Commissioner of Police, NSW Police Force v White

NCAT Appeal Panel|2024-11-15

Force (Appellant) Scott John White (Respondent) Representation: Counsel: Ms N Wootton (Appellant)

Solicitors: Respondent (self-represented) File Number(s): 2024/00377138 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2024] NSWCATOD 146 Date of Decision: 13 September 2024 Before: P H Molony, Senior Member File Number(s): 2024/00225761

Relevant legislation

The Long Title of the SI Act is as follows: An Act to provide for the licensing and regulation of persons in the security industry; to repeal the Security (Protection) Industry Act 1985; and for related purposes.
The purpose of the act was discussed in Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114 (Feuerstein) at [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 standard. The legislation was enacted to exclude from the industry persons convicted of prescribed offences."
It is an offence to carry on a security activity unless the person is the holder of a licence that authorises the holder to carry on the security activity: s 7(2) of the SI Act. The maximum penalty is 500 penalty units or imprisonment for 2 years, or both.
Relevantly, a Class 1E licence authorises the licensee to patrol, protect or guard any property while carrying on monitoring centre operations: s 11(e) of the SI Act.
Division 3 the SI Act identifies the circumstances under which a licence must be refused (or in some cases may be refused, as is the case in s 15(4) regarding the public interest).
Section 16 concerns refusals in the case of criminal and other related history. Section 16 of the SI Act relevantly states: 16 Restrictions on granting licence - criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant - (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law…
Clause 15 of the SI Regulation provides: 15 Offences and civil penalties that disqualify applicants (1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales - … (d) Offences involving fraud, dishonesty or stealing 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.
Other offences enumerated in cl 15 of the RI Regulations include offences involving or relating to: (a) firearms or weapons; (b) prohibited drugs; (c) assault; (e) robbery; (f) industrial relations matters (but only in the case of an application for a master licence); (g) riot; (h) affray; (i) stalking or intimidation; (j) reckless conduct causing death at a workplace; (k) terrorism; and (l) organised criminal groups.
Section 703 of the Criminal Code Act 2002 (ACT) relevantly provides: 703 Perjury (1) A person commits an offence (perjury) if - (a) the person makes a sworn statement in a legal proceeding; and (b) the statement is false; and (c) the person is reckless about whether the statement is false. Maximum penalty: 700 penalty units, imprisonment for 7 years or both. …
Section 20 of the Code relevantly provides: (2) A person is reckless in relation to a circumstance if - (a) the person is aware of a substantial risk that the circumstance exists or will exist; and (b) having regard to the circumstances known to the person, it is unjustifiable to take the risk. (3) The question whether taking a risk is unjustifiable is a question of fact. (4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness satisfies the fault element.
Section 700 of the Code provides the following definition of a sworn statement: "sworn statement" means a statement made or verified on oath. Note Oath includes affirmation (see Legislation Act, dict, pt 1).
Section 7 of the Oaths and Affirmations Act 1984 (ACT) provides as follows: Oath or affirmation by witness (1) An oath to be taken by a person called as a witness in a proceeding shall, where no other form of oath is prescribed by or under the relevant law, be in accordance with the form of oath specified in schedule 2. (2) Where a person called as a witness in a proceeding is entitled or required to make an affirmation instead of taking an oath, and the form of affirmation is not prescribed by or under the relevant law, the affirmation shall be in accordance with the form of affirmation specified in schedule 2.
Schedule 2 provides as follows: Oath and affirmation by witness (see s 7) Oath I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person's religion) that the evidence I give will be the truth, the whole truth, and nothing but the truth. Affirmation I solemnly and sincerely declare and affirm that the evidence I give will be the truth, the whole truth, and nothing but the truth.
Section 5 of the Oaths and Affirmations Act provides as follows: Oath or affirmation by deponent to affidavit (1) An oath to be taken by a deponent to an affidavit for use in a proceeding shall be in accordance with the form of oath specified in schedule 5. (2) Where a deponent to an affidavit for use in a proceeding is entitled or required to make an affirmation instead of taking an oath, the affirmation shall be in accordance with the form of affirmation specified in schedule 5.
Schedule 5 provides: Oath and affirmation by deponent to affidavit (see s 10) Oath I swear (or the person taking the oath may promise) by Almighty God (or the person may name a god recognised by the person's religion) that the signature to this affidavit is my signature and that every statement in the affidavit is true. Affirmation I solemnly and sincerely declare and affirm that the signature to this affidavit is my signature and that every statement in the affidavit is true.
Relevant to the Decision at first instance was s 702(1) of the Criminal Code: Aggravated perjury (1) A person commits an offence (aggravated perjury) if - (a) the person makes a sworn statement in a legal proceeding with the intention of procuring the person's or someone else's conviction for, or acquittal of, an offence (the relevant offence); and (b) the relevant offence is punishable by imprisonment; and (c) the statement is false; and (d) the person is reckless about whether the statement is false. Maximum penalty: 1400 penalty units, imprisonment for 14 years or both.

Question of law and leave to appeal

Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) provides that a party to an internal appeal in respect of a final decision, may appeal as of right "on any question of law". The party may also seek leave to appeal on any other grounds.
There are several important cases relevant to the construction of s 80 of the NCAT Act. These were recently referred to in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25].
The Appeal Panel there said, inter alia, that: (1) Absent leave to appeal, the question of law is the subject matter of the appeal: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Medical Council of New South Wales v Mooney [2024] NSWCA 180 (Mooney) at [97]. (2) The question of law should be articulated with precision: Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [22], Kudrynski v Orange City Council [2024] NSWCA 33 at [48], Mooney at [97], Wollondilly Shire Council v Styles [2024] NSWCATAP 104 at [28]. (3) A question of law means a pure question of law: Wilson v Chan & Naylor Parramatta Ltd atf Chan & Naylor Paramatta Trust [2020] NSWCA 62 at [4] and [11]. (4) A "pure question of law" does not depend on facts not found: Orr v Cobar Management Pty Ltd [2020] NSWCCA 2020 at [48] and [109]. (5) A mixed question of fact and law is not a question of law: Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWCA 734 at [39]. (6) An appeal is "on" any question of law: s 80(2) of the NCAT Act. The question of law must not be hypothetical or arid: Liu v Director of Public Prosecutions (NSW) [2024] NSWSC 382 at [90]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 353-354; [1990] HCA 33. (7) An appeal is against orders and not reasons: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 at [34], Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2023] NSWCA 291 at [217], Kramer v Stone [2023] NSWCA 270 at [259]. Therefore, the question of law must be capable of affecting the orders the subject of the appeal.
Recently in Donohoe v Albulario [2025] NSWSC 9, Basten AJ identified that when a question of law arises as to whether proceedings were procedurally fair it may be appropriate and necessary, on appeal, to make findings about what occurred at the hearing. His Honour noted at [33] (footnotes omitted): "To the extent that there is a fact/law dichotomy, the facts which are not to be reviewed by the appeal court dealing with a question of law are the facts relevant to the matter in dispute. There is a categorical distinction between the facts in dispute (what part of the building was completed?) and facts relating to the composition or conduct of the Tribunal."
The appellant's ground of appeal is as follows: "The Tribunal erred in holding that the Appeal Respondent's conviction for the offence of 'Perjury' under s.703(1) of the Criminal Code Act 2002 (ACT) was not an offence 'involving fraud, dishonesty or stealing' for the purposes of s.16(1)(a) Security Industry Act 1997 (NSW) and cl.15(1)(d) Security Industry Regulation 2016 (NSW)."
Leave to appeal was not sought.
The Appeal Panel is satisfied that the ground of appeal raises the question of whether the Tribunal misconstrued the Code and effectively asked itself the wrong question. This is a question of law: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]-[74]; Craig v South Australia (1995) 184 CLR 163 at pp 177-78; [1995] HCA 58 at [12].

The Decision at First Instance

At first instance, the Tribunal noted (at [50]): Dishonesty or fraud is not a stated element of the offence of perjury under s 703(1) of the ACT Code. There is no requirement that the accused know the statement is false, or that the accused have an intention of procuring a desired outcome in the proceedings by making a false statement. Both would demonstrate dishonesty if proved, as well as satisfying the element of recklessness under the ACT Code. Recklessness, as defined in s 20 of the ACT Code, envisages situations where a prosecution for perjury may be demonstrated by proof of knowledge and intention involving dishonesty: but it also envisages situations in which the offence is committed recklessly, without knowledge or intent. I do not accept that a conviction for such an offence necessarily involves dishonesty as submitted by the Commissioner. It may do so, but that is not necessarily the case.
The Tribunal contrasted this section with that of aggravated perjury, under s 702(1) of the Code. Aggravated perjury requires an intention to procure a desired outcome in the proceedings, which the Tribunal considered marked it as dishonest (at [54]).

Relevant authorities

Before addressing the submissions, it is convenient to examine the seminal cases that the appellant relied on, along with some of the material relied upon by the respondent.

Derry v Peek

In Derry v Peek (1889) 14 App Cas 337 the defendant company released a prospectus which stated that the company was permitted to use trams that were powered by steam, rather than by horses. However, they did not possess such a right. Consent was required from the Board of Trade. The issue on appeal before the House of Lords, for the purpose of deciding whether the action for deceit was made out against the defendants, was whether the statement made by the defendants was a fraudulent misrepresentation.
The House of Lords found that although the statement was untrue, it was not proven that the defendants were dishonest in their belief. Fraudulent misrepresentation was said to be made out by a statement known to be false, or a statement made recklessly or carelessly as to the truth of the statement. It is not made out simply because a statement, honestly held, is nevertheless made without a reasonable basis for the belief. The House of Lords provided the following reasoning:
Lord Bramwell said at 350 (emphasis added): "Cotton L.J. says the law is 'that where a man makes a statement to be acted on by others which is false, and which is known by him to be false, or is made by him recklessly, or without care whether it is true or false, that is without any reasonable ground for believing it to be true,' he is liable to an action for deceit. Well, I agree to all before the 'that is' and I agree to what comes after if it is taken as equivalent to what goes before, viz., 'recklessly or without care whether it is true or false,' understanding 'recklessly' as explained by 'without care whether it is true or false.' For a man who makes a statement without care and regard for its truth or falsity commits a fraud. He is a rogue. For every man who makes a statement says 'the truth is so and so, and I know it or believe it.' I say I agree to this as I understand it."
Lord Herschell said at 360-1 (emphasis added): "In the Court below Cotton L.J. said: 'What in my opinion is a correct statement of the law is this, that where a man makes a statement to be acted upon by others which is false, and which is known by him to be false, or is made by him recklessly, or without care whether it is true or false, that is, without any reasonable ground for believing it to be true, he is liable in an action of deceit at the suit of anyone to whom it was addressed or anyone of the class to whom it was addressed and who was materially induced by the misstatement to do an act to his prejudice.' About much that is here stated there cannot, I think, be two opinions. But when the learned Lord Justice speaks of a statement made recklessly or without care whether it is true or false, that is without any reasonable ground for believing it to be true, I find myself, with all respect, unable to agree that these are convertible expressions. To make a statement careless whether it be true or false, and therefore without any real belief in its truth, appears to me to be an essentially different thing from making, through want of care, a false statement, which is nevertheless honestly believed to be true. And it is surely conceivable that a man may believe that what he states is the fact, though he has been so wanting in care that the Court may think that there were no sufficient grounds to warrant his belief."
His Lordship said at 374 (emphasis added): I think the authorities establish the following propositions: First, in order to sustain an action of deceit, there must be proof of fraud, and nothing short of that will suffice. Secondly, fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think, always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief. Thirdly, if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made."
The evidence of the individual directors was considered by Lord Herschell at 378 as follows: "I turn now to the evidence of the defendants. I will take first that of Mr. Wilde, whose conduct in relation to the promotion of the company is free from suspicion. He is a member of the Bar and a director of one of the London tramway companies. He states that he was aware that the consent of the Board of Trade was necessary, but that he thought that such consent had been practically given, inasmuch as, pursuant to the Standing Orders, the plans had been laid before the Board of Trade with the statement that it was intended to use mechanical as well as horsepower, and no objection having been raised by the Board of Trade, and the Bill obtained, he took it for granted that no objection would be raised afterwards, provided the works were properly carried out. He considered, therefore, that, practically and substantially they had the right to use steam, and that the statement was perfectly true. Mr. Pethick's evidence is to much the same effect. He thought the Board of Trade had no more right to refuse their consent than they would in the case of a railway; that they might have required additions or alterations, but that on any reasonable requirements being complied with they could not refuse their consent. It never entered his thoughts that after the Board had passed their plans, with the knowledge that it was proposed to use steam, they would refuse their consent. Mr. Moore states that he was under the impression that the passage in the prospectus represented the effect of sect. 35 of the Act, inasmuch as he understood that the consent was obtained. He so understood from the statements made at the board by the solicitors to the company, to the general effect that everything was in order for the use of steam, that the Act had been obtained subject to the usual restrictions, and that they were starting as a tramway company, with full power to use steam as other companies were doing. Mr. Wakefield, according to his evidence, believed that the statement in the prospectus was fair; he never had a doubt about it. It never occurred to him to say anything about the consent of the Board of Trade, because as they had got the Act of Parliament for steam he presumed at once that they would get it. Mr. Derry's evidence is somewhat confused, but I think the fair effect of it is that though he was aware that under the Act the consent of the Board of Trade was necessary, he thought that the company having obtained their Act the Board's consent would follow as a matter of course, and that the question of such consent being necessary never crossed his mind at the time the prospectus was issued. He believed at that time that it was correct to say they had the right to use steam."
It is instructive that not one of the directors expressed a material doubt about the statement they had made. Their individual beliefs were honestly held, even if not reasonably held.
The result of Derry v Peek is that a false representation can be made fraudulently where it has been made knowingly or without belief in its truth. Nevertheless, an honest belief, even if not reasonably held, is not fraudulent: at 374.

Angus v Clifford

In Angus v Clifford [1891] 2 Ch 449 the plaintiff purchased shares on the faith of a prospectus issued by directors of the company which contained a statement that the reports of certain engineers were "prepared for the directors" when they were, in fact, prepared for the vendors of the mine and gave it a very favourable account. The shares in the company fell greatly in value. In determining whether the directors had engaged in deceit, the Court emphasised the distinction between a fraudulent and negligent misrepresentation, where an action will not lie in the latter case. A statement may be fraudulent, however, if the representor is reckless as to its truth or falsity. As aptly summarised in the headnote to the English Court of Appeal decision: "If he had formed no belief whether the statement was true or false, and made it recklessly without caring whether it was true or false, an action of deceit will lie against him. But not so if he carelessly made the statement without appreciating the importance and significance of the words used, unless indifference to their truth is proved."
Bowen LJ said at 471 (emphasis added): "…the old direction, time out of mind, was this, did he know that the statement was false, was he conscious when he made it that it was false, or if not, did he make it without knowing whether it was false, and without caring? Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity which consists in a wilful disregard of the importance of truth,"
Kay LJ noted the difference between mere carelessness and recklessness, averting to Lord Herschell's speech in Derry v Peek at 476 (emphasis added): "…that making a false statement by mere carelessness does not necessarily amount to fraud. The carelessness must come up to that which was described in Lord Herschell's speech, and in many other judgements before, as recklessness; that is according to the definition given in this speech, an indifference in the mind of the man which makes the statement whether the statement was true or false, without knowing whether it was true or false and without caring."

Pollard

In Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 (Pollard) the issue was whether the offence the plaintiff had committed was an "offence involving fraud or dishonesty". The plaintiff had pleaded guilty to making "a statement which was false in a material particular and which was made with reckless disregard as to whether it was true or false" contrary to s 178BB of the Crimes Act 1900 (NSW). Justice Abadee said at 826: "That to be reckless may amount to dishonesty at least for the purposes of an action for deceit is well illustrated by the cases since Derry v Peek. In Angus v Clifford [1891] 2 Ch 449, Bowen LJ on the one hand distinguished between negligent or careless statements, which he treated as 'honest' and on the other hand, recklessness as to the truth, that is to say some indifference to truth and which was to be regarded as being dishonest."
His Honour found that by including "reckless disregard as to whether it was true or false" in s 178BB of the Criminal Code, the legislature had distinguished reckless in the sense of dishonest from reckless in the sense of careless, the former reflecting what Lord Herschell made clear in Derry v Peek was capable of amounting to fraud: at 826.

McCann

The High Court in McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579; [2000] HCA 65 (McCann) made the following observations when determining the meaning of dishonesty within an exclusion clause for professional indemnity insurance (at [55]-[56]): "[55] Dishonesty is an ordinary concept, not a term of art. It is, on that account, difficult to define in any comprehensive manner. However, dishonesty is a matter to be determined by reference to the mental state of the person whose conduct is in issue. It was pointed out in Peters v The Queen that 'in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent'. That statement was concerned with positive acts, not with omissions. [56] Leaving aside the situation in which there is an honest claim of right, the question whether a failure to act is dishonest is usually answered by considering whether that failure was motivated by a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled."

Farah

The appellant drew the Tribunal's attention to the principles in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah). The appellant ultimately submitted that the Tribunal at first instance was correct to follow Farah, though it applied those principles incorrectly to s 703(1) of the Code.
The issue before the Appeal Panel in Farah was whether an offence under s 400.6(2) of the Criminal Code 1995 (Cth) (the Commonwealth Code) "where the offender deals with money and is reckless as to the fact that the money is proceeds of crime, is an 'offence involving dishonesty'" within the meaning of the Property Stock and Business Agents Act 2001 (NSW) which disqualifies certain people from holding a real estate agent's licence.
The Appeal Panel began by searching for a meaning of dishonesty within that Act, and in the absence of such a definition, framed their approach to the meaning of "dishonest" with a view to the purpose of the Act which was to regulate people working in the real estate industry. The Appeal Panel said at [26]-[28]: "Meaning of 'dishonest' 26. The Macquarie Dictionary online defines 'dishonesty' as: noun (plural dishonesties) 1. lack of honesty; a disposition to lie, cheat, or steal. 2. a dishonest act as a fraud or theft. 27. The word 'dishonest' has been interpreted by the High Court in the context of an exclusion clause in an insurance policy: McCann v Switzerland Insurance Australia Ltd [2000] HCA 65. The clause excluded any liability 'brought about by the dishonest or fraudulent act or omission of the assured.' [Gaudron J] distinguished between an act and an omission at [55] and [56] that: Dishonesty is an ordinary concept, not a term of art. It is, on that account, difficult to define in any comprehensive manner. However, dishonesty is a matter to be determined by reference to the mental state of the person whose conduct is in issue. It was pointed out in Peters v The Queen that 'in most cases where honesty is in issue, the real question is whether an act was done with knowledge or belief of some specific thing or with some specific intent'. Leaving aside the situation in which there is an honest claim of right, the question whether a failure to act is dishonest is usually answered by considering whether that failure was motivated by a desire to conceal the truth or to obtain an advantage to which the person concerned knew he or she was not entitled. (Footnotes deleted) 28. Kirby P made the point out at [89], that dishonesty in the context of a criminal prosecution raises different questions from dishonesty in a contract of professional indemnity insurance. But in relation to the term 'an offence involving dishonesty,' we are of the view that the ordinary meaning, as outlined by [Gaudron J], is the starting point. Whether it has a broader meaning depends on the meaning attributed to the word 'involving'.
The Appeal Panel identified that it is not necessary for the statutory provision creating the offence involving dishonesty to include the word "dishonest" or "dishonesty": at [31].
The Appeal Panel emphasised the words of the disqualifying statute being "an offence involving dishonesty" and thereby confined their approach to consideration of the offence itself instead of an inquiry into the conduct or state of mind of the person when committing that offence: at [39].
The conclusion in Farah that it was is not permissible to look behind the conviction for the offence to the particular facts of the case, has since been approved by the Appeal Panel: Murabito v Commissioner for Fair Trading (No 2) [2020] NSWCATAP 155 at [47]; Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23 (Luk) at [19].
The appellant drew the Tribunal's attention to the application of the abovementioned principles in Farah as set out in Luk at [34], that: "(1) an 'offence involving dishonesty' does not require that the relevant statutory provision contain the word 'dishonest' or 'dishonesty' (examples being stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud); (2) an offence involving dishonesty does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence; (3) it is the offence itself that must involve dishonesty, and it is not permissible to look behind a 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, and 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."

Barber

In Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861 (Barber), another case where the meaning of "offence involving dishonesty" was in issue, Bell J said at [32]: "It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry".

Respondent's material

The respondent submits that recklessness requires awareness of a substantial risk, which can range from "possible" to "probable" outcomes depending on the offence. He submits that the concept of dishonesty "demands a deliberate deviation from expected standards of honesty or a conscious intent to deceive, which extends beyond the threshold of recklessness" and relies on both the Victorian Law Reform Commission Recklessness Issues Paper Appendix: Recklessness in Australia (January 2023) and the Victorian Law Reform Commission Recklessness Report (February 2024) to substantiate this definition (together, the Reports). The latter report includes the following relevant extracts: "The meaning of recklessness 2.20 'Conscious disregard of risk' is the essence of recklessness as a legal concept. The more an offender turns their min to the consequences of their conduct, the more culpable. 2.21 Consequences aside. Recklessness as a fault element is considered more culpable than negligent behaviour, but less culpable than an act done intentionally. In some circumstances there may be little difference between high-end recklessness and intention. 2.22 In Victoria, recklessness is not defined in the Crimes Act. It takes it meaning from the common law. A person is reckless if they know that a particular harmful consequence will probably (is likely to) result from their action, but they continue regardless. The test is subjective. 2.23 The common law definition applies to all offences against the person in Part 1, Division 1 of the Crimes Act involving recklessness. 2.24 A person can be reckless as to: A result (for example, causing serious injury) A circumstance (for example, the victim being an emergency services worker) Intention and negligence 2.25 The fault element of intention sits at the top of the hierarchy of Victorian offences again the person, indicating the highest level of culpability. Intention reflects a decision to bring about an act (general intent) or a result (specific intent). 2.26 A person may also be held criminally responsible if they act 'with the knowledge that a particular circumstance exists, or with the awareness that a particular consequence will result from…the conduct. 2.27 At the lowest end of the scale of culpability is criminal negligence. It is not a true 'state of mind' offence as it involves an objective test and is primarily concerned with a failure to take sufficient care where a legal duty exists. For a person's conduct to be negligent, it must involve 'a great falling short of the standards of care which a reasonable [person] would have exercised'."

Submissions

The appellant submits that dishonesty takes its ordinary meaning from the dictionary definition noted in Farah which includes "a lack of honesty". Whilst the appellant accepts that mere carelessness would not amount to dishonesty, relying on authorities such as Derry v Peek, the appellant submits that making a sworn statement, reckless as to whether the statement is true or not, does indeed amount to dishonesty.
The appellant submits that the Tribunal erred in concluding that a conviction for an offence under s 703(1) of the Code would involve "situations in which the offence is committed, recklessly without knowledge or intent" (at [50]). Contrary to the Tribunal's reasons, the appellant submits as follows: 1. The offence of perjury cannot be proved without knowledge, as recklessness requires proof of a conscious awareness (knowledge) of the risk that the statement is false. 2. Further, intent to secure a particular outcome, is not essential for an offence to involve dishonesty.
Further still, the appellant points to the context in which s 703(1) of the Code should be read, which is to ensure that people who make sworn statements in legal proceedings do so honestly.
The appellant contends that s 703(1) read with the definition of reckless in s 20(2) of the Code, apprehends, at least, the making of a statement involving indifference as to its truth.
On the other hand, the respondent relies on several matters including the decision of the High Court in McCann at [55]-[56] extracted in Farah and set out above. The respondent submits that it is made unequivocally clear from the decision in McCann that "dishonesty entails a purposeful act of deception, rooted in an intent to mislead, and cannot be diluted to cover acts that are merely reckless" (Respondent's submissions dated 6 November 2024, p 6).
The respondent also relies on the broader context of the mischief to which the SI Act was directed, which he submits includes the "unregulated or inadequately regulated access that individuals with serious criminal backgrounds had to the security industry" (Respondent's submissions dated 6 November 2024, p 8). The respondent highlights that the provisions, according to the Second Reading Speech for the SI Act, were designed to "protect the industry against infiltration by the criminal element" (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 19 November 1997).
The respondent submits that the offences should be presumed to be applied strictly to those with serious criminal offences that align with organised crime risks such as armed robbery or violent crimes. Further, the respondent submits that the term "dishonesty" should be construed by reference to the surrounding words of fraud and stealing and construed similarly, in the sense of relating to the taking of property, or a substantial breach of financial trust.
Further still, the respondent takes issue with the appellant's reliance on cases such as Derry v Peek as they involved deceit and were not concerned with interpreting dishonesty in the context of criminal statutes. Finally, the respondent relies on the Reports.
The respondent therefore submits that an act done intentionally or with some specific intent is what makes it dishonest. Mere recklessness does not meet the threshold of dishonesty.
In reply, the appellant responds to each of the respondent's submissions and ultimately presses the relevance of cases such as Derry v Peek as identifying statements of principle. Further, the appellant notes that the prescribed offences involving "fraud, dishonesty or stealing" do not need to be specifically related to organised crime. The appellant highlights that the way in which Parliament has addressed the mischief is to preclude persons from being licensed, when they have been convicted of identified or identifiable offences. This includes by prescribing offences which involve "dishonesty".
The appellant highlights that the expression "reckless" is defined in the Code and reference to the definition of that expression in external material is inapposite or ought to be treated with caution. The appellant relies on the decision of Fihelly v Bluen [2023] ACTSC 393 per McWilliam J (Fihelly) at [43]: "[43] The language of s 20 of the Criminal Code is that used in s 5.4 of the Schedule to the Criminal Code Act 1995 (Cth). In discussing the definition of "recklessness", it has been stated that: (a)The term 'substantial' means 'real or of substance as distinct from ephemeral or nominal': Hann v DPP (Cth) [2004] SASC 86; (2004) 88 SASR 99 (Hann) at [25], cited in Roux at [131], R v RH [2011] ACTSC 38 at [14] and R v Calis [2013] QCA 165 at [33]; (b)The word 'risk' means 'possibility, chance or likelihood': Hann at [25]; and (c) Awareness requires a conscious awareness - it is not enough to show that the risk was obvious or well-known: Hann at [26], cited in Roux at [132]."

Dishonesty

The question for the Appeal Panel is whether the Tribunal erred by construing s 703(1) of the Code as not being an offence involving dishonesty. The question for the Appeal Panel is not whether the respondent's particular conduct or the subjective mind of the respondent was dishonest; it is whether perjury, under s 703(1) of the Code itself, involves dishonesty.
For an offence to involve dishonesty, it must be possible to say so, without further inquiry: Barber at [32]; Farah at [39]. Further, it is not necessary for the offence provision to contain the word dishonest: Farah at [31].
We are here concerned with the question of whether s 703(1) of the Code is an offence "involving dishonesty" in the sense used in the expression "involving fraud, dishonesty or stealing". That expression comes from s 16 of the SI Act, read with cl 15 of the SI Regulation. As adverted to above, the respondent submits that "dishonesty" in that expression should be construed narrowly, having regard to the context of the legislation and the associated words "fraud" and "stealing". However, contrary to the respondent's submission, we are not satisfied that the expression "dishonesty" should be so limited.
As extracted above from the Second Reading Speech, as the Long Title of the SI Act indicates and as stated by the Administrative Decisions Tribunal in Feuerstein, the purpose of the provisions is to ensure that persons convicted of serious offences do not become licensed. The way Parliament has chosen to achieve this is by enumerating certain offences or describing what the offences relate to or involve (relevantly here) fraud, dishonesty or stealing. We do not accept that the list is to be read down.
We are therefore satisfied that dishonesty, as it appears in the expression "fraud, dishonesty or stealing" should be read according to its ordinary meaning. It is not limited by reference to certain types of offences, such as stealing or a breach of financial trust.
The expression "dishonesty" is used in the ordinary sense of that word, which includes an absence of honesty.
We are therefore concerned, here, with whether s 703(1) of the Code is an offence involving dishonesty in the ordinary sense, as it applies to a person who has sworn to tell the truth. Authorities such as Derry v Peek are not irrelevant regarding the general principles and the interplay between dishonesty and recklessness, in the sense that being aware of an untruth and being reckless as to the truth would both be dishonest. Here there is a very specific definition of when a person is taken to be reckless under the Code. That definition is not inconsistent with the principles, stated above, from Derry v Peek and Angus v Clifford.

Substantial risk

The definition of "reckless" requires one to know of a "substantial" risk that the statement is not true. The respondent submits that this may include a merely "possible" risk. However, the expression "substantial" must be read with the rider in ss 20(2)(a) and 20(2)(b) of the Code that in the circumstances known to the person, the risk is unjustifiable to take. This lends colour to the expression "substantial" risk. This does not mean that the person is aware that it is unjustified to take the risk. This element of the definition of reckless is objective, based on the circumstances known to the person. Nevertheless, the requirement that the risk be unjustifiable to take assists in understanding what the expression "substantial" means.
As noted in Fihelly (extracted above) the expression "substantial" means "real or of substance as distinct from ephemeral or nominal".
We consider that "substantial" cannot mean speculative or theoretical or fanciful and, to be reckless under the Code, it must be a risk that is unjustifiable to take.
We therefore reject the respondent's submission that the "substantial" risk that the offence of perjury contemplates is a mere possibility.

Does perjury involve dishonesty?

Putting s 703(1) together with the definition of "reckless" and with the meaning of a sworn statement, we see that the elements of perjury are as follows: 1. A person commits an offence (perjury) if - 1. the person makes a statement of which is said to be true; 2. the statement is false; and 3. the person is aware that there is a substantial risk that the statement is false; and 4. in the circumstances known to the person, it is unjustifiable to take the risk.
A person making a sworn statement must be taken to be aware or to know that they are required to tell the truth. That is the point of swearing (or affirming) a statement. They are making a statement about which they are saying that they hold an honest belief as to its truth. As identified above, where recklessness is the fault element, proof of intention, knowledge, or recklessness satisfies the fault element. Plainly, intending to make a false statement, or making a false statement knowing it to be untrue, is dishonest.
However, the offence of perjury leaves open the possibility (through the fault element of recklessness) that the person did not know that the statement was not true. Where the fault element is satisfied by recklessness, the highest it may be put is that the person made a statement knowing that there was a substantial risk it was not true.
This is not the same as saying that they knew the statement was untrue. The question for the Appeal Panel is whether to make the statement in that circumstance is dishonest.
If, in order to be dishonest, it is necessary to know a statement is untrue, then the offence of perjury does not necessarily involve dishonesty. On the other hand, if, where there is a requirement to tell the truth, it is dishonest to make a statement knowing that there is a substantial risk the statement is untrue, then the offence of perjury involves dishonesty.
It follows from the authorities such as Derry v Peek, that making a sworn statement on an honestly held belief (even if carelessly or unjustifiably held) that the statement was true, when it was not true, is not dishonest.
Here, there can be no suggestion that someone could be convicted of perjury for a false statement that was made carelessly, but with an honestly held belief in its truth. This is because, to be convicted of perjury on the fault element of recklessness, the false statement must be: 1. made in the knowledge of the requirement to tell the truth (they have sworn to do so); and 2. knowing that there is a substantial risk the statement is not true (from the definition of recklessness)
It is not possible to hold an honest belief that a statement is true, whilst simultaneously knowing that there is a substantial risk that the statement is untrue. Put in reverse: to know that there is a substantial risk a statement is not true, is inconsistent with holding an honest belief that it is true. If one knows there is a substantial risk the statement is untrue, then one does not know that what they are saying is the truth.
To be reckless (as defined) as to whether or not the statement is true is tantamount to not holding an honest belief in the truth of the statement.
A sworn statement under Schedule 2 to the Oaths and Affirmations Act requires the person tell "the truth, the whole truth, and nothing but the truth". To be reckless as to whether a statement is false, when required to tell the truth, is to not have an honest belief as to the truth of the statement. That is dishonest.
Further, there is no requirement that there be an intention to defraud or to achieve a particular outcome when, as here, the offence concerns a requirement to tell the truth. The absence of an honestly held belief in what is said, when there is a duty to hold an honest belief, would be sufficient to mark the behaviour as dishonest. As noted by Bowen LJ in Angus v Clifford, extracted above, the moral obliquity is found in the indifference to telling the truth.
The offence of perjury under the Code involves dishonesty.
The appeal must be allowed.

Orders 1. The appeal is allowed. 2. The Decision of the Tribunal is set aside. 3. The Delegate's decision to refuse a Class 1E 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

Amendments 19 February 2025 - Formatting errors amended. 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: 19 February 2025

Criminal Code Act 2002(ACT)

Property Stock and Business Agents Act 2001(NSW)

(2023) 112 NSWLR 564

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