XY v Commissioner of Police, New South Wales Police Service

[2001] NSWADT 145

CITATION:	XY -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 145 revised - 29/08/2006
DIVISION:	General Division
PARTIES:	APPLICANT XY RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	013174
HEARING DATES:	23/08/01
SUBMISSIONS CLOSED:	08/23/2001
DATE OF DECISION:	09/06/2001
BEFORE:	Higgins S - Judicial Member
APPLICATION:	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:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Security Industry Act 1997 Security Industry Regulation 1998
CASES CITED:	Krezeminski -v- Commissioner of Police, NSW Police Service [2001] NSW ADT 103 Betkoshabeh -v- Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463
REPRESENTATION:	APPLICANT In person RESPONDENT D Paterson, solicitor
ORDERS:	That the decision of the Commissioner of Police to revoke Mr XY’s class 1A, 1B and 1C licence is set aside.

Introduction

1 On 16 July 2001, Mr XY applied to the Tribunal pursuant to s.29(a) of the Security Industry Act, 1997 (”the Act”) and s.42 of the Administrative Decisions Tribunal Act, 1997 for a review of the decision of the Commissioner of Police (“the Commissioner”) to revoke his licence under the Act. The grounds for the revocation were that Mr XY was found guilty of a charge of assault with no conviction recorded. He was not considered a fit and proper person to hold a security licence and it was not considered to be in the public interest for him to hold a security licence.

2 At the time of filing his application to the Tribunal, Mr XY also made an application for an urgent stay of the Commissioner’s decision. That stay was granted on 18 July 2001 and was subsequently extended to 26 August 2001, the date his licence expired. Although, in some respects, this application is academic in that Mr XY’s licence has expired it remains of relevance, should he make a new application for a licence.

Facts not in dispute

3 On 28 August 2000, Mr XY was issued a Class 1A, 1B and 1C licence under the Act. A class 1A, 1B and 1C licence authorised Mr XY to patrol, guard, watch or protect persons or property, to act as a crowd controller or bouncer.

4 On 28 December 2000, Mr XY was charged with an offence of assault occasioning actual bodily harm and maliciously destroy or damage property arising from an incident between he and his wife that occurred the previous evening at their home. On the same day, Mr XY’s mother in law, who was also present the previous evening, obtained an Apprehended Violence Telephone Interim Order against him.

5 On 9 February 2001, Mr XY pleaded guilty to a charge of assault occasioning actual bodily harm (s.59. Crimes Act, 1900) and maliciously destroy or damage property (s.195(A), Crimes Act, 1900) before the Local Court at Burwood. The Court made a finding of guilt on both charges but did not record a conviction pursuant to s.10 of the Crimes (Sentencing Procedure) Act, 1999. In respect of the assault charge the Court placed Mr XY on a 12 month good behaviour bond.

6 On 9 February 2001, the Family Court of Australia made orders in accordance with “Terms of Settlement” entered into between Mr XY and his wife in respect of their daughter, born on 13 April 2000. So far as is relevant these orders provided for Mr XY to have access to his daughter at the offices of his father in law at specified times and specified days in the presence of his father in law. On the same day, Mr XY was served with a copy of the Apprehended Violence Order mentioned in paragraph 4 above.

7 On 30 March 2001, the Commissioner (through his Delegate) issued a Notification of Revocation of the Applicant’s licence stating that:
(a) he was satisfied that Mr XY had been found guilty (but with no conviction being recorded) of a prescribed offence involving assault;
(b) he was of the opinion that Mr XY was no longer a fit and proper person to hold a security licence; and
(c) he considered that it was not in the public interest for the Applicant to continue to hold a licence.

8 On Friday, 11 May 2001, Mr XY went to see his father in law at his office. His mother in law was also present and she contacted the Police to report a breach by Mr XY of the Apprehended Violence Order made against him.

9 Two days later, at about 9.30pm, on 13 May 2001, the Police attended the home of Mr XY who was arrested shortly thereafter and charged with an offence of resisting an officer in the execution of his duty (s.58 of the Crimes Act, 1900) and contravening an Apprehended Domestic Violence Order (s.562I of the Crimes Act, 1900). These charges are still pending and are to be heard on 12 October 2001. Mr XY informed the Tribunal that he had instructed solicitors and that he was defending the charges.

10 On 26 May 2001, Mr XY was served with the Commissioner’s 30 March 2001 Notification of Revocation of his security licence.

11 On 5 June 2001, Mr XY made a request for internal review of the Commissioner’s decision to revoke his licence. On 2 July 2001 the review officer confirmed the Commissioner’s decision. In confirming the Commissioner’s decision, the review officer had regard to the pending charges and the earlier charges for which Mr XY had been found guilty with no conviction recorded.

12 Mr XY has no previous convictions in Australia or Nigeria where he resided prior to February 1998.

Evidence

13 In support of his application, on 20 August 2001, Mr XY filed an unsigned letter in which he set out his explanation of the events surrounding all the charges against him. At the hearing, Mr XY explained that he did not know what was required of him for the purposes of his application. In light of this, during the hearing, he was sworn as a witness in his own case and on oath stated that the matters listed in his letter were true and correct.

14 Ms Paterson, who appeared on behalf of the Commissioner, cross examined Mr XY in respect of paragraphs 15, 16 and 17 of the letter which related to the 27 December 2000 incident at his home. The matters raised in the letter and the cross examinations are addressed below.

15 In addition to his letter, Mr XY filed the following material in support of his application:
(a) Copy of Family Court Order dated 9 February 2001.
(b) References from:

Rosie Katic of Roseys Model Management
Maria Jabbour of Lismore Holdings Pty Ltd
Elizabeth Makary of IPC ACP Magazines Australia
Nicole Kalache – a fellow employee
Kenneth Amegor – a friend
A. Belonojkin and Sadhai Aoun – a friend
(c) A Certificate of Competence issued on 15 August 2000 by the New South Wales Police Service in respect of training in specified aspects of security training. Mr XY explained that based on this training he worked as a security officer together with other police officers during the Olympic Games in Sydney.

16 Mr XY had also filed other references, which preceded the 28 December 2000 charges and others that were undated. Mr XY stated he did not rely on the references that preceded the 28 December 2000 charges and I have had no regard to those that are not dated.

17 Ms Paterson, on behalf of the Commissioner, relied on the Police Fact Sheets in respect of the charges.

The Legislation

18 The Commissioner’s power to revoke a licence are contained in s.26 of the Act and so far as is relevant to this application his powers are:
s.26(1):
A licence may be revoked:
(a) For any reason for which the licensee would be required to be refused a licence of that class;
(b) ………;
(c) If the Commissioner of is of the opinion that the licensee is no longer a fit and proper person to hold a licence; or
(d) for any other reason prescribed by the legislation.
19 Section 16 of the Act provides that the Commissioner must refuse to grant an application where the applicant has been convicted or, found guilty with no conviction being entered, in respect of a certain offence committed within a specified period of time. So far as is relevant the section provides:
s.16:
(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the Applicant:
(a) ………
(b) has, within the period of 5 years before the application for the licence was made, been found guilty ( but with no conviction being recorded ) by a Court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law” (emphasis added).
20 Regulation 11 of the Security Industry Regulations, 1998 identifies those offences which are prescribed for the purpose of s.16(1)(a) of the Act. This includes offences of assault. Regulation 11 provides so far as is relevant to this application:
Regulation 11
For the purposes of section 16(1)(a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales:
(a) ………
(b) ………
(c) Offences involving assault
An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being:
(i) an offence in respect of which the penalty imposed was imprisonment, or a fine of $200 or more, or both, or
(ii) in such cases where the Applicant concerned has been found guilty but not been convicted – an offence that, in the opinion of the Commissioner, is a serious assault offence ” (emphasis added).
21 In this case, Mr XY’s assault offence comes within the terms of regulation 11(c)(ii). However, in order for s.16(1)(b) of the Act to apply the Commissioner must be of the opinion that the assault in question is a serious assault.

22 Regulation 18 of the Security Industry Regulations, 1998 sets out the basis on which the Commissioner can revoke a licence under s.26(1)(d) of the Act. In so far as is relevant the regulation provides:
Regulation 18: In accordance with s.26(1)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it (emphasis added).

23 As mentioned in paragraph 20 above, an issue in this application is the proper construction of the term “a serious assault offence” in regulation 11(c)(ii) of the Security Industry Regulations, 1998.

24 In oral submissions Ms Paterson for the Commissioner agreed that in forming an opinion under this regulation on whether an offence was a “serious assault offence” the Tribunal was required to have regard to all the circumstances surrounding the offence.

25 Judicial Member M.A. Robinson recently considered this issue in Krezeminski -v- Commissioner of Police, NSW Police Service [2001] NSW ADT 103 where he stated at paragraph 19:
“In forming the opinion referred to in regulation 11(c)(ii), it is appropriate to have regard to the circumstances relating to particular offence concerned as it was found to have occurred and, in addition, to the whole of the facts relating to the particular offence that are or might relate to the seriousness of the offence as it was committed on that particular occasion. In other words, in my view, the whole of the circumstances relating to the offence are relevant. That will include the effect on the victim as well as the applicant’s state of mind and his motives at the time of the commission of the offence. It will also include a consideration of some matters that would ordinarily go to penalty or in mitigation of penalty”.

26 In support of his finding Judicial Member Robinson cited the decision of Betkoshabeh -v- Minister for Immigration and Multicultural Affairs (1998) 84 FCR 463 at 486E and 471E [Finkelstein J].

27 I agree with these findings that the formulation of an opinion on whether a particular finding of guilt of an offence of assault without a conviction being recorded is a “serious assault offence” is a question of fact to be determined from all the surrounding circumstances. However, to this I would add that in forming an opinion in each particular case, the Tribunal must also consider the surrounding circumstances of the offence charged in light of the underlying objectives of the Security Industry Act, 1997.

Findings of Fact

28 Ms Paterson for the Commissioner cross examined Mr XY in respect of paragraphs 15, 16 and 17 of his letter. In paragraph 17 of the letter, Mr XY stated that he had not inflicted the injuries on his wife on the evening of 27 December 2000. He stated that she had scratched herself. In paragraph 15, Mr XY stated that the mobile phone had dropped during the incident. Each of these matters were contrary to what was contained in the Police Statement of Facts which I note was prepared the following day. In response to questions by Ms Paterson, Mr XY agreed that he had seen the Police Fact Sheet at the time he pleaded guilty to the charges.

29 The Tribunal was not presented with any evidence from Mr XY’s wife or his mother in law in relation to the circumstances surrounding the assault. The only direct evidence was that contained in the letter of Mr XY, which was unchallenged except to the extent of the injuries inflicted and the damages done.

30 Similarly, the only direct evidence before the Tribunal in respect of the charges that were laid on 13 May 2001 were the statements made by Mr XY in his letter. These statements were not challenged by Ms Paterson in her cross examination of Mr XY.

31 Ms Paterson for the Commissioner relied on the Police Fact Sheets of 28 December 2000 and 14 May 2001, which I have had regard to and given the weight which I consider appropriate in light of there being no direct evidence of the statements contained therein.

32 Accordingly I find:- that Mr XY married his wife on 6 February 1999 and that their daughter was born on 13 April 2000. That prior to 27 December 2000, Mr XY and his wife had misunderstandings, which they resolved between themselves. There is no evidence that these misunderstandings involved acts of violence by Mr XY. That on the evening of 27 December 2000 his wife told him that she was going to have dinner with her father which Mr XY found to be strange as his wife had led him to believe that she did not have a close relationship with her father. He stayed home to look after his daughter and his mother in law was also present. Mr XY was jealous and when his wife returned home 4 hours later, they argued and there was a physical exchange between them including the throwing of soaked bread. That Mr XY deeply regrets his behaviour of that evening. I also find that no previous Apprehended Violence Order has been issued against Mr XY.

33 I also find that on 11 May 2001 Mr XY had attended the office of his father in law to make arrangements to resume his Sunday contact time with his daughter as ordered by the Family Court on 9 May 2001 pursuant to the settlement agreement between Mr XY and his wife. It was not through any fault of Mr XY that contact had ceased but was as a result of his father in law being absent in Europe for one month prior thereto. Mr XY had not seen his daughter during this period as contact with his daughter was restricted to this address and in the presence of his father in law. I find that it was reasonable for Mr XY to make contact on this day. I also find that Mr XY had no prior knowledge of his mother in law being present on this day and that he left the premises shortly thereafter. On 12 May 2001 Probationary Constable Pannell of Leichhardt Police Station telephoned Mr XY while he was at work in regard to his alleged breach of the Apprehended Violence Order and to arrange for Mr XY to attend the station. No fixed arrangements were made and at about 9.30pm on 13 May 2001 Probationary Constable Pannell and Constable Lyn Tuapola attended the home of Mr XY, who was tired and preparing to go to bed after working 12 hours. He was asked to get dressed and go with them to the police station in relation to the Apprehended Violence Order. Before they were about to leave, three other police officers came in.

34 Mr XY’s only means of support for himself and his daughter is his work as a security officer. The references filed by Mr XY all state that he is trustworthy, reliable, caring and diligent. However, the references, which are dated between 16 July 2001 and 19 August 2001 make no mention of the charges which Mr XY has been found guilty of or those that are pending. Mr XY in oral submissions stated that he was not aware of what was required and that the persons who had given him references all knew about the charges and the hearing before the Tribunal. Accordingly, as the references are recent in time, I find that his employees and friends regard him as being a person of generally good character.

Reasons

35 In my opinion, having regard to all the circumstances surrounding the finding of guilt of an offence of assault occasioning actual bodily harm, this was not a “serious assault offence” coming within Regulation 11(c)(ii) of the Security Industry Regulations , 1998 . The circumstances surrounding the offence arose from a domestic argument and while such an offence is serious, it was an isolated incident. The circumstances in which the offence was committed did not involve duties that Mr XY is required to undertake pursuant to his Class 1A, 1B and 1C security licences. In exercising these duties he is dealing with members of the public and there is no evidence that he acts or has previously acted violently in this regard.

36 In my opinion, from the evidence that has been presented to the Tribunal, the charges which were laid on 12 May 2001 also arise from the same domestic dispute and without any evidence from Mr XY’s mother in law and the arresting police officers, I must accept the uncontested evidence of Mr XY as to what happened on this occasion.

37 As a result of my findings, on balance, I am of the opinion that Mr XY’s conduct, including the conduct for which he has been found guilty, has not been such as to show that he is unfit to hold a Class 1A, 1B and 1C security licence or that the grant of a licence in these circumstances would be contrary to the public interest.

Decision

38 In accordance with s.63(3)(c) of the Administrative Decisions Tribunal Act, 1997 , I order that the decision of the Commissioner of Police to revoke Mr XY’s class 1A, 1B and 1C licence is set aside.