Ayoub v Commissioner of Police, NSW Police Force

Evidence

1. The Applicant provided two statements, dated 5 September 2022 and 11 October 2022, both with annexures. He gave evidence and was cross examined.
2. The Applicant also supplied a copy of transcript of the judgment of Culver DCJ dated 26 October 2021.
3. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act), and later, supplementary material.
4. While I was invited by the Respondent to view the offending child abuse material and other pornographic material, I did not consider that necessary to my Consideration.

Tribunal's approach

1. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal 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) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34].

On what basis was the Applicant's licence application refused?

1. On 30 October 2018, the Applicant was charged with "Disseminate Child Abuse Material-TV, (2 Counts)". On 7 November 2018, his licence was revoked on the basis that it was not in the public interest for him to hold the licence while he was the defendant in a serious criminal matter that was yet to be resolved.
2. On 29 January 2019, one of the charges was withdrawn. On 18 June 2021 the Applicant was found guilty of the remaining charge, was convicted but released on a Community Correction Order for a period of 2 years, commencing on 18 June 2021. He lodged a severity appeal and, on 26 October 2021, the order of the Local Court was varied: the Applicant was found guilty with no conviction recorded and he was released on a Conditional Release Order for a period of 2 years commencing on 26 October 2021.
3. It was only after the conclusion of the severity appeal that the Applicant then sought a fresh licence, his previous licence having expired in any event. The application was refused on the basis that the Applicant was considered to not be a fit and proper person to hold the licence sought, nor was it in the public interest that he hold such a licence. That decision was affirmed on internal review.

Respondent's contentions before the Tribunal

1. Before me, the Respondent relied on the Applicant having been found guilty in relation to disseminating a child abuse video. Further, and more broadly, it was submitted that the Applicant's general disposition to pornography affects whether he is a fit and proper person to hold a security licence and the public interest.
2. The Respondent also pointed to alleged irregularities in the Applicant's conduct since the charges with respect to his role in the Company.

Evidence in relation to the charge and the Applicant's interest in pornography

1. The Applicant gave evidence that he was part of several WhatsApp groups - some were associated with his interest in fishing and others, from various social groups. They would share amusing anecdotes, tropical comments, and, often, pornography. The Applicant would pass the material to other groups. He said he had tried, without success, to extricate himself from at least one of those groups, but they kept re-joining him.
2. One such exchange of pornographic material involved some 47 videos. One of the videos depicted child abuse material. It was this matter which gave rise to the charge against him under s 91H of the Crimes Act 1900. The Applicant had denied that he had viewed the video and said he had only passed it on, together with the other videos of which it formed part; he appeared, when questioned by Police, to be unfamiliar with the video in question. It is a defence under s 91HA(1) of the Crimes Act that the defendant "could not reasonably be expected to have known that he disseminated child abuse material". The Applicant was unable to make out that defence on the balance of probabilities, but as Culver DCJ said, that did not mean, beyond reasonable doubt, that he knew he was disseminating a video containing child abuse material. The Judge described the event as a "discrete" episode, which involved pressing a button which saw dissemination of the whole 47 videos, of which the offending child abuse video was but one.
3. Both the Magistrate and Culver DCJ accepted that there the Applicant received no sexual gratification associated with the child abuse video, nor did he receive a financial benefit from forwarding the material.
4. The Applicant was asked about a video which he had brought to Police attention depicting bestiality. He was unclear if he had forwarded the video, but ultimately said that he had.
5. After the hearing I was provided with information about the law that might apply to viewing such material. Bestiality is an offence: s 79 Crimes Act 1900. Section 6 of the Classification (Publications, Films and Computer Games) Enforcement Act 1995 provides, relevantly, that it is an offence to sell or publicly exhibit a film that is classified RC, and this includes realistic depictions of bestiality: Guidelines for the Classification of Publications 2003. "Film" is given a broad meaning and a form a visual image may fall within the definition. "Exhibit" is defined, s 4 as project or screen the film. It is unlikely that passing on a video with this subject matter falls within the definition. However, s 474.17(1) of the Criminal Code Act 1995 (Cth) provides, relevantly, that it is an offence to use a carriage service (which includes a phone) in a way that reasonable persons would regard as being, in all the circumstances, as offensive. There are some legal niceties around the concept of criminal offensiveness, and the cases to date appear to turn on the receipt of unwanted material. In the present circumstances, it appears the Applicant and other members of his sharing groups raised no objection. I observe that notwithstanding that the Applicant volunteered that he had seen and passed on a video depicting bestiality, no charge was laid in respect of that matter.

Evidence in relation to the Applicant's role in the Company

1. The Respondent submitted that the Applicant failed to disclose that he derives substantial income from the Company, and that he is a de facto director of the Company.
2. The Applicant said that since his security licence was (sic) suspended he has not undertaken any work that requires a security licence. He has continued to undertake administrative work for the Company, which employs 4 licensed locksmiths (including his brother and his son).
3. In his statement of 2 September 2022 the Applicant wrote, that, as the result of the revocation of his licence in November 2018 he has not been able to work as a locksmith and that in order for the business to continue trading he had to resign from all offices in the Company and divest himself of his shares in the Company. After he had been charged, he removed himself from the Master Licence and as a director of the Company. The business is now owned by his brother and son.
4. He also wrote that the financial impact upon him of the charge and (sic) conviction had been enormous - he had basically lost his career, his livelihood and the business that he had created and built up over 30 years. The Applicant said in cross examination that he had not lost all his income, but had lost the status of being a licensed locksmith.
5. The impact on the Company of the suspension of his security licence was substantial, he wrote, because the Company was no longer able to undertake specialty locksmith work (that is, locksmith work on safes for the Commonwealth Government facilities such as the Australian Taxation Office, the Immigration Department, the Australian Defence Force and Sydney Airport) as he was the only locksmith engaged by the Company who had certification from the Australian Government to carry out such work. This work was financially rewarding as there are a limited number of locksmiths who are certified and licensed to carry out that work and certification has to be renewed every two years. At the time when his security licence was suspended the Company held contracts with HMAS Garden Island and Sydney Airport. Since then the Company has not been able to carry out any such work. He provided an estimate by his accountant of the loss of revenue from these contracts: an estimated $36,000 per annum. Prior to the suspension of his security licence he undertook all the Company's specialty locksmith work as well as most of the duties he now undertakes.
6. He wrote that about 80% of the Company's work arises from emails from regular clients, most of whom are commercial real estate managing agents, strata managers and commercial building managers throughout the Sydney area. Each day he goes through the emails, and allocates the jobs to the locksmiths who are on the road, co ordinating the jobs by their location.
7. The remaining 20% of the Company's work comes in by telephone or walk-in customers. A staff member attends to work required by walk-in customers and he or the Applicant answer phone enquiries and then allocate any phone jobs to one of the locksmiths on the road. If hardware is required for a job being done by one of the mobile locksmiths, he or his staff member will collect that hardware from their store at the shop, package it for collection by the locksmith doing the job and organise for that locksmith to collect it. If that hardware is a lock that has to be built, his staff member builds it. After each job, the locksmith completes and submits a job sheet specifying the time spent and materials used and the Applicant co-ordinates those job sheets and his wife prepares and sends out the invoices to the customers. He generally co-ordinates invoices, and does the banking, most of which is done electronically. The Applicant said he manages the stock in the shop and the ordering of replacement stock. He occasionally cuts a key for a walk-in customer as long as it is not a security key, which his staff member cuts instead.
8. The Respondent referred to officers of the Security Industry & Enforcement Directorate (SLED) having attended upon the Company's premises on 17 August 2022. The Applicant was observed working at the premises but he said his role was restricted to answering phone calls, taking things off the shelf to give to his son and the only other employee, and helping them organise equipment before they went out on the road to do mobile locksmith jobs. As to how his role differed from previously, he said he would normally "never" be in the shop and would be "on the road".
9. The Applicant also told investigators that he received a wage for doing shop duties and answering the phone, but received no other financial advantage from the business.
10. The SLED investigators issued a Notice under s 390 of the SI Act for recent financial records of the Company:
11. The May 2022 bank records disclosed payments on 27 May 2022 of $1124 for "Ameen Ayoub Pay", $1124 for "Albert Ayoub" and $1126 for "Carl Ayoub Pay".
12. Similarly, the July 2022 bank statement (in respect of 1 week) records payments on 29 July 2022 of: $1490 for "Ameen Ayoub Pay", $1126 for "Carl Ayoub Pay" and $1490 for "Albert Ayoub".
13. The Applicant did not dispute that he continued to receive an income from the business. The Respondent submitted that it is significant that the Applicant received a regular pay that was equal to, or in excess of, that of his brother and son.
14. The May records also note payments of $100,000 to both the Applicant and his brother for "director's fee". The Applicant said this was mis-recorded as "director's fee"; he and his brother had each loaned the Company $100,000. Attached to the Applicant's statement of 11 October 2022 was a copy of Minutes of a director's meeting of the Company dated 13 December 2018 wherein the Applicant resigned as a director, and his shares were transferred to his son, Carl who was appointed as director. An additional item in the Minutes relates to a payout of the Applicant's loan to the Company in the sum of $100,000. The Company's balance sheet for the financial year ending 30 June 2018 recorded loans from directors exceeding $200,000. Following the suspension of his licence, the Applicant wrote, the remaining directors of the Company were concerned that the suspension would impact the financial viability of the Company so he agreed to delay the repayment of his loan to the Company. In May 2022 the Company's financial position was sufficiently stable for it to repay the loan of $100,000 from the Applicant and his brother.
15. Following the District Court decision, on legal advice he was reappointed as director of the Company, on 29 October 2021. This, in turn, led to the revocation of the company's Master Licence on 4 May 2022 but the Master Licence was restored on 25 May 2022 after the Company's legal representative sought an internal review which was supported by evidence that the Applicant had once more vacated the directorship of the Company.
16. His son Carl manages the business, he said, and he only provides Carl with "fatherly advice" and has no influence or control of the business. The Applicant said in his evidence that there had never been anyone engaged in work for the business who did not hold a 2BC licence.
17. The Company's vehicles carry the Company's name and logo and it has a website. The website advertises the contact number for the Company which is the Applicant's phone number. The Company has a Linkedin Account. From time to time the Applicant "likes" an entry on Linkedin showing a new product or making an announcement in the locksmith industry. The Linkedin page for Ameen's Locksmiths bears a photograph of the Applicant, beneath which appears the word "Boss", but the Applicant said, since he no longer has a licence, he does not feel like "the Boss" - he's "just the guy in the office doing the admin".

Is the Applicant a fit and proper person to hold a firearms licence?

1. The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, per Mason CJ. The expression "fit and proper person", on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: per Toohey and Gaudron JJ at 380.
2. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails."
3. In Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6 at [41], the President of this Tribunal's predecessor made the following comments in the context of the security industry: 41. Whether a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objectives leading the legislature to regulate the industry.
4. In Robinson v Commissioner of Police, NSW Police [2005] NSW ADT 5 at [30] Montgomery JM said: 30. The primary issue here is whether the Applicant is able to demonstrate qualities that would allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to these licences.
5. The charge of "disseminate child abuse material" was proven but no conviction was recorded. Nonetheless, the Applicant's conduct the subject of the charge is relevant to whether the Applicant is a fit and proper person to hold a licence: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 (Joseph) at [62] - [64]. It is the conduct rather than the conviction (or otherwise) that is of concern to the Tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70.
6. There can be no doubt that the dissemination of child abuse material is abhorrent. There was no dispute that the Applicant forwarded the offending video, as part of 47 other images/videos. He said he did not view it, but merely passed it on. I accept the legal nicety identified by Culver DCJ that, while the Applicant was unable to make out the statutory defence that he "could not reasonably be expected to have known that he disseminated child abuse material", that did not mean, beyond reasonable doubt, that he knew he was disseminating a video containing child abuse material. In sentencing the Applicant, the penalty imposed by the Judge was at the very bottom of the scale; the Judge described the event as a "discrete" episode, which involved pressing a button which saw dissemination of the whole 47 videos, of which the offending child abuse video was but one.
7. I accept that the Applicant made a serious error of judgment in forwarding the offending material. He was said to have received thousands of images from the groups, but only one image was found to relate to child abuse material. At best, in forwarding the group of 47 images to others, he, whether intentionally or otherwise, took the risk that in amongst the material forwarded to him which he sent on, there may be some material depicting child abuse.
8. The Applicant's counsel conceded it was a "serious error" and the Applicant was said to have disassociated himself from the groups to which he was part. The offence was now 4 years ago. In 30 years as a locksmith he has never come to adverse attention.
9. The Respondent submitted, more broadly, that the Applicant's interest in pornography generally was sufficient for the Tribunal to have concerns as to whether Tribunal and the public could have confidence in his honesty, knowledge and capacity in relation to his licence. The advocate for the Respondent hypothesised that the Applicant, as a locksmith may be called late at night to assist a vulnerable person, and may have access to so enable him to install surveillance cameras such as in toilets or changerooms which could capture activities of vulnerable persons. There was no evidence whatsoever that the Applicant, in his 30 years as a locksmith has ever engaged in any improper activity in that capacity. Furthermore, and as to the broader submission on behalf of the Respondent, there was no evidence that a person with an interest in standard (as distinct from child) pornography necessarily engages in inappropriate activities.
10. In my view the Respondent's submission is misplaced. The Respondent did not differentiate between the wholly abhorrent activity of child sexual abuse, including child pornography, and standard pornography. There is nothing illegal about viewing standard pornography; a great many people, I understand, engage in the pastime and, presumably, derive some enjoyment from doing so. While some people may regard this interest as distasteful, that view can only be on some moral ground they seek to impose on others; it does not necessarily reflect the views of the community as a whole.
11. In the context of a firearms licence, objectionable conduct, does not necessarily preclude a finding that he is a fit and proper person to hold such a licence. In Grant v Commissioner of Police [2020] NSWCATAD 158 Dr Lucy SM found the applicant in that matter to be a fit and proper person notwithstanding a criminal history of trespassing, illegal hunting, reckless driving, driving whilst suspended, speeding, fighting and cultivating cannabis. In Newman v Commissioner of Police [2018] NSWCATAD 17, NS Isenberg SM issued a licence to an applicant who had previously been a long term member of the Gladiators OMCG. In EMB v Commissioner of Police [2021] NSWCATAD 247 I found the Applicant to be a fit and proper person to hold a firearms licence notwithstanding that I was satisfied, on the balance of probabilities, that some years ago he had engaged in child sexual assault. These cases demonstrate that, notwithstanding objectionable conduct, an applicant may still be considered to be a fit and proper person to hold a firearms licence. These principles equally apply in the context of a security licence.
12. As to the Applicant's activities with the Company, I accept that, the loss of the Applicant's licence in 2018 had repercussions for the Company. It lost, for a period, its Master Licence in 2018, and again recently. Both were restored when the Applicant instructed his solicitor (who is also the Company's solicitor) to attend to his shareholding and directorship which had been adversely affected by, first, the Applicant's conviction in the Local Court, and, later, because of the refusal, the subject of this application. I accept that the Applicant, although a successful businessman, is relatively unsophisticated and relied on his solicitor and accountant to regularise the Company's structure as the Applicant's circumstances changed. He endeavoured to ensure that the business continued to function notwithstanding his loss of licence, and this is entirely appropriate.
13. As to the evidence in relation to the Applicant receiving income from the Company, I accept that the Applicant continues to draw a salary but that his role has been restricted because of his loss of licence. He fulfills, nonetheless, what is apparently a valuable role and he is remunerated accordingly.
14. There was a recorded loan in the Company's balance sheet, which the Company resolved to repay in 2018, and which was subsequently repaid when the Company's circumstances were more favourable. As to the Applicant's loan to the Company, I accept its repayment was misdescribed by the Applicant.
15. The Respondent submitted that the Applicant's conduct demonstrated a lack of integrity and a capacity for dishonesty that meant that he was not a fit and proper person within the meaning of the SI Act. I do not agree. For the reasons given above, I consider that the Applicant is a fit and proper person to hold a class 2BC security licence.

Public interest

1. The Respondent also contended that it is not in the public interest for the Applicant to hold a security licence: s 11(3) of the SI Act. The term is not expressly defined in the SI Act. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25], in the firearms context, the Appeal Panel said that the "public interest" is an inherently broad concept giving the Commissioner (and hence the Tribunal on review) the ability to have regard to a wide range of factors in deciding whether to exercise a discretion adversely to an individual.
2. The discretion to make a decision in the public interest is not confined except by the scope and purposes of the legislation itself: see DMC v Commissioner of Police, NSW Police Force [2018] NSWCATAD 219 at [15]. The Tribunal must exercise its discretion in determining this review in a manner that promotes the principles and objects of the relevant Act: Cusumano v Commissioner of Police, NSW Police Service [2001] NSWADT 50, at [23].
3. The Tribunal is required to look at the Applicant's conduct as a whole, including potential future conduct. It is well established that the likelihood of public safety risks is to be assessed by reference to an applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. Past conduct of the Applicant is a significant guide in assessing likely future conduct: see for example, Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156 at [141]. From the available evidence, the Applicant has dissociated himself from the groups who engage in the dissemination of pornography, which intentionally or otherwise, on one occasion, included child abuse material.
4. The Tribunal has determined that the public interest embraces the high standards expected of security licence holders. In McMicking v Commissioner of Police, NSW Police Force [2014] NSACATOD 95 Scahill SM discussed at [113] the concept of the "public interest" in the context of a security licence: 113 In Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 at 47, JM Montgomery analysed the objects of the SIA, and the public interest to be served in exercising the discretion to revoke a licence on public interest grounds: The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130 The security industry has a special role ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe Haining v Commissioner of Police [1999] NSWADT 6.
5. In Nakad v Commissioner of Police NSW Police Force [2013] NSWADT169 (Nakad), I said at [57]: 57. The Security Industry Act 1997 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: Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 at [11].
6. Class 2 security licences authorise a holder to work in a wide range of specialist fields in the security industry, including working as a security consultant, selling, installing, maintaining and repairing security equipment, providing security training, brokering security contracts and working as a locksmith: s 12 SI Act. I accept that the Applicant requires a licence to personally engage in these activities, and, more particularly, to work as a hands-on locksmith in the business he has built up over 30 years.
7. The need for the Applicant to hold a security licence is subordinate to the need to ensure public safety: Agboma v Commissioner of Police New South Wales Police [2005] NSWADT at [12]. As I discussed in Nakad at [56] a security licence is a privilege not a right: ... It is imperative that the security industry is licensed by professional and responsible individuals that can achieve high standards of conduct required by the special nature of the industry: IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at [27]
8. A person who holds a security licence is a position requiring the public's trust. In Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 the Tribunal commented, at [11]: 11. 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 degree.
9. I have found that I consider the Applicant to be a fit and proper person to hold a security licence. I am not satisfied that there is evidence that demonstrates that the Applicant's past conduct would undermine public confidence in the licensing system nor that there would be concerns about safeguarding the community. Further I consider that there would be a very low level of risk to safety and property were the Applicant to again hold a class 2BC security licence. I therefore find that there is no reason to consider that it would be against the public interest for the Applicant to hold a class 2BC security licence.

DECISION 1. The decision under review is set aside and the Tribunal substitutes a new decision to grant the Applicant a class 2BC security 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2022