Bourke v Commissioner of Police

Background 1 Mr Mahe Pese lodged an application with the Administrative Decisions Tribunal (the Tribunal) for the review of a decision dated 31 March 2000 made on behalf of the Commissioner of Police (the Commissioner). The decision refused Mr Mahe Pese's application for a Class One security industry licence made under the Security Industry Act 1997 (NSW) (the Act). The decision was an internal review decision. The original decision to refuse Mr Mahe Pese a licence was made on 24 February 2000. 2 The Tribunal's jurisdiction derives from sections 29 of the Act and 38 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). 3 Some weeks prior to the Tribunal hearing Mr Mahe Pese was provided with a copy of the Tribunal decision Bourke & Ors -v- Commissioner of Police [1998] ADT 1 (the Bourke decision) for his information. The relevant law 4 Section 15 of the Act concerns restrictions and discretions on the granting of licences in certain circumstances. Sections 15(1)(a) and 15(3) read as follows (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, …. … (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. 5 Section 16 of the Act concerns restrictions on granting licences in circumstances involving certain criminal and other related history. Section 16(1)(b) provides (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: …. (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, …. 6 Clause 11(d) of the Regulation reads 11. For the purposes of section 16 (1) (a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (d) An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.….. The evidence 7 Mr Mahe Pese's application for review attached a copy of the internal review decision of the Commissioner affirming the original decision to refuse Mr Mahe Pese a licence. 8 Mr Mahe Pese also provided the following documents to the Tribunal in support of his application: - a copy of his letter in support of his application to the Commissioner for internal review; - a copy of the original 'Notification of Refusal' dated 24 February 2000 and related affidavit of service; - two employer references from Helex Security dated 13 January 2000 and 15 March 2000 respectively and a personal reference from RD Guglielmo; - certificates in security guarding (14 October 1999) and first aid (4 June 1998); and - a copy of a reference from Filimone Olivetti, Minister, Uniting Church in Australia, Shellharbour Congregation. 9 The material provided to the Tribunal on behalf of the Commissioner consisted of: - a Queensland Police Service criminal history of Mr Mahe Pese which lists only the motor vehicle offence; - a copy of a 2 page Warrant Details document relating to Mr Mahe Pese's offence; - a copy of 4 pages of the relevant Queensland Police Service Court Brief; - copies of 4 search print-outs and a letter from Jennifer Dolbel of the NSW Police Service Security Industry Registry dated certifying that a search had been conducted of the Integrated Licensing System data bases and no record had been found of any previous licence having been issued to Mr Mahe Pese; and - a copy of part of Mr Mahe Pese's application for the security industry licence. 10 No witnesses were called at the hearing. 11 Mr Mahe Pese was found guilty of the offence of 'unlawful user of motor vehicle' in the Brisbane Magistrate's Court on 25 August 1997. The offence was a breach of s 408A(1)(a) of the Criminal Code Act 1889 (Qld). No conviction was recorded pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld). Mr Mahe Pese was fined $500. 12 Section 408A(1)(a) reads: (1) A person who - (a) unlawfully uses any motor vehicle, aircraft or vessel without the consent of the person in lawful possession thereof; … is guilty of a crime and is liable to imprisonment for 7 years. (1C) It is a defence to a charge of an offence defined in subsections (1) to (1B) to prove that the accused person had the lawful consent of the owner of the motor vehicle, aircraft or vessel to its use or possession by the accused person. 13 The details of the offence were that Mr Mahe Pese unlawfully used a motor vehicle between the 18th of June 1997 and the 25th of August 1997 without the consent of Remdette Pty Ltd which trades as Car-azy Rentals. 14 According to the Court Brief document Mr Mahe Pese leased the vehicle from 10th May 1997 to 28th May 1997 under a written contract and entered into a verbal agreement which allowed him to extend the lease period subject to weekly payments being made. There were instructions in the written agreement that stated that failure to contact the company at the end of the contracted lease period could render use of the vehicle unlawful. Mr Mahe Pese defaulted on the payments and the company reported to the Police on 18th July 1997 that Mr Mahe Pese had unlawfully retained the vehicle. In the early hours of 25th August 1997 the Police apprehended Mr Mahe Pese driving the vehicle. 15 Before making the application for this licence in January 2000, Mr Mahe Pese's application stated he had previously held a security industry licence which had since expired. He had provided the licence number: 407765812 and the expiry date: 17th October 1999. 16 On the licence application form under the 'Personal History' category at Item 3.3, Mr Mahe Pese answered 'no' to the question 'Have you been found guilty of an offence…where the Court has decided to record no conviction within the last five years in New South Wales or elsewhere?'. 17 In his letter of 15 March 2000 seeking internal review Mr Mahe Pese referred to his need for employment to support his family and that a job was waiting for him upon his obtaining a licence. He stated he had worked as a security officer for more than seven years and had no prior convictions. He expressed regret for the vehicle incident and that he had had no intention of acting unlawfully. 18 The Commissioner submitted that the Tribunal is required by s 16(1)(b) of the Act to refuse to grant the applicant a licence if satisfied the applicant has been found guilty of a prescribed offence within the 5 years before the licence application was made. Prescribed offences are detailed in the Regulation cl 11, the relevant sub-clause for present purposes being 11(d) - the applicant was found guilty of the offence and was fined a sum greater than $200. Accordingly, the Commissioner submitted, the Commissioner had no discretion under s. 16(1)(b) and neither does the Tribunal, and so the application must therefore be refused. 19 Both the Commissioner's original and internal review decisions were based on s. 15(1)(a), s. 15(3), s.16(1)(b) and cl 11 (d). The Amended Statement of Reasons document was prepared in relation to the initial decision. In his submissions and at the hearing, Mr Tunks for the Commissioner either directly or indirectly relied on the same provisions. 20 Mr Tunks submitted that Mr Mahe Pese's offence under s 408 appears in chapter 37 of the Queensland Criminal Code under the heading 'Offences Analogous to Stealing' and that accordingly this prima facie characterisation of the offence puts Mr Mahe Pese in the position of having committed an offence involving dishonesty. 21 Mr Tunks referred to the Tribunal's decisions in Bourke, Doyle and Ward in relation to interpreting how it should approach the application of a mandatory provision such as s 16. [Bourke v Commissioner of Police [1998] NSWADT , Doyle v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 1, Ward -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 28] 22 Mr Tunks also referred to the decisions of R v Sinclair (1995) Qld CR 559 and R v Bonollo [1981] VR 633. 23 Mr Chahoud for Mr Mahe Pese acknowledged the Tribunal's decision in Bourke and that the issue was whether or not the offence Mr Mahe Pese was found guilty of falls within cl 11 of the Regulation and s 16 of the Act. Mr Chahoud acknowledged that if it did he would have to agree the Commissioner's decision to refuse the licence was correct. 24 Mr Chahoud acknowledged the mandatory nature of s 16 and that it could operate in Mr Mahe Pese's circumstances to exclude any other considerations from the decision-making equation. 25 Mr Chahoud submitted that Mr Mahe Pese's offence was not a 'fraudulent offence' and that the issue was whether it was one involving dishonesty or stealing. Mr Chahoud submitted it was appropriate to 'go behind the offence' and look at how the vehicle came into Mr Mahe Pese's possession and that it may be considered not to fall within s 16. Mr Chahoud sought to distinguish Mr Mahe Pese's offence as not involving dishonesty because Mr Mahe Pese had obtained the car honestly and lawfully. 26 Mr Chahoud raised a question as to Parliament's power to cover offences committed in jurisdictions outside New South Wales as referred to in cl 11 suggesting he might address the question in written submissions if such were allowed. 27 Although a post-hearing timetable was set at Mr Chahoud's request for the possible provision of further submissions after allowing for some follow-up research, no further submissions were provided by either party to the Tribunal. Findings and Reasoning 28 No findings are made in relation to whether Mr Mahe Pese did or did not hold a security industry licence prior to the present application. The evidence provided by the parties on this issue was insufficient and inconclusive. 29 There is a suggestion in Mr Mahe Pese's application form that he may have incorrectly completed the application form at item 3.3. This does not appear to have been relied upon or explored in the processing of Mr Mahe Pese's application. No finding is made in this regard. I note however that the Tribunal has previously decided in similar circumstances involving the provision by an applicant of incorrect information that it may provide a basis to revoke a licence using the discretion available under s 26(1) of the Act. See Price -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 127. 30 The view of the Tribunal has consistently been that where a mandatory decision is being reviewed and made, the Tribunal's role does not include exploring beyond whether there was in fact a conviction or guilty finding for an offence that could fall within s 16 to consider whether the facts of the particular matter involve any fraud, dishonesty or stealing. See Bourke v Commissioner of Police [1998] NSWADT , and Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17. The correct inquiry is whether the offence fits within the description of a prescribed offence under the Regulation. 31 The Tribunal's Appeal Panel has confirmed that 'dishonesty, fraud or stealing need not be an element of the offence in order for an offence to belong to the cl 11(d) category. See Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17. 32 Does the offence involve dishonesty, fraud or stealing? The Commissioner's submission was that it involves dishonesty. Mr Chahoud's submission was that if the circumstances of the offence can be considered it could be seen that Mr Mahe Pese's offending did not involve dishonesty. 33 I am not persuaded by the submission that because the chapter heading relating to the offence suggests the offence is 'analogous to stealing' that it follows without anything further that the offence involves dishonesty, fraud or stealing. 34 Mr Tunks referred to Fitzgerald P's decision in Sinclair in support of the submission that the offence involved dishonesty. In his decision, concerning an appeal against sentences, Fitzgerald P stated that many of Sinclair's offences 'involve dishonesty, including breaking and entering, stealing, receiving and, on 28 occasions, unlawful use'. The incidences of unlawful use of a motor vehicle each involved the taking of cars parked in the street. There are other Queensland Court of Appeal decisions which make similar statements about the offence as one, usually of several offences, 'involving dishonesty'. Each 'unlawful use of motor vehicle' offence referred to involved the theft or taking of the vehicle. See R v Cutter [2000] QCA 52 (3 March 2000) [at par 12] and R v Maclean and Bannerman [2000] QCA 367 (12 September 2000) [at par 10]. Without more, I am not prepared to rely solely on such very general references as authority for the view that the offence involves dishonesty. 35 The Act provides definitions of stealing and fraud at s 391 and s 408C respectively. The definition for stealing involves the fraudulent taking of something and 'fraudulently' is defined for the purposes of the section. The definition of fraud includes A person who dishonestly- (a) applies to his or her own use or to the use of any person- property belonging to another;... 36 'Honesty' is defined in its 'prevailing modern sense' in the Shorter Oxford English Dictionary on Historical Principles [Clarendon Press, Oxford 3rd edition, 1973] as "uprightness of disposition and conduct'; straightforwardness; the quality opposed to lying, cheating or stealing". 'Honestly' is defined as 'in a respectful manner; decently; with upright conduct; especially without fraud or falsehood; sincerely, fairly, frankly'. 37 'Dishonest' is defined as, re actions: not straightforward or honourable, underhand; and re persons: wanting in honesty; disposed to cheat or defraud'. 'Dishonesty' is defined as 'lack of probity; disposition to deceive, defraud or steal'. 38 In Doyle the Tribunal Appeal Panel decided that the Tribunal President had made no error of law in the reasoning of the decision at first instance. Amongst his reasons the President had decided that: A reasonable approach should be adopted to determining whether a specific offence can properly be described as one involving " fraud, dishonesty or stealing". …. Whether the intent is actual or founded on reckless disregard for consequences, it is reasonable, I consider, to describe the conduct involved as "dishonest". 39 In the Tribunal decision of Joyce the Deputy President considered the meaning of dishonesty and stated that: 'Dishonesty' is defined in the Concise Oxford Dictionary( 7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." ….. …… The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act. 40 The offence itself requires the offender to act "without consent" of the person who has lawful possession of the relevant vehicle. Liability can be avoided if the lawful owner has given consent for the use or possession of the vehicle. Is it the case that to do the act, to use or possess the car without consent is to act dishonestly? 41 Considering the definitions and the assistance provided by the Tribunal decisions quoted above, my conclusion is that committing the offence of unlawful use of a motor vehicle does involve dishonesty. 42 In my view, in circumstances where consent for certain action is required or could reasonably be expected to be required, and that consent is sought and is refused, the action involves dishonesty if it is proceeded with. In the same circumstances, yet where consent is not sought, the action involves dishonesty if it is proceeded with. 43 As the offence involves dishonesty, it is an offence of a kind which fits within the parameters of Regulation cl 11 and s 16 of the Act. 44 Accordingly, the legislation does not allow for the exercise of any discretion and I am required to refuse Mr Mahe Pese a security industry licence. 45 Although submissions were made relying on other provisions of the Act to refuse Mr Mahe Pese a licence, given the decision already reached, it is not necessary to make any further findings in the matter. Decision (1) In accordance with s 63 (3)(a) of the Tribunal Act, the decision of the Commissioner of Police to refuse Mr Mahe Pese's application for a security industry licence is affirmed.

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