Al-Dala'in v Commissioner of Police, NSW Police Force [2026] NSWCATOD 50;

1. According to the Fact Sheets, on 13 September 2024, the Applicant was driving his father's car when he merged into the third lane of the highway at high speed and collided heavily with another vehicle, causing it to veer, spin and crash into the guard rail. After that collision, the Applicant continued merging into the third lane and hit the side of another vehicle. Emergency services were called and the driver of the first vehicle was taken to hospital by ambulance, having sustained extensive bruising to her lower legs and arm.
2. Police estimated that the Applicant had been driving in excess of 150km/h, when the speed limit was 110km/h. Initially, the Applicant told Police that he was responsible for the accident. Later, he claimed that a car had swerved into his lane and then drove off, causing him to veer into the right-hand lane and collide with the vehicles on his right. A witness to the accident told Police, however, that she did not see any vehicles swerve towards the Applicant, and that the Applicant overtook her at high speed and then collided with the vehicles; her account was supported by dash-cam footage.
3. The Applicant was convicted under s 14 of the Children (Criminal Proceedings) Act 1987 (NSW) of "[c]ause bodily harm by misconduct, in charge of m/v TI" (under s 53 of the Crimes Act). He was ordered under s 33(1)(b) of that Act to enter a good behaviour bond for 12 months. He was also charged and convicted of "drive recklessly/furiously or speed/manner dangerous -1st offence" and was disqualified from driving for 12 months.

Does the conviction under s 53 of the Crimes Act fall within s 16(1)(a) of the SI Act and cl 15(1)(c) of the Regulation?

1. The Applicant's primary submission was that s 53 Crimes Act is not an offence involving assault within the meaning of cl 15(1)(c), but is a "driving offence" which "does not require proof that the accused intended to apply force to another person, or that the accused foresaw or intended to cause apprehension of immediate unlawful violence". The elements of s 53 require misconduct, negligence or wanton/furious driving causing bodily harm while in charge of a vehicle; the offence does not require any assault element, namely no intentional or reckless application of unlawful force and no apprehension of immediate violence. The Regulation's phrase involving assault, however, it was submitted, confines the category to assault-type offences and to read it to include any bodily harm offence impermissibly over-expands the operation of cl 15(1)(c).
2. To determine if an "offence" involves "assault of any description" requires first establishing precisely the "offence" in question. An "elements only" approach to determining what "offence" has been committed was discussed in the context what was an "offence involving dishonesty", by Bell J in Barber v Law Society of New South Wales (No 2) [2001] NSWSC 861 (Barbour) at [32] where, after referring to Kingswell v The Queen [1985] HCA 72; (1985) 159 CLR 264, her Honour said:.

"It seems to me that the crime or offence the subject of the conviction must be the one which answers that description without further inquiry."

1. Barbour was applied by the Tribunal's Appeal Panel in Farrah v Director General, Department of Finance and Services [2014] NSWCATAP 23 at [42]:

"...It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty 'without further inquiry'."

1. "Assault" is not defined in either the SI Act or the Regulation but cl 15(1)(c) of the Regulation refers to conviction of an offence involving an "assault of any description". Therefore, answering the description of an offence "without further inquiry" in this context means looking at the statutory provision creating the offence, the elements in the provision, and determining whether the Applicant has been convicted of an offence under that provision.
2. In R v Thornton [2024] NSWDC 77 (Thornton) at [23] Smith DCJ set out the elements of the s 53 offence as follows:

"The Crown must prove each element of the [offence] beyond reasonable doubt before the accused can be found guilty. Those elements are, relevantly, that the accused:

(1) Being in charge of a vehicle;

(2) By wanton or furious driving; or racing, or other misconduct, or by wilful neglect;

(3) Did (or caused to be done) bodily harm to another."

1. In Thornton, Smith DCJ said at [66], in the context of conduct that satisfies the element of "misconduct", that "[i]t does not matter for present purposes whether this was due to momentary inattention or a deliberate decision made by the accused".
2. Relevantly, in Aslan v R (2015) DCLR (NSW) 101 (Aslan) at [40], Nielson DCJ, in considering s 53 offences, analysed the meaning of "wanton" as follows:

"Driving at any pace other than a walking pace with persons sitting on the bonnet of a car is inherently dangerous, offers those persons the prospect of hurt or injury and therefore can properly be described as furious driving. In any event it appears to me that the conduct of the appellant was wanton. I am aware of a decision of one of my predecessors, Cooper DCJ in R v Bolton (unreported 14 May 1981) in which his Honour held that the word 'wanton' means unrestrained disregard of the consequences of the accused's action. The original meaning of 'wanton' as an adjective, meant undisciplined, ungoverned, unmanageable or rebellious. When used in connection with cruelty or violence, it meant unprovoked or reckless or gratuitous violence. When the adverb 'wanton' is used in respect to 'action' it means without regard for right or consequences, recklessly, gratuitously or wilfully. In my view, wanton is apt to describe reckless conduct. Anyone driving a vehicle with persons sifting on the bonnet of a vehicle at any speed, other than a walking pace is, in my view, acting with reckless disregard to the health and safety of those sifting on the vehicle. In my view, the appellant's actions were clearly wanton. Indeed, the admission that his driving was dangerous really answers that question." (Tribunal's emphasis)

1. It was submitted on the Applicant's behalf that, even if wanton can involve recklessness, it is not the "assault recklessness", namely recklessness as to applying unlawful force or causing apprehension, but "recklessness in the driving/misconduct sense". I do not accept this contention. The very nature of recklessness involves an indifference as to outcome, irrespective of the context. It does not follow that indifference to the outcome of one's actions while driving is lesser than the indifference to the outcome of one's actions otherwise.
2. It was also submitted that, in any event, s 53 of the Crimes Act is drafted disjunctively - it includes "furious", "misconduct", and "wilful neglect" pathways and that the offence does not convert into "assault" merely because one pathway can be described as reckless. Each of those alternatives - all in the context of driving - satisfy the requirement of assault.
3. On 4 December 2024, SM Dinnen gave an oral decision in Jalil v Commissioner of Police, NSW Police Force (Jalil), and a copy of the transcript was provided to me. In Jalil, as in the present matter, the applicant was also convicted of an offence against s 53 of the Crimes Act. That decision followed the interlocutory decision in Jalil v Commissioner of Police, NSW Police Force [2024] NSWCATOD 132 (interlocutory proceedings). The Applicant's solicitor observed that the Tribunal member who heard the interlocutory proceedings - which was an application by the Respondent for summary dismissal of the Application for Review - had considered it arguable that an offence under s 53 Crimes Act did not fall within s 16(1)(a) of the SI Act and cl 15(1)(c) of the Regulation. As counsel for the Respondent pointed out, the Tribunal in the interlocutory matter did not have before it the decisions in Thornton and Aslan.
4. In Jalil, SM Dinnen accepted that s 53 of the Crimes Act was an offence within the meaning of cl 15(1)(c) of the Regulation, being an "assault of any description". The Senior Member relied on Thorton which set out the elements of the offence in s 53, and Aslan, which analysed the meaning of wanton in s 53 as reckless conduct. The Senior Member described cl 15(1)(c) of the Regulation as "incredibly broad". She observed that it included assault of any description, offences in both Australia and overseas and the entire gamut of penalties imposable upon a conviction. In particular, she observed that it involved assault with and without deliberation or intent. She considered that s 53 of the Crimes Act is a criminal offence provision that falls within the Regulation's broad definition of assault, and that this is consistent with the purpose of the SI Act. As a result, the fact that the applicant was convicted of an offence under s 53 of the Crimes Act meant that the Tribunal had no discretion but to refuse his application for a security licence.
5. The Applicant submitted, correctly, that I am not bound by the decision in Jalil.
6. The Respondent submitted that the Tribunal should not look beyond the s 53 offence provision in determining whether the Applicant has, in the last 10 years, been convicted for "an offence under the law of any Australian or overseas jurisdiction involving assault of any description". It is sufficient that s 53 encompasses conduct involving the critical elements of assault - namely, causing actual bodily harm or causing the immediate apprehension of unlawful violence, and recklessness.
7. I agree with the Respondent's submission that the phrase "assault of any description" is broad and clearly intended to include a wide array of offending, both in Australia and internationally. There is no basis to adopt a restrictive approach to its meaning.
8. The Respondent pointed out that this approach produces clarity in the operation of s 16(1)(a) in that it operates to immediately disqualify people from being able to obtain a security licence. Would-be applicants can ascertain, by reading the SI Act and Regulation, whether they are automatically disentitled from holding a licence. Their position becomes more difficult to ascertain if an applicant must also consider the specific legal meaning of the words in the formulation of their convictions.
9. Because cl 15(1)(c) also includes offences involving assault in foreign jurisdictions this approach avoids the Respondent (and the Tribunal on review), having to undertake potentially complex inquiries into the application of foreign law in determining applications for security licences. If the alternative approach was preferred, the decision-maker would need to grapple with the niceties of the foreign law in order to undertake what should otherwise be a straightforward consideration.
10. This approach is consistent with the legislative purpose of the SI Act. In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11] the Tribunal described the purpose of the SI Act as follows:

"...The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard. The legislation was enacted to exclude from the industry persons convicted of prescribed offences. In this regard, criminal record checks are undertaken on a regular basis after licenses are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and revoking their licenses."

1. The approach that focuses on the elements of the offence better ensures that the "probity assessments" remain "stringent" and that applicants continue to meet "strict licensing requirements": see Explanatory Notes of the Security Industry Bill 1997 (NSW).
2. In Jalil, the Tribunal found the inclusion of "recklessness" as an element of s 53 is sufficient for it to be captured by cl 15(1)(c). I agree with that approach.
3. Having come to this view I must refuse to grant the Applicant the security licence sought under s 16(1)(a); there is no discretion with the respect to the decision to grant or refuse a licence where a mandatory refusal provision applies. It was therefore unnecessary for me to consider if the Applicant is a fit and proper person to hold a security licence or if it is in the public interest for him to hold such a licence.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.