Clarke v Commissioner of Police, NSW Police Force

NCAT Occupational|2022-08-02

The Applicant's service with the NSWPF

The Applicant was a police officer from 29 January 1989 until 26 January (or 9 February) 2017, when he was medically retired. He achieved the rank of Detective Sergeant Year 6.
According to his service history, he was attached to General Duties, then 5 years in Highway Patrol, and then other duties including some years in Criminal Investigation.
The Applicant provided a copy of commendations he had received. He was the recipient of four Region Citations (for outstanding police work), eight complimentary remarks and two acknowledgements of good policing. He was also awarded the Police Service Medal Including 1st and 2nd clasps and the National Medal for Police Service. The Applicant also provided a copy of a letter from the former Commissioner dated 3 January 2017 approving his medical retirement and thanking him for his service and expressing regret that his condition precluded him from pursuing his chosen career.

The Applicant's mental health

On 14 July 2015, that is, shortly after the Applicant came to attention of RBT Police, an incident notification form was lodged by the Applicant's supervisor, notifying the NSWPF of a workplace "incident" involving the Applicant, for which he was said to be receiving treatment. The Applicant said in his evidence that for 28 years in the NSWPF he had "seen and done too much". He said he "was in a bad way" and drank too much.
On 14 August 2015, the Applicant was certified by Associate Professor Stephen Woods (Associate Professor Woods), Forensic Psychologist, as suffering from complex PTSD with comorbid, chronic underlying persistent depressive disorder, and as a symptom of the PTSD, an Alcohol Use Disorder. On 20 October 2015, Dr Antony Henderson, Consultant Psychiatrist, diagnosed the Applicant as suffering from a severe depressive disorder complicated by post-traumatic symptoms, concluding he required six months' leave from work. At the time the Applicant reported that he was drinking 10-15 standard drinks on most days.
On 21 October 2015, Associate Professor Woods certified that the Applicant was suffering from clinically severe symptoms of PTSD with comorbid major depressive disorder, was at risk of self-harm, and was unfit for duty until at least February 2016. On 25 July 2016, the Applicant was admitted as an in-patient at St John of God Hospital where he remained until 5 September 2016. On 15 August 2016, Associate Professor Woods expressed the view that the Applicant was suffering from complex PTSD with comorbid underlying dysthymia (persistent depressive disorder) and an alcohol use disorder. He certified that it was not appropriate or possible for the Applicant to return to policing, and that he was only capable of performing basic tasks.
On 26 September 2016, Rachael Kiely (Ms Kiely), a psychologist with St John of God Hospital, stated that the Applicant's scores on a PTSD checklist were "significantly above the threshold for clinically diagnosable PTSD". Ms Kiely indicated the Applicant also appeared to be under-reporting his experiences, utilising emotional avoidance as a way of coping with distress. Ms Kiely suggested the Applicant may benefit from intensive PTSD treatment.
On 2 October 2016, Dr John Lam-Po-Tang, Consultant Psychiatrist, prepared, at the request of the NSWPF's insurer, a detailed report, concluding that the Applicant was suffering from PTSD and alcohol use disorder. Various treatments were recommended but Dr Lam-Po-Tang concluded that, irrespective, the Applicant was not capable of working in either an operational or non-operational role, as this would cause his symptoms to "worsen significantly". The Applicant reportedly told Dr Lam-Po-Tang that he dated the onset of symptoms to a distressing case involving the alleged murder of a child which the Applicant had attended in 2005. When the case was later heard, it did not result in a conviction, and the Applicant turned to excessive alcohol consumption. He told Dr Lam-Po-Tang that for about six months he would drive to the victim's home and sit in the car for about four hours at a time, watching the house, and later, engaged in complete avoidance of the general area. He reportedly told Dr Lam-Po-Tang that for the next 10 years he tried to protect more junior officers and did not allocate matters involving children to them. He self-medicated with alcohol, drinking very heavily once or twice a month.
At the time of Dr Lam-Po-Tang's report, the Applicant was seeing both his GP and his then treating psychiatrist, Dr Malik of St John of God weekly, and Associate Professor Woods every 3-4 weeks. He told Dr Lam-Po-Tang that, before his referral to Associate Professor Woods, he had not previous sought any professional help, even from the NSWPF Employee Assistance Programme or a NSWPF chaplain.
On 28 October 2016, the Applicant's GP, Dr Alice Choi, concurred with Dr Lam-Po-Tang's diagnoses of PTSD and alcohol use disorder, and agreed that it was unlikely that the Applicant could return to work as a police officer given the "severity and persistence of his symptoms".
The Applicant was medically retired from the NSWPF in either late January or early February 2017.
After he left the NSWPF, the Applicant said he attended another programme at St John of God conducted by Ms Keily, at the suggestion of Dr Lam-Po-Tang. No further information was provided in relation to that programme, which was presumably in 2017.
As to his current condition, the Applicant said in his evidence that for 4-4½ years he has been on no medication whatever. He made a decision to change his life; he has "seen the light"; and now "life is good". Whereas previously he could not cope when family members were wearing their police uniform, now he encourages them to talk about their work activities.
The matter was listed for hearing on 2 August 2022. At that time, because the Respondent had raised the Applicant's mental health in its submissions, I expressed concern that the Applicant had provided no medical evidence as to his present condition. In fact, there was no medical evidence other than that which led up to the Applicant's medical retirement from the NSWPF in early 2017. The Applicant said he had tried to get a psychologist's report but there was a long waiting list, and "nobody" was interested in taking him on for the sole purpose of an assessment with no prospect of ongoing treatment, because, in his view, no further treatment was required. The Respondent referred to Commissioner of Police, NSW Police Force v Robinson [2022] NSWCATAP 121 at [46] where the Appeal Panel observed that the Tribunal does not have power to direct a person to attend a medical appointment. Nonetheless, I told the Applicant that I considered I would benefit from such a report and was prepared to adjourn the hearing so that he could make further endeavours to provide a report. An update from his previous doctors might have been considered. When none was provided in anticipation of the resumed hearing, I again invited the Applicant to provide any report, suggesting, to the effect, that even something from his GP may assist. Nothing was forthcoming.

Is the Applicant a fit and proper person to hold a private investigator's licence?

Section 15(1)(a) of the SI Act requires that the Tribunal be satisfied that the Applicant is a fit and proper person to hold a private investigator's licence.
The question whether a person is fit and proper is one of value judgment: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 ("Bond") (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: Bond at 380 (Toohey and Gaudron JJ); see also Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] HCA 28; Re Percival and Australian Securities Commission (1993) 30 ALD 280; Re Brennand & Casino Surveillance Authority (1995) 38 ALD 794 at [41].
In Sobey v Commercial & Private 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" (see also Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [58]).
In Nakad v Commissioner of Police NSW Police Force [2013] NSWADT 169, I said at [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].
In Naylor v Commissioner of Police, NSW Police Force [2014] NSWCATOD 43, Molony SM referred, at [80] to the Second Reading Speech accompanying the introduction of the Act: " … on the introduction of the SIA, Mr Gaudry, Parliamentary Secretary, in the NSW Legislative Assembly on 12 November 2002 said at page 6544 of Hansard: 'The intention of the Security Industry Act is to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. For this reason, persons convicted of specified offences are barred from working in security. …'"
"Specified offences" that would bar the Applicant from working in the security industry include unlawful possession of a firearm, drug offences, serious assault, and fraud: Security Industry Regulation 2016 (NSW), cl 15. It should be noted that the Applicant's convictions do not fall within any of the specified offences. Further, there was no dispute that the Applicant has no criminal history at all, nor driving offences, other than the 2015 offences.
It was clear though, that, in 2015, in plain disregard for the law in relation to driving with a prescribed content of alcohol, the Applicant consumed enough alcohol to return a high-range reading and that the Applicant neglected his responsibility to maintain his driver's licence. Putting aside his explanation for the years from 2007 onwards, it remained that for a number of years he did not hold a licence at all. The Applicant admitted the offences immediately when he was charged, and he professed to have remorse for having committed the offences. It appears that the event precipitated his coming under the care of medical professionals and commenced receiving treatment for his long-standing but undiagnosed PTSD.
The Applicant pointed out that, on 10 February 2023 he was granted a commercial agent licence by NSW Fair Trading. I observe that a person may only hold a commercial agent licence if that person is a fit and proper person to hold the licence: FT Act, s 60D. A licence may be granted for a nominated term, and, may be granted for a shorter term if it is in the public interest to do so: FT Act, s 60E(2A). I discussed with the Respondent's counsel the apparent anomaly that the Applicant was considered by one NSW Government agency, Fair Trading, to be a fit and proper person for the purposes of a commercial agent licence but, was considered by Police not to be a fit and proper person to hold a private investigator licence. It was submitted that the roles are vastly different: s 60 of the FT Act identifies the activities of a commercial agent, namely debt collection, process serving and repossession of goods, as compared to investigating a person's business or personal affairs and/or undertaking surveillance set out in s 4 of the SI Act. The Respondent's counsel pointed to the refusal by Police of the Applicant's operator licence, that is, including his commercial agent licence application prior to the repeal of the CAPI Act. Notwithstanding that the Respondent now has no jurisdiction in relation to commercial agent licences, it remains the Respondent's position that the Applicant is not a fit and proper person for that role either.
I accept that the roles of commercial agent and private investigator are different and that the role of a private investigator may require a higher standard of fitness and propriety than that of a commercial agent because of the possible intrusive activities that may be undertaken by a private investigator. Both, though, require a sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public as a person to be entrusted with the sort of work which the licence entails.
Given the Applicant's record as a police officer and the commendations he received, I accept he was a skilled and dedicated officer. In relation to the two Certificates of Service, the Applicant said that such certificates are never issued if there have been disciplinary proceedings, and that the fact that two had been issued was "unheard of". I did not understand the Respondent to take issue with the Applicant's contentions in this regard. Similarly, the letter from the former Commissioner made it clear the Applicant would have been retained in the NSWPF but for his medical condition. It is against this otherwise commendable background of many years that the offences of 2015 are of less weight than the Respondent would suggest.
As to the references provided by the Applicant, the Respondent was critical of the references as being from friends and former colleagues. All wrote of the Applicant's integrity, his strong family relationships and his dedication both to the NSWPF and the community. It was submitted by the Respondent that none, except those by Messrs Tingay and McWhirter referred to the Applicant's offences or his medical condition, and should therefore be afforded little weight. I disagree, because those referees who knew the Applicant through his role as a police officer were, in my view, very likely to have known, if not the details of the Applicant's offences, at least would have known that he had left the NSWPF, having been medically retired.
Notwithstanding the 2015 offences, I consider the Applicant has sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public as a person who can be entrusted with the sort of work a private investigator undertakes. For these reasons, I am comfortably satisfied that the Applicant is a fit and proper person and can be trusted to hold a private investigator's licence.

Public interest

Having found the Applicant to be a fit and proper person to hold a private investigator's licence, it remains to be considered whether it is in the public interest him to do so: SI Act, s 15(3).
The expression "public interest" is not defined in s 15, nor elsewhere in the SI Act. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], 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. 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].
In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at [33], the Appeal Panel held: "The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system."
'Public interest' embraces the high standards expected of security licence holders. In McMicking v Commissioner of Police, NSW Police Force [2014] NSWCATOD 95, Scahill SM discussed, at [113], the concept of the 'public interest' in the context of revocation of a security licence: "In Ibrahim v Commission of Police, NSW Police Force [2009] NSWADT 245 at 47, Judicial Member 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.'"
I was also referred to Reilly v Commissioner of Police, New South Wales Police Force [2017] NSWCATOD 129 where, at [111], Professor Walker SM said: "Also relevant to the public interest is the fact that occupational regulatory schemes such as the CAPI Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members: Health Care Complaints Commission v Do [2014] NSWCA 307, [34]-[39]; Kirbach v Health Care Complaints Commission (No.2) [2015] NSWCATAD 234. The tribunal should place itself in the position of a member of the public knowing of the applicant's associations or record, and consider whether that person would object to having the applicant perform the relevant services: Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, [55]."
The most concerning feature of this broader consideration, placing myself in the position of a member of the public, is in relation to the Applicant's current mental health. I accept that the Applicant suffered undiagnosed PTSD and other psychiatric conditions for some years prior to the events which gave rise to his convictions. I accept that the conditions were debilitating and that the Applicant underwent intensive treatment between 2015 and 2017 - including in-patient treatment, medication and counselling. The conditions led to his medical retirement from the NSWPF. Clearly, his condition at that time would have meant it would not have been in the public interest that he operate as a private investigator.
The Applicant said the role of a private investigator is "not even remotely similar" to that of a police officer - for example, as a private investigator one would not see bodies or have to deliver death messages. His claim, it seems, is that, as he is now mentally well, the work as a private investigator would be unlikely to trigger a relapse. While I accept the likely point of differentiation between the roles as he described, the function of private investigator is a responsible one, and one which may involve difficult circumstances.
The Applicant said that since leaving the NSWPF he had undertaken some manual labouring roles and his wife had become the primary breadwinner; they have struggled financially. He also said he needs to feel that he is contributing in some way to society and the role of private investigator would enhance his feelings of self-worth. The Applicant said that he seeks a private investigator licence because he feels he is now able to undertake some work which utilises his police skills. Many of his referees wrote of his skill as an investigator, and I observe that for many years that was the focus of Applicant's role with the NSWPF, and I accept he was dedicated, tenacious, conscientious, and thorough. The Applicant has already had offers of undertaking such work overseas. While he may not need a licence for that role, it suggests he already has a source of work.
Private interests, such as wishing to undertake work to utilise existing skills, financial reward and the ensuing likely increase in self-esteem, however, are not the only matters taken into account; the interests of the whole community are matters for consideration: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681.
I was referred to Monjed v Commissioner of Police, NSW Police Force [2019] NSWCATOD 197, where Montgomery SM discussed at [38] that the mere passage of time did not demonstrate a change had occurred, and that contentions of change needed to be supported by evidence: see also Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461; Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630; [1997] NSWCA 264.
The Applicant wrote in his statutory declaration that his rehabilitation had taken him seven years, including for five years after he left the NSWPF. The Applicant contends that his life has changed, and that he requires no treatment and is not medicated at all. He wrote that his medical practitioners believe that engaging in some work will ensure that his positive recovery remains stable and will improve exponentially. While this may be the case, there was no current medical evidence to that effect, nor even that his medical condition has improved as he claimed. That leads me to concerns that he may be overstating his recovery in the interests of returning to meaningful work. In the absence of such medical evidence, I am unable to be confident that he has made the complete recovery he claims. I therefore find that it would be contrary to the public interest for a licence to be issued to the Applicant at this time.

Conclusion

My conclusion is therefore that while the Applicant is a fit and proper person to hold a private investigator's licence, it would be contrary to the public interest for him to hold a licence at this time. This does not, of course, preclude him from making another application. In my view, it would be appropriate for this decision to be taken into account in the determination of any future application by the Applicant, but that is entirely a matter for the Respondent.

Decision

The decision to refuse to grant the Applicant's application for a private investigator's licence is affirmed. 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: 29 March 2023

Commercial Agents and Private Inquiry Agents Act 2004(NSW)

Security Industry Amendment (Private Investigators) Act 2016(NSW)

Tribunal's approach

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) 235 CLR 286; [2008] HCA 31. Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (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) 1 FCR 353 at 357; [1984] FCA 59. 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, NSW Police Force [2014] NSWCATAP 10 at [28]-[34].

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (7 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (22)