPONDENT
C Goldberg, solicitor
M Buchanan, solicitorORDERS: 1 The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr Tuaimau for the grant of a Class 1 ABC licence under the Security Industry Act 1997 is set aside. In substitution for that decision, the decision is made that Mr Tuaimau is to be issued with a Class 1 ABC licence
1 These proceedings relate to a decision by a delegate of the Commissioner of Police, NSW Police Service ("the Commissioner") to refuse an application by Mr. Joe Tuaimau for the grant of a class 1ABC licence under the Security Industry Act 1997 ("the Act"). The refusal was based on the view that it was not in the public interest that Mr. Tuaimau be granted a security licence.
2 Mr. Tuaimau lodged his application for the security licence on 17 March 2003. The decision was taken to refuse that application and Notice of that refusal was served on Mr. Tuaimau by post on 19 May 2003. By letter dated 6 June 2003 Mr. Tuaimau requested an internal review of the decision. A delegate of the Commissioner undertook the review and it was finalised on 3 July 2003. The decision ("the internal review decision") was made that the Commissioner's decision to refuse Mr. Tuaimau’s licence application is to stand. The Commissioner's delegate gave detailed reasons for the internal review decision and Mr. Tuaimau was notified of the outcome of the review and those reasons.
Reviewable decision
3 The reviewable decision is that confirming the Commissioner’s decision to refuse Mr. Tuaimau’s licence application. On 19 August 2003 Mr. Tuaimau applied to this Tribunal for review of the Commissioner's decision. The matter was listed before me on 26 August 2003 at which time I made directions for the filing of documents and the matter was listed for hearing on 29 September 2003 and proceeded on that day.
Background
4 There is some dispute between the parties with respect to the circumstances that lead to the Commissioner's decision to refuse Mr. Tuaimau’s licence application. Mr. Tuaimau disputes some aspects of the facts sheets prepared by the Commissioner for use in Local Court proceedings but not relied on in those proceedings. He also disputes the Commissioner's reliance on the facts sheet prepared by the Commissioner for use in Local Court proceedings concerning a charge for "Common Assault". Mr. Tuaimau defended that matter and the charge was dismissed.
5 The findings of fact reached by the Commissioner’s delegate and outlined in the reasons provided following the internal review decision were as follows:
- “4. After considering this material I find as a fact the following:
· On 31 July 2000, you were charged with "Common Assault" and this matter was dismissed at Penrith Local Court on 12 October 2000.
· On 30 June 2002, you were charged with "Resist or hinder police officer in the execution of duty", you appeared on 5 December 2002 at Newcastle Local Court and you were found guilty, without proceeding to a conviction and dismissed under the provision of Section 10 of the Crimes (Sentencing Procedure) Act 1999.
· On 22 September 2002, you were charged with "Resist or hinder police officer in the execution of duty"; you appeared at Newcastle Local Court on 1 May 2003 and were convicted and fined the amount of $400.
· On 14 April 2003, an application for a Class 1 ABC security licence was received.
· On 19 May 2003, the "Notification of Refusal for the Grant of a Licence under the Security Industry Act 1997" was served upon you by way of post.”
6 Ms. Buchanan, Solicitor for the Commissioner, submits that whilst the assault charge against Mr. Tuaimau was dismissed after Mr. Tuaimau's fiancée gave evidence, this incident is still relevant because that incident caused Mr. Tuaimau's fiancée to contact Police and make a complaint. Mr. Tuaimau was then charged with an offence. Ms. Buchanan argued that it is not uncommon in domestic situations for the victim to retract her statement or give inconsistent evidence to the facts sheet.
7 In contrast, Mr. Tuaimau denied the offence and the charge was dismissed. Mr. Tuaimau also gave evidence with respect to the events that lead to the other charges and his convictions and disputed much of the material contained in the facts sheets referring to those events. Mr. Tuaimau’s brother Bernard also gave evidence with respect to the events that lead to the charge of "Resist or hinder police officer in the execution of duty" and in his evidence he disputed the version of events contained in the facts sheet.
8 Mr. Goldberg, Solicitor for Mr. Tuaimau, submitted that it is inappropriate to rely on the facts sheets that the Commissioner has put in evidence because those facts sheets relate to a number of charges some of which were dropped. The facts sheets cannot therefore be relied on as accurately representing what was before the Magistrate when the charges were heard.
Nature of proceedings
9 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. “The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made” (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).
10 These are not adversarial proceedings in which Mr. Tuaimau carries an onus of proof. Mr. Tuaimau, by making the application, triggers a process of merits review by the Tribunal. Mr. Tuaimau does not take on the responsibility of having to prove a case, nor does he cause the Commissioner to have to prove a case. Mr. Tuaimau and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the ADT Act.
11 Section 63(1) of the ADT Act provides that in determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law. It makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).
12 When there is a fact in issue as to the existence of which the Tribunal must be satisfied, it must be satisfied to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).
Applicable Legislation
13 Section 15 of the Act provides:
- “15 Restrictions on granting licence--general suitability criteria
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:
- (a) is not a fit and proper person to hold the class of licence sought by the applicant, or
(b) is not of or above the age of 18, or
(c) does not hold the qualifications and experience prescribed by the regulations in respect of the class of licence sought by the applicant, or
(d) is not competent to carry on the security activity to which the proposed licence relates, or
(e) is not an Australian citizen or a permanent Australian resident.
(3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.
(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a licence.
(5) A reference in this section to an applicant includes, in the case of an application for a master licence, a reference to each close associate of the applicant.
(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:
- (a) is relevant to the activities carried out under the class of licence sought by the applicant, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
14 The issue for this Tribunal is: what is the correct and preferable decision? The decision to be made is whether it would be contrary to the public interest to grant Mr. Tuaimau a security industry licence.
The Commissioner’s Case
15 The Police Service’s file was put in evidence and the Commissioner relied on the documents contained within that file. The Commissioner argues that the grant of the licence would be contrary to the public interest.
16 The reasons provided following the internal review stated:
- “D. REASONING PROCESS:
- 6. The Security Industry Act, 1997 established a scheme for licensing people to carry on security activities. Within the Act, there are clearly defined circumstances where the Commissioner may refuse to grant an application for a licence. I have formed the view that the legislative provision listed above is relevant to your particular case. Further, I have considered the submission made by you.
7. After fully and independently considering all relevant matter, I make the following fresh determination.
8. Your application has been received for a Class 1ABC security licence:
- The duties authorised by a Class 1A licence include the guarding and protection of persons and property including the transport of cash and other valuables (hotel, club revenue and gaming machine takings), static and mobile patrols and security monitoring station activities; The activities authorised by a class 1 B licence include providing close personal protection. The duties authorised by a class 1 C include engaging in crowd control activities at public and private venues which may include public exhibitions and concerts, monitoring access to licensed premises, hotels, clubs, nightclubs, etc and ejecting patrons from these venues.
10. Regarding the term, 'public interest' "The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.”
11. It is my understanding that the authority conferred upon the holder of a security licence is granted by the Commissioner of Police with the clear expectation that the licensee utilizes that authority for the good order of society and for the well being of its members or 'in the public interest'.
12. I consider that the need for you to obtain a security licence is subordinate to the need to ensure public safety; Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 provides:
- "The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation.”
- "[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 grounds 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.”
14. Finally, I have taking into consideration your submission and the testimonials presented on your behalf. However, public interest in the context of Section 15 (1) {3) of the Security Industry Act 1997 requires paramount consideration be given to public safety and I am not in a position to convince the public that you currently possess the capability to properly carry out the duties authorised by the Class 1ABC licence. I also find that I am unable to instil public trust and confidence that you would react in a manner expected to the varying work pressures and situations, which by nature of the activities performed as a security guard, can be aggravating, unexpected and extreme. Accordingly, I am satisfied that it would not be in the public interest for you to be granted a licence.”
17 Mr. Tuaimau presented affidavit and oral evidence and was subjected to cross-examination. Mr. Tuaimau’s mother and brother also presented evidence on his behalf. His case is essentially based on the argument that the events which lead to the charges brought against him are not accurately reflected in the material on which the Commissioner relies and that the true facts are not such that would lead to a finding that it is not in the public interest that he hold a security licence. Mr. Tuaimau also submits that he is a fit and proper person to hold a class 1ABC licence.
18 Mr. Tuaimau is involved with many community activities within his local and the wider community. His community involvement has included work with the Catholic Church Samoan Community, the St Vincent de Paul Society and the Legion of Mary. He has worked with his parents who are involved with a police community program known as the Western Samoan Support Counsel. He choreographs traditional Island dance and teaches others about his culture. He has also excelled in sport and academically.
19 In his affidavit dated 26 September 2003 Mr. Tuaimau provided an account of the events that lead to the charges brought against him and his subsequent convictions. This affidavit also provides a reasonable outline of his case. Mr. Tuaimau’s affidavit states in part:
- “4. Also included in the [Police Service file] is a reference to a series of charges of the 30th June 2002. The matters came before the Newcastle Local Court on 5th December 2002 and at that time upon the advice of my legal representative, I pleaded guilty to a charge of resisting or hindering a Police Officer in the execution of his duty. I understood that the Prosecution would accept that plea in satisfaction of the matters that brought me to the Court and that the remaining charges would then be withdrawn. I understood that the Prosecution accepted this proposition and when the matters came before the Court the Magistrate then exercised his discretion under s. 10 of Crimes (Sentencing) Act and did not proceed to conviction in the matter.
5. I had previously informed my lawyer that the facts as prepared by the Prosecution were inaccurate. Those facts alleged that the Police were informed that "I had previously been barred from the premises for causing unrelated problems". That statement is wrong - I had never been barred from those premises on that evening or any other evening.
6. The background to the events of that evening is as follows: -
- (i) In company with a number of friends I arrived at the CBD Hotel at approximately 2.10am on 30th June 2002. I met my girlfriend, Teuila Vehikite at the Hotel. At that time she was in company with another friend of mine, a security guard whose first name is Pana. I am not aware of his surname. A short time after my arrival I was approached by a man who I now know to be Bobby Tuimanaluga who is a Pacific Islander. Without warning he punched me on the side of the head. When he then aimed a second blow at me, I ducked and avoided it. With that, some security personnel grabbed hold of me and pushed me out of the Hotel. I tried to explain to them that I had just arrived and that my girlfriend was waiting inside for me and that a man had just attacked me. The security personnel would not listen to me and a Police Officer then arrived. I tried to explain what had happened but he said he was not interested and that I should just go away. I said "that is not fair, I have not done anything wrong" and when he again told me to leave, in frustration I admit I sworn at him. I said "I'm not fucking going, not until you listen to me". I did not make the statements set out in the full facts included in Section 4 ADT file.
(ii) I deny that I was well affected by alcohol as was alleged. I had earlier attended a BBQ at a friend's home and because I had been the designated driver I had had very little to drink. I further deny that I was aggressive to the Police. I say that when told by the Police Officer that I was arrested I said to the Police Officer "what are you going to arrest me for?" the Police Officer then produced a capsicum spray and sprayed in the face. He then pulled me up to a Police wagon and pushed me inside. I was not in any condition where I could have used any force or hindered the Police Officer as a consequence of having been sprayed in the face.
(iii) I was not aware that Mark Lupton had become involved in the matter until I later saw him in the police wagon. I did not ask him for assistance or for him to be involved and I do not believe that I should be held responsible for anything that he might have said or done.
(iv) I believe that the Magistrate who heard the matter accepted a submission made in that vein by my solicitor.
8. This occurred and the Presiding Magistrate imposed a fine of $400 in respect of the charge of resisting or hindering the Police Prosecution in the execution of his duty and the Prosecution did withdraw the other three charges.
9. I had previously informed my lawyer that the facts as prepared by the Prosecution were inaccurate. I say that what occurred is as set out hereunder: -
- (i) On 21st September 2002 I travelled to Sydney to visit my mother who was in the Intensive Care Unit at Mt Druitt Hospital. I returned to Newcastle in company with other members of my family and their young children. A number of the members of the family including my girlfriend and three of her female relatives decided about 1lpm to go to the Brewery Hotel.
(ii) At the Hotel, my brother Bernard had an altercation with another person who was from Tonga. I was told of this and I remonstrated with my brother as to his behaviour. A man then walked between my brother and myself and my brother struck him. I was not prepared to be involved and I immediately left the hotel. I was not involved in any assault.
(iii) I was not asked to leave the Brewery Hotel but left of my own accord and my girlfriend who saw me leave then followed me outside and joined me.
(iv) We walked over the road away from the Hotel and waited to see whether any other members of the family would also be leaving. A short time later others came out. Whilst I was asking them what had happened, the Police arrived. The Police then arrested some of my relatives including my brother Bernard who then broke away from those Police Officers and ran up the street. I did not trip Sergeant Edwards as alleged or have any contact with him.
(v) Senior Constable Rose (the female Police Officer referred to in the Statement of Facts) told me to stand against the wall. I did so. Bernard then returned and there was a struggle between Bernard and Police Officers. He was knocked to the ground by the Police and struck by the Police Officers with batons. I said "you don't have to do that, he's on the ground he can't do anything." One of the Police Officers turned to me and sprayed me in the face with capsicum spray. I was then conveyed to the Police wagon and was subsequently treated for the effects of the spray.
(vi) At no time did I exert any physical force against any Police Officer. I was informed by my Solicitor that my approach to the Police Officers to stop hitting my brother with a baton was technically sufficient to establish a charge of hindering the police in the execution of their duty. On the basis of that advice I pleaded guilty to that charge but maintained that I would defend any other charge laid against me in respect of the events of the 22nd September 2002.
11. I have been intimately involved with Police Officers in promoting better understanding between Pacific Islanders and the Police Force. I will produce a testimonial in respect of same when this comes to hand.
12. I have at all times been conscious of the necessity of maintaining a good relationship with Police Officers and believe that I am well respected as a consequence of this attitude.
13. I believe that I am a fit and proper person to hold a class 1ABC licence.”
20 Under cross-examination Mr. Tuaimau conceded that he made no formal complaint about his assertion that he was twice unjustifiably subjected to the use of capsicum spray. He said that he had complained at the time but did not lodge a formal complaint because he did not want to pursue the issue.
21 The evidence presented by the witnesses who appeared on behalf of Mr. Tuaimau was consistent with that in his affidavit. Mr. Tuaimau’s mother gave evidence of being told about the 22 September 2002 incident and that Bernard had admitted his involvement to her. She had told Bernard to accept responsibility for his actions and Bernard gave evidence in the Newcastle Local Court about his involvement in the incident. She also gave evidence of Mr. Tuaimau’s position of respect in the Samoan community. Several written testimonials were provided in support of Mr. Tuaimau’s application. While those testimonials make no reference to these proceedings or to Mr Tuaimau’s convictions they support the position put by Mr. Tuaimau that he is honest and reliable and a man of great integrity.
Submissions
22 Ms. Buchanan, on behalf of the Commissioner, submitted that the issue for determination is one of public interest and not one of whether Mr Tuaimau is a fit and proper person. Therefore the evidence relating to Mr Tuaimau’s character is not relevant. She submitted that the weight of evidence provided supports the Commissioner’s position. Ms. Buchanan urged the Tribunal to conclude that the evidence reveals that Mr Tuaimau has a problem controlling his temper, is abusive and aggressive. He has demonstrated a pattern of behaviour which is not appropriate for a security guard. Ms. Buchanan submitted that when weighing the conflict between the facts sheets on which the Commissioner sought to rely and the evidence given by Mr Tuaimau and his witnesses, the Tribunal should note that Mr Tuaimau’s contradictory evidence came at a late stage.
23 In addition to these oral submissions, Ms. Buchanan also filed written submissions in the following terms:
- “Grounds for Revocation
- Section 15 (3) of the Security Industry Act 1997 states that the Commissioner of Police may refuse to grant a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest.
Application to this case
By way of background the applicant has been charged by police on 3 separate occasions. The three incidents were as follows:
30 June 2002
Common Assault against fiancé. The police facts sheets indicates the assault involved both verbal and physical abuse. The Applicant tackled his fiancé, placed his forearm against her neck and continually pushed her to the ground. The applicant picked his fiancé up using her leg and neck and slammed her body back onto the ground. He then rubbed a handful of dirt into her face and elbowed her in the head. The Applicant's Fiancé attempted to flag down cars driving by. Some concerned drivers stopped. The Applicant abused each driver that stopped to assist. The first two cars drove away and called the police. The Applicant's fiancé contacted police when she was taken home. The Applicant's fiancé suffered bruising to the wrist and left knuckle, a swollen lip and soreness to the back of head and back area.
The Applicant attended the Mount Druitt Court where the charge was dismissed. I understand this occurred after the applicant's fiancé gave evidence. Whilst the charge was dismissed the respondent submits that this incident is still relevant. This incident caused the applicant's fiancé to contact Police and make a complaint. The applicant was then charged with an offence. It is not uncommon in domestic situations for the victim to retract her statement or give inconsistent evidence to the facts sheet.
30 June 2002
The Applicant was barred from the CBD Hotel for causing problems and had refused to leave the hotel when Police arrived at the Hotel for an unrelated matter. The Applicant was abusive to security escorting him out of the Hotel and attempted to return inside the premises. He was described as continually aggressive and heavily abusive towards the Police. The Police attempted to arrest the Applicant for Offensive language but the Applicant pulled away from attempts to hold him. The Applicant was sprayed with OC spray and the Police attempted to place him in the rear cage of the Police truck. The Applicant was then charged with resist arrest. He was also charged with Fail to Quit licensed premises.
The Applicant attended Newcastle Local Court for these charges on 5 December 2002. He was found guilty but with no conviction recorded of resist or hinder police in the execution of duty, use offensive language in/near public place and fail to quit premises.
22 September 2002
The Applicant had attended the Brewery Hotel with a number of his brothers. It appears that for no apparent reason the applicant began to punch and kick an unknown male. Security intervened and moved the Applicant and his brother to a balcony area. A security officers were bitten and punched by the Applicant's brother. Police were called and by the time police had arrived the fight had now moved to the other side of the roadway. When police approached the applicant and his brothers they immediately became aggressive. A Police officer attempted to arrest the Applicant's brother who was running down the road. When the officer attempted to give chase the Applicant tackled the officer into the roadway and began to strike him about the face and body. Another officer came to assist and the Applicant punched that officer in the back of the head causing her to fall to the ground. The Applicant attempted to assist his brother in escaping police. When he was being arrested the Applicant resisted arrest by refusing to enter the police truck by bracing his arms against the door frame.
The Applicant attended the Newcastle Local Court where he was convicted of resist or hinder police officer in the execution of duty. The charges of Affray, assault police officer and more than 3 people use violence cause fear were withdrawn.
The above incidents reveal a pattern of aggressive behaviour towards the public and in particular police officers. It would appear that the applicant does not learn from his mistakes and has problems controlling his temper.
It is also interesting to note that two of these incidents occurred at licensed premises and involved abuse and aggression against security staff. This is not the way for a security guard to act.
The Applicant has challenged many of the facts outlined in the police facts sheets. But what he cannot challenge is that he has been found guilty of the following offences:
· resist or hinder police
· use offensive language in/near a public place
· fail to quit premises
- He cannot challenge the fact that he has been convicted of resist or hinder police.
He has challenged the facts that led up to the offences but the respondent submits that the Tribunal should take into account the fact that it is not simply one offence with which he was charged and he plead guilty simply to avoid a conviction. This happened again in September 2002. On the first occasion in June 2002 the magistrate found the offences proven but recorded no conviction. In using section 10 of the Crimes (Sentencing) Procedures Act the Court can take many things into consideration. For first offences it is not uncommon for the Court to give a section 10 so as not to mar the record of the defendant in a matter. However when the applicant was charged with resist or hinder police again in September 2002 the Court has not used section 10 they have recorded a conviction. This is relevant as to whether it is against public interest to issue a security licence to the applicant. Obviously he did not learn from his mistakes.
In the second Reading speech, the Hon Paul Whelan indicated that security guards would be involved in the "wider policing functions". It has been said that security guards play a "special role in ensuring that public order is maintained in safe guarding community assets and private property and in ensuring that the public and public venues are safe". (Haining v COP [1999] NSW ADT 6 at 47.
The respondent submits that the Security Industry Act 1997 charges the Commissioner of Police with an important discretion, which must be exercised mindful of the public interest. The Tribunal must satisfy itself the same question that the COP would, "What would the public's attitude be to a person with the applicant's criminal history being issued a licence to be entrusted to a position that relies strongly on the Applicant being calm and reasonable in stressful situations”. It cannot be denied that this type of licence means that the applicant will be in situations where there may be, or there is a real likelihood of verbal abuse suffered regularly.
Would the public accept that this Applicant should be permitted to be licensed in an industry and "take part in the wider policing function"? - (The Hon Paul Whelan, Minister for Police- reading speech. Hansard (2089, 19/11/97.)
The Applicant has shown that he has little respect for authority. This has been demonstrated when security guards have asked him to leave licensed premises and he has refused, and has also been demonstrated on more than one occasion when police have been called and he has resisted or hindered police.
It is the respondent's submission that the interests of the public would outweigh the applicant's personal interests at this time. The Respondent made the correct and preferable decision.”
24 Mr. Goldberg, on behalf of Mr Tuaimau, submitted that the evidence did not demonstrate that there is any public interest issue that would preclude Mr Tuaimau being granted the licence he seeks. He argued that it would be inappropriate for the Tribunal to consider the facts sheet relating to the assault charge that was dismissed by the Local Court. He further argued that the Tribunal should disregard the facts sheets relating to Mr Tuaimau’s convictions that the Commissioner has put in evidence, as the information contained in them does not necessarily reflect what was before the Local Court. He submitted that the Commissioner’s decision was wrongly influenced by the facts sheet relating to the 30 June 2002 assault charge and relied on inaccurate facts in relation to the later charges.
25 Mr. Goldberg submitted that the facts surrounding Mr Tuaimau’s convictions must be taken into account and the Tribunal should accept the evidence presented by Mr Tuaimau and witnesses who gave evidence in support of his application. In deciding what is the correct and preferable decision the Tribunal should consider whether the conduct for which Mr Tuaimau has been convicted is likely to reoccur and should form the view that this is unlikely. He submitted that the evidence shows that Mr Tuaimau is a person who is involved in a range of community activities and it is in fact in the public interest that a person of Mr Tuaimau’s character should be in the security industry.
Reasons and decision
26 On the evidence before me I am satisfied that Mr. Tuaimau has been convicted of the offences as asserted by the Commissioner. This is not in dispute. I have considered the facts sheets that the Commissioner has put in evidence. I note that the Police Officers who prepared the facts sheets were not called to give evidence. The Tribunal is not entitled to disregard the fact of Mr. Tuaimau’s convictions however, in these circumstances it is appropriate to consider the evidence of the events that lead to the laying of charges against Mr. Tuaimau.
27 Given the evidence presented by Mr. Tuaimau and his brother Bernard I consider that the facts sheets should be given little weight. In contrast, I found Mr. Tuaimau to be a credible witness who provided a plausible explanation of the events leading to his convictions. I also note that Bernard gave evidence against his own interests and I accept his evidence.
28 It is unfortunate that Mr. Tuaimau’s affidavit was served very late in the proceedings. I accept that this was a consequence of Mr. Tuaimau also receiving the Commissioner’s evidence very late. Notwithstanding the late service of the affidavit, I am satisfied that the Commissioner had a reasonable opportunity to address the evidence and was not disadvantaged by the late service of the affidavit.
29 The reasons provided in relation to the internal review decision correctly state the law in relation to the public interest considerations. It is apparent from the views expressed by the Appeal Panel at paragraph 25 of its decision in Toleafoa v Commissioner of Police [1999] NSWADT 9 that the "public interest" is an inherently broad concept and that in choosing whether to exercise a discretion on that basis a wide range of factors may be taken into account. It is also apparent that the public interest discretion operates in areas in which Mr. Tuaimau’s character is of secondary concern.
30 I do not understand the Appeal Panel decision in Toleafoa to totally preclude any consideration of Mr. Tuaimau’s character. At paragraph 26 of its decision the Appeal Panel referred to a factor relating to that applicant’s character (the absence of any additional adverse information in respect of the applicant's criminal record since an earlier date relevant to that matter) and stated that this was “a relevant matter, both as to the exercise of the character discretion and as to the public interest.” It appears therefore that the Appeal Panel considered it appropriate to give some weight to such factors in exercising the public interest discretion. Nevertheless, the overriding interest is that of the public as distinct from the interest of an individual or individuals.
31 In the circumstances of this matter, after considering the additional evidence that was available at the hearing, I do not agree that the conclusion the Commissioner’s delegate reached is the correct and preferable decision. I accept Mr. Tuaimau as a witness of truth. In my view, it is unlikely that he will repeat the conduct that lead to his convictions. If he does, he can expect little sympathy. On the evidence before me I do not accept that there are public interest reasons to refuse Mr. Tuaimau the licence that he seeks.
32 There is no dispute that Mr. Tuaimau has been convicted of various offences. These convictions do him no credit. The Commissioner has good cause to be concerned that the objects of the legislation are upheld in the exercise of his discretion. Without the evidence that was available to the Tribunal it is understandable how the Commissioner’s delegate formed the view that it is not in the public interest for the licence to be granted. Nevertheless, my decision is to be made taking into account all the available evidence and that includes evidence that was not available to the Commissioner’s delegate.
33 Having weighed the evidence, it is my view that the licence should be granted. Accordingly, it is appropriate in the circumstances that the Commissioner’s decision be set aside.
Orders
- The decision of the Commissioner of Police, NSW Police Service to refuse the application by Mr. Tuaimau for the grant of a class 1ABC licence under the Security Industry Act 1997 is set aside. In substitution for that decision, the decision is made that Mr Tuaimau is to be issued with a class 1ABC licence.
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