The applicant made an application for the licence lodged with the respondent on 15 August 2008.[1]
The application was made pursuant to the Private Security Act2004 ("the Act") which licences and registers participants in the private security industry, and regulates the private security industry of the purpose of ensuring public safety and peace.[2]
The applicant's application was granted on the basis of the application and the materials annexed to it.
On 23 December 2008 the applicant was driving a car on Webb Street, Narre Warren when it came into collision with a motorcycle.
The allegations made against the applicant arising out of that incident are contained in a police brief prepared for the purpose of the prosecution of the applicant.[3]
The particular allegations relevant to the decision under review are as follows:
the applicant's car came into collision with a motorcycle. The motorcyclist said it was the fault of the applicant. The applicant was subsequently charged with one count of failing to give way when moving to a marked lane.
The applicant left the scene of the incident without exchanging names and addresses. He was subsequently charged with one count of failing to give his name and address.
Sergeant Rich was given the registration number of the car driven by the applicant. He searched and found the address of the owner. He attended at that address and spoke to the applicant. The applicant admitted that he was involved in the incident, but gave his name as Wasil Azadzoi. Wasil Azadzoi is the applicant's brother.
Sergeant Rich interviewed the applicant at the Narre Warren police station. The applicant repeatedly gave a false name, but finally admitted that he had given a false name. He was charged with one count of giving a false name.
During the interview Sergeant Rich discovered that the applicant's licence had been suspended. The applicant was charged with one count of driving whilst his authorisation to drive was suspended.
At the end of the interview conducted by Sergeant Rich the applicant asked Sergeant Rich to record that his brother was in fact the driver in order to avail himself of insurance cover relevant to any damages claim that might arise out of the incident. Sergeant Rich refused.
The charges were heard in the Magistrates' Court sitting at Dandenong on 14 May 2009. The applicant pleaded guilty to each charge. He was convicted of each charge and fined an aggregate amount of $1200. His licence to drive was suspended for a further period of one month effective from 14 May 2009.
[2]
The action taken by the respondent which led to the cancellation of the licence is as follows:
On 25 June 2009 Sergeant Rich referred the applicant's conduct to the Licensing Services Division for it to investigate his suitability to hold the licence.
On 3 July 2009 notice of a disciplinary inquiry was forwarded to the applicant.
On 21 September 2009 the applicant was sent a notice of the outcome of the disciplinary inquiry. He was notified that the licence had been cancelled pursuant to section 56 of the Act.
The applicant did not appear at the disciplinary inquiry. He effectively sought a review of the outcome of the disciplinary inquiry. He forwarded correspondence to the relevant officer making his case for the decision to cancel the licence to be overturned.
On 10 November 2009 the relevant officer wrote to the applicant informing him that the review of the outcome of the disciplinary inquiry was unsuccessful, and that the licence remained cancelled.
The notice of outcome of the disciplinary inquiry,[4] and the outcome of the review[5] informed the applicant of the basis upon which the licence had been cancelled, and remained cancelled.
[3]
Sergeant Peachey submitted that the application review should be dismissed. He relied upon section 25 (1) (a) and (b) and (2) (a) as the basis for that submission. The relevant section is as follows:
[4]
" 25. Circumstances in which the Chief Commissioner must refuse to grant a private security individual operator licence
[5]
(1) The Chief Commissioner must not grant a private security individual operator licence if-
[6]
(a) he or she is satisfied that the granting of the licence is not in the public interest; or
[7]
(b) he or she is not satisfied that the applicant meets the probity requirements set out in subsection (2)...
[8]
(2) For the purposes of subsection (1)(b) the probity requirements are that the person-
[9]
Essentially Sergeant Peachey submitted that the particular events which point to it not being in the public interest for the applicant to regain the licence, and that he is not a fit and proper person as follows:
he was driving a car when he knew he was not permitted to.
He attempted to evade being identified by leaving the scene of the incident no doubt in the hope that by doing so he would avoid detection and prosecution for driving whilst his licence was under suspension.
He lied to Sergeant Rich about his identity in order to put Sergeant Rich off the scent, and again avoid detection and prosecution for driving whilst his licence was under suspension.
The lie persisted when he attended be police station later in the day, and he was only prepared to admit that he had been lying when Sergeant Rich was armed with information which proved his true identity.
Despite finally being identified as the driver of the car involved in the incident he then wanted Sergeant Rich to conspire with him to tell another lie in order to avail himself of insurance cover.
The applicant did not give evidence. He made a submission from the bar table in which he sought to explain and mitigate his conduct . Essentially he submitted the following:
He had not committed all of the traffic offences which led to him accumulating 12 demerit points which are then resulted in his licence been suspended.
The reason why he left the scene of the incident was because of the aggressive conduct of the motorcyclist.
He apologised for lying to Sergeant Rich about his identity. He said his conduct on the day when the incident occurred was because he was frightened and made an error of judgement.
He needs the licence in order to pursue an occupation and earn a living. His elderly parents and his family unit rely upon the income he can earn for their collective survival.
He was involved in a serious car accident in the United States of America which resulted in him suffering from post traumatic stress disorder/depression. He was suffering from those conditions when he made his application for the licence and when the incident occurred, however, he submitted that he has now recovered from those conditions.
He has done some community work with the Salvation Army and a local Church since the licence was cancelled.
He is a responsible person who understands his wrongdoing.
I will firstly deal with the offences committed by the applicant which arose out of the incident.
I have no doubt that the only motive which the applicant had in mind when he left the scene of the incident was to avoid detection and prosecution for driving whilst his licence was suspended. I do not accept that even if there was aggression on the part of the motorcyclist that it was a reason for him to have left the scene of the incident.
Furthermore, even if there was aggression shown by the motorcyclist the applicant went to his home and remained there rather than going to the nearest police station as he should have done to report the incident in order to avoid it being said that he left the scene of the collision to avoid detection.
The applicant's wrong doing then became very much worse. He not only assumed his brother's identity when first confronted by Sergeant Rich at his home, but the lie persisted at the police station later in the day. Even when the applicant admitted the lie he then invited Sergeant Rich to be a willing conspirator in the potential defrauding of an insurance company.
The applicant's conduct is that of a person whose first resort when faced with an allegation of wrongdoing is to lie to avoid the repercussions of that wrongdoing.
Even at the stage when the relevant officer invited the applicant to explain his conduct and make written submissions to show cause why the cancellation of the licence should not persist he sought to explain that conduct by representing that he had not committed all of the traffic offences relevant to the accumulation of the 12 demerit points; that the motorcyclist was the cause of him leaving the scene of the incident, and that his behaviour in some way could be explained by the fact that he has suffered from post-traumatic stress disorder/depression.
It seems to me that at no stage did the applicant stand up and simply accept responsibility for his conduct. The written submissions he made to the relevant officer, the substance of which were repeated before me, were an attempt to excuse his conduct and to deflect blame away from himself.
What is in the public interest is a test to be determined objectively, and by having regard to considerations which are relevant to the type of licence which is the subject of the enquiry.
A reasonably minded member of the public would consider that the holder of such a licence should firstly be qualified to undertake work of that kind. There is no issue about that here because the applicant submitted an application with all of the material that was required which, when assessed, resulted in him being granted the licence.
However, whether an applicant for such a licence should be granted such a licence or be permitted to retain it must then be determined in accordance with some fairly basic considerations.
The licence granted to the applicant permits him to undertake work as a security guard and as a crowd controller. Both are defined in section 3 of the Act as follows:
[10]
"crowd controller means a person who is employed or retained principally to maintain order at any public place by doing all or any of the following-
[11]
(d) otherwise maintaining order in- any such place, unless that person is doing nothing more than securing or checking that persons allowed admission-
[12]
(f) have invitations or passes allowing for admission...
[13]
security guard means a person who is employed or retained to protect, watch or guard any property by any means including-
[14]
(b) by monitoring the property by operating a security system that
[15]
utilises closed circuit television, a closed monitoring system, radio or other similar alarm device..."
[16]
It is abundantly clear to me that the duties which a security guard and a crowd controller undertake require the holder of such a licence to behave in a manner consistent with the adequate discharge of those responsibilities.
Whilst it is unnecessary to exhaustively define precisely what characteristics are called for it must include at least a basic level of honesty, integrity and trustworthiness.
If those characteristics are absent because the holder of a licence has a history consistent with not being of good character, or after obtaining such a licence evidences conduct consistent with not being of good character then that must inevitably impinge upon whether such a licence should be granted or retained.
The applicant behaved in a manner inconsistent with the responsibilities imposed upon a security guard and a crowd control. His behaviour throughout the incident points to him being prepared to be dishonest by not exchanging names and addresses, fraudulently representing himself to be another person, and then inviting a police officer to conspire with him to potentially defraud an insurance company.
When the conduct of the applicant is measured up against the characteristics expected in a person discharging that responsibilities of a security guard and crowd controller it seems to me that reasonably minded members of the public would not consider it in the public interest to permit him to hold such a licence.
There are undoubtedly occasions when the contravention of the criminal law by an applicant for a licence, or on the part of someone who is the holder of a licence, is not indicative of conduct which will deny such a person from successfully applying for a licence or retaining such a licence.
Whether the contravention of the criminal law is so indicative depends upon the gravity of the contravention of the criminal law.
I think the extent to which the applicant went to avoid detection, and the invitation he made to a police officer to conspire with him to potentially defraud an insurance company are matters of the most serious kind because they go directly to whether the applicant is a person of honesty, integrity and trustworthiness, and ultimately whether he is of good character.
It is for these reasons that I have concluded that the applicant's conduct was of such significance that the relevant officer acted properly in cancelling the applicant's licence.
It is not necessary for me to deal with the second ground relied upon by the respondent that the applicant is not a fit and proper person to retain such a licence. I think the same considerations relevant to the public interest issue apply equally to whether he is a fit and proper person. For the sake of completeness I have concluded that he is not.
[17]
For the foregoing reasons I will order that the decision under review be affirmed.