FRW v Commissioner of Police, NSW Police Force

FRW v Commissioner of Police, NSW Police Force - [2023] NSWCATOD 21 - NSWCATOD 2022 case summary — Zoe

In March 2021, the Respondent, the Commissioner for Police, NSW Police Force, refused to issue a licence to the Applicant, FRW, pursuant to the Security Industry Act 1997 (NSW) on the basis that granting a security licence to the Applicant would be contrary to the public interest. The Commissioner reached the same conclusion on an internal review determined in April 2021.
The Applicant, dissatisfied with both the original decision and with the outcome of the internal review, sought external administrative review before the Tribunal of the Commissioner's refusal to issue him with a security licence.
When the Commissioner refused to issue the licence to the Applicant, the Applicant was facing a charge of stalking or intimidation towards a person who was a juror at a trial where the Applicant had sought to defend charges laid against him concerning sexual assault offences. The charge of stalking or intimidation towards the juror was the subject of a hearing in July 2021, in the Local Court of New South Wales, where those charges were dismissed.
In these proceedings and despite the dismissal of the charges which had been expressly referred to in (then his) decision, the Commissioner maintained the position, that having regard to the offence and a history of earlier allegations of serious sexual offences - none of which have been productive of convictions, it was not in the public interest for the Applicant to be granted a security licence.
The type of security licence sought by the Applicant is known as a class 1 ACE. This class of licence authorises the licensee to work as an unarmed guard undertaking the patrol, protecting and guarding of property (class 1A), a crowd controller (class 1C) and, to patrol, protect or guard any property while carrying on monitoring centre operations (class 1E).
For the reasons set out below, the Tribunal has determined that the correct and preferable decision, is for the Commissioner's decision to be affirmed, the consequence being that the Applicant is not to be granted a class 1ACE security licence.

[4]

Evidence and Material Findings of Fact

As will become apparent from the outline of the material below, much of the facts relevant to the application concern allegations of offences committed against people as children and against an intellectually disabled person. To protect the anonymity of those people, I have referred to the parties and the various witnesses by reference to their relationships with each other.
The hearing of this matter was conducted before the Tribunal over two days in March 2022. The Applicant represented himself. The Applicant gave evidence in his own case via a sworn statement as well as being cross-examined by the Commissioner's representative.
In his statement, the Applicant explains that: 1. he has grown up, attended school and lived in the same country town in New South Wales; 2. In 2000, aged about 20, he completed the requisite training and obtained a security licence. 3. Between about 2000 and about 2012, the Applicant held a security licence and worked for various hotels and clubs as a security guard. 4. Between 2012 and 2014, the Applicant obtained full-time employment at the local base hospital, where he worked as a porter or ward officer and security guard. 5. He has no record of any complaints or poor behaviour, or disciplinary matters in the course of his employment at any of the hotels, clubs or hospitals where he has worked using his security licence, 6. In 2014 and 2015, the Applicant was charged with various sexual offences against four people. Three of the complainants are members of the Applicant's extended family. The fourth complainant was a person with an intellectual disability who was not related to the Applicant. The fourth complainant died in November 2019. The offences against each person were alleged to have occurred from about 1997 up to 2006. The charges and allegations are discussed in detail below. At this point, I merely observe that the Applicant, in his written evidence, provides an outline of each charge and the outcome of each proceeding. In particular, the Applicant states that in December 2016, he was convicted at trial before the District Court of New South Wales on the charge concerning a sexual act with an intellectually disabled person, being the fourth complainant, and was sentenced to four years in gaol. That conviction was subsequently quashed after the New South Wales Court of Criminal Appeal, by which time the Applicant had spent three years in gaol. 7. By October 2020, the Applicant had been released from gaol, the charges concerning the fourth complainant were dismissed on re-trial before a judge alone trial in the District Court, and the Applicant was keen to apply for a security licence which had expired and which the Applicant had not sought to renew given the proceedings against him and his incarceration. 8. By December 2020, having completed a new security training course and obtained a new first aid certificate, the Applicant applied for a class 1 ACE security licence as well applying for a working with children clearance. 9. In March 2021, the Applicant says he was advised that his security licence application was refused on the basis that another charge was pending. Other documents reveal that the Applicant was charged with stalk/intimidate an additional complainant - one of the jurors at the Applicant's district court trial, where he was convicted and gaoled. The Applicant states that that charge was dismissed in the Local Court of New South Wales on 1 July 2021.
In cross-examination, the Applicant told the Tribunal that he had not engaged in any of the conduct alleged by any of his nephews, niece or the fourth complainant that led to the criminal charges against him. In his evidence and submissions, the Applicant asserted that his two nephews and his niece had invented the allegations in the context of a family dispute that occurred around 2012 or otherwise in order to obtain compensation payments. The Applicant further suggested that the older of his nephews (Nephew 1) had a personal grievance against him resulting from a time in 2012 when the Applicant spoke harshly to Nephew 1 about Nephew 1's drug use.
There was no objective evidence before the Tribunal concerning a family dispute in 2012. At its highest, the evidence was that the Applicant's eldest sister (Sister 1), the mother of two of the complainants - Nephew 1 and his younger brother (Nephew 2), owned the family business but had left the town and given her younger sister (Sister 2) and brother-in-law a 12-month trial of operating the business in that year. Ultimately, Sister 2 and her husband decided they did not want to continue and handed the business back to Sister 1.
In particular, Sister 2, does not refer to any such dispute within the family at that time, yet she would be expected to be able to give information about this since she was directly involved in the changeover of a business in 2012 - 2013. I note that by 2017 when the Applicant was on trial for offences alleged to have been committed against the applicant's nephews, there is a reference in the court transcript to an altercation between members of the family supportive of the Applicant and members of the family supportive of the Applicant's nephews, but the circumstances of that altercation are not known, and that event comes years after the allegations were complained of by the Applicant's nephews.
Sister 2's husband gave evidence before the Tribunal and does not refer to any family business dispute at all.
In Sister 2's materials, there is some suggestion that she was approached by her family to allege some of her children had been molested by the Applicant, that is the extent of the evidence concerning the fabrication of the allegations made by the Applicant's niece and nephews. Accordingly, I do not find there was any evidence of an ulterior motive on their part in making the allegations against the Applicant arising from a family dispute.
Further, the Applicant presented the following written evidence: 1. Various materials, notices and facts sheets, including: 1. a USB stick showing footage of the Applicant working at the reception booth of a club on 23 November 2006, a date when it was alleged, he exposed his genitals and had been offences against the fourth complainant; 2. his acquittal of the charges concerning the fourth complainant in 2021; 3. a court transcript of the evidence given by the Applicant's niece at the Local Court; 4. the police fact sheet and a record of interview in a police notebook concerning the stalk/intimidate charge; 5. photographs apparently depicting the additional complainant socialising with a witness who gave evidence in his 2016 trial with respect to the fourth complainant (Witness B). 1. A letter of reference from Sister 2. Sister 2 states she has six children, three of whom live with disabilities and that she has relied upon the Applicant for guidance and support from time to time over many years. Sister 2 states that: I have never had any concerns for the safety of myself or my children in [the Applicant's] presence and don't believe any of the accusations made. 1. A letter of reference from the Applicant's Sister 2's husband. Sister 2's husband appeared by telephone link and was cross-examined by the Commissioner's representative. He stated that he had supported the Applicant through the "troubling times" arising from the various allegations, seemingly on the basis of knowing the Applicant and "being present during the alleged period in question and didn't see any wrong doing or suspect any wrongdoing". Sister 2's husband further states that the Applicant has been a great support to him and his children and has been a calming and protective presence in their lives. 2. Sister 2's husband and the Applicant's brother also made statements to the police concerning the incident with the additional complainant giving rise to the stalk/intimidate charge. I will consider this incident and the respective accounts in more detail below. 3. The following character references from non-family members: 1. The first referee states she has known the Applicant since they attended the same high school and that she has observed how responsible the Applicant is and how seriously he takes the responsibilities of being a security guard and as a father. 2. The second referee (Referee 2) describes himself as a close friend of the Applicant since high school, having known the Applicant for over 27 years. Referee 2 states he has no reason to question the Applicant's account in answering the allegations that were the subject of the charges laid against him. Referee 2 also provided a professional reference for the Applicant to the Office of the Children's Guardian in respect of a "Working With Children Check" clearance, that reference covers similar matters. 3. The third referee (Referee 3) worked with the Applicant as a porter or ward assistant at the hospital. Referee 3 states that he has observed the Applicant in all manner of difficult work situations, and he has supported the Applicant during his incarceration and parole. Referee 3 speaks very highly of the Applicant's selflessness and compassion and says he has no concerns for his safety or that of his wife and children in connection with the Applicant. Additionally, Referee 3 provided a professional reference for the Applicant to the Office of the Children's Guardian in respect of a "Working With Children Check" clearance, that reference covers similar matters. 4. The fourth referee (Referee 4) is the owner of a security company operating in the town in which the Applicant resides. Referee 4 states in his letter that there is currently a shortage of trained and licenced security staff in the town. Referee 4 then states that while he is willing to offer the Applicant employment, he cannot guarantee permanent work for a range of practical reasons which are not relevant to the proceedings.
The Respondent contends that the character references show only a limited knowledge of the impugned conduct, and in any event, such references cannot assist the Tribunal in the event the Tribunal makes findings on the balance of probabilities that the conduct occurred. I agree with those submissions and accord little weight to the character references in my consideration.

[5]

Respondent Evidence

The Commissioner tendered the following material at the hearing: 1. a bundle of documents filed pursuant to the Administrative Decisions Review Act, s 58 (S 58 Bundle); 2. a further bundle of documents, in excess of 1,000 pages comprising trials transcripts, statements given to the police, records of interviews (both formal and recorded in police notice books), court attendance notices, order sheets, and charge sheets and a copy of two decisions by the NSW Court of Criminal Appeal. Separately a transcript of evidence was provided of the evidence given in court by the Applicant's niece. It appears that much of this material was obtained under summons after the proceedings had commenced; 3. Witness statements prepared for these proceedings from Witness A, Witness B, two police officers, the additional complainant, Nephew 1 and the Applicant's niece. Of these, Witnesses A and B and the additional complainant were cross-examined by the Applicant.
I will deal with the Commissioner's evidence by reference to each of the allegations. Before doing so, I note the following matters are not in dispute; 1. Prior to about 2013, the Applicant and most of his extended family lived in a country town where most of the offences are alleged to have occurred. 2. The Applicant belonged to a close family that, until about 2013, regularly met up for meals and special events in addition to working in the family business, which had operated two businesses - a takeaway food shop and a restaurant - both of which had been established by the Applicant's parents. 3. The Applicant is the youngest of his siblings and has been referred to in the materials before the Tribunal as the baby of the family. 4. The Applicant and his siblings, including Sister 1, Sister 2 and the Applicant's brother, all worked in the business, as did Sister 2's husband and Sister 1's former spouse. 5. Sister 1, the mother of Nephew 1 and Nephew 2, and the Applicant's eldest sister took over ownership of the family business when her parents retired. Sister 1 is about 16 years older than the Applicant. 6. Nephew 1 and Nephew 2 are the sons of Sister 1 and are closer in age to the Applicant being about 9 or 10 years younger than the Applicant. 7. The charges concerning Nephew 1 and Nephew 2 were heard before a judge sitting alone in the District Court of New South Wales in August 2017. The Applicant was acquitted of all charges after a six or seven-day trial. 8. The mother of the Applicant's niece is another of the Applicant's sisters (Sister 3). 9. The charge concerning the Applicant's niece was heard before a Magistrate in the Local Court of New South Wales. The proceedings were heard in the Local Court because of the age of the Applicant when that offence was alleged to have been committed. That charge was found to be not proven to the requisite standard and dismissed. 10. In late 2012, Nephew 1 had a significant drug addiction problem that required in-patient care first in a hospital and then at a rehabilitation clinic in another town. 11. In December 2016, the Applicant was convicted by a jury of offences against the fourth complainant. However, that conviction was subsequently quashed after the Court of Criminal Appeal determined there had been misconduct by at least two jurors. A retrial, before a judge sitting alone in the District Court of New South Wales, took place after the fourth complainant had died. The Applicant was then acquitted of the charges against him. 12. Save for the quashed conviction in respect of the fourth complainant, the Applicant has not been convicted of any of the offences over which he has been charged. 13. The Applicant has previously held a security licence from 2000 to about 2013 without incident.

[6]

Allegations concerning the Fourth Complainant

In 2016, the Applicant was indicted on the following two charges in respect of the fourth complainant: 1. Charge 1, pursuant to the Crimes Act, 1900 (NSW), s 61J(1): For he, on or about 19 November 2006, at [town] in the State of New South Wales, did have sexual intercourse with [the fourth complainant] without the consent of the said [the fourth complainant], knowing that he was not consenting in circumstances of aggravation; namely that at the time of the offence the said [the fourth complainant] had a serious intellectual disability. 1. Charge 2, made in the alternative to chare 1, pursuant to the Crimes Act, s 66F(3): On or about 19 November 2006 at [town] in the State of New South Wales, had sexual intercourse with [the fourth complainant], a person with an intellectual disability, knowing that the said [the fourth complainant] was a person with an intellectual disability and with the intention of taking advantage with vulnerability to sexual exploitation.
The Applicant pleaded not guilty to both charges.
It will be seen from below that the indicted charges are not the sole issues of conduct that are before the Tribunal in relation to the fourth complainant.
The fourth complainant was an intellectually disabled man who lived with his two brothers, who also suffered from the same genetic syndrome giving rise to an intellectual disability that is described in the reports before the Tribunal as being "mild to moderate". The fourth complainant and his brothers required the assistance of carers - who at times lived-in and at other times dropped in to assist in personal care and decision-making. The fourth complainant was described as having the intellectual capacity and understanding of a young child. In the later record of interview, the fourth complainant identified himself as a gay man. Throughout the 2006 and 2015 records of interview and the trial transcript before the Tribunal, the fourth complainant presented as a person who spoke in simple sentences and who understood questions being put to him. As is typical for any witness, the fourth complainant was very clear about his recollection of particular things and unclear about other matters. the fourth complainant was demonstrably able to tell between the truth and lies or made-up stories, and his account of what happened to him did not seem fabricated or made up.
The fourth complainant was a member of, and regularly attended, a club where the Applicant worked as a security guard or at the reception desk. According to the club's manager, the Applicant had access to club membership records, including the fourth complainant's personal information, including his home address.
According to the Applicant, he knew the fourth complainant from the time the Applicant was 15 years old because the fourth complainant had come into a shop where the Applicant worked as a packer. In his transcript of interview in December 2006, the Applicant stated that the fourth complainant used to follow him around the shop and that the shop owner had suggested to the Applicant that the fourth complainant had a sexual interest in the Applicant because he was a young boy.
In his record of interview in 2006, the Applicant stated that he would be greeted by the fourth complainant when he was working in the foyer booth of the club and that occasionally the fourth complainant would stop and chat with the Applicant, the Applicant then stated to police; "He'll show me his newest porno. And that's about it."
At trial, the fourth complainant agreed that he would sometimes show the Applicant and other staff at the club the videos he had hired from the "Video Ezy" store next to the club. It was not put to the fourth complainant that the videos he was hiring and showing to club staff were pornographic.
In the record of interview in 2006, the Applicant also admitted that he had telephoned the fourth complainant on a phone number given to him by the fourth complainant in November 2006 because; "… [the fourth complainant] told me he'd given me that number to call him because he was going to give me a copy of [a pornographic DVD]."
That the Applicant, in 2006, sought out pornography from a person with had exhibited a sexual interest in him and who had an intellectual disability requiring a live-in carer shows a worrying lack of judgment on his part at the time. Moreover, the Tribunal has had regard to the police statement of the Applicant's former de facto partner (who was the Applicant's de facto for three years from May 2008), in which she states the Applicant had amassed a substantial collection of pornographic DVDs and that he had two external hard drives and a DVD burner for downloading that material from the internet. In those circumstances, it would seem implausible that the Applicant would be chasing up a copy of a DVD hired from the local store, which he could have either borrowed himself or downloaded from another source.
In his record of interview in 2006, the fourth complainant told police that, in the phone call with the Applicant, he had been asked to give the Applicant "a blow job". The Applicant denies making that request in the course of that call or at any other time. However, given the admitted pattern of sexualised communication between the Applicant and the fourth complainant about pornography, I consider it more probable than not that, in the course of that telephone call, the Applicant discussed the concept of oral sex, possibly in terms of an exchange of pornographic material, with the fourth complainant. If, as I have concluded, there was a call which involved such a discussion, this showed a lack of judgment on the part of the Applicant in dealing with vulnerable members of the public which would impact on the Tribunals' assessment of whether it is in the public interest for the Applicant to hold a security licence.
In both records of interview given in 2006 and 2015, the fourth complainant described two specific incidents of sexual misconduct or assault by the Applicant.
The first incident, which formed the basis of the indictment, involved the Applicant coming to the front door of the fourth complainant's home and asking the fourth complainant to perform oral sex. the fourth complainant told the Applicant it was washing day, his brother was about, and he asked the Applicant to leave. On the fourth complainant's account, the applicant refused to leave then he and the fourth complainant ended up in the laundry at the back of the fourth complainant's house, where the Applicant removed his pants, lay on a table and demanded oral sex. the fourth complainant complied with that demand, which he describes as "ending terribly". After this terrible ending, the fourth complainant then says the Applicant ran off.
The fourth complainant said he complied with the Applicant's demand for oral sex because he was terrified of the Applicant. In the transcript of interview, the fourth complainant appears distressed when telling police about this incident, yet he is very clear about precisely what occurred, and he was certain in his evidence that the Applicant was the person who made the demand. The fourth complainant positively identified the Applicant as the person who made him perform oral sex in his record of interview in 2006, in his record of interview in 2015 and, under cross-examination by the Applicant's counsel, at trial in 2016.
A neighbour of the fourth complainant, called here Witness A, gave a statement to police in 2006 about having seen the Applicant leave the fourth complainant's home on the evening when the fourth complainant says he performed oral sex on the Applicant in the laundry.
Witness A gave her statement about ten days after the 2006 incident. In that statement, she says she lived two doors down from the fourth complainant and that standing in her front yard, she had seen a man she did not know, but whom she would later identify from a series of photographs that day as the Applicant, land with his feet on the ground from having jumped over the front fence of the fourth complainant's home, slip on some footwear and head off to the park. The Applicant was almost entirely focused on the fact that, in 2006, Witness A had said the police photograph "looked like" the Applicant in contrast to the photograph being "of" the man she saw. By the Tribunal hearing in 2022, Witness A expressed no such equivocation if, in fact, there had been any, to begin with.
Witness A gave evidence at the hearing in the District Court in 2016 and also before the Tribunal, where she was cross-examined by the Applicant. Witness A was resolute that she saw the Applicant leave the fourth complainant's house, and her account has remained relatively unchanged since 2006.
Witness B is married to Witness A and did not give a statement to police until 2016 - ten years after the alleged incident. He says Witness A called him outside and that he positively identified the Applicant as he crossed the road and turned back momentarily with his face illuminated under a street light. Witness B's account is substantially a reinforcement of Witness A, and while it appears that Witness A has some influence over others - there is a suggestion he influenced jurors at the trial. He gave evidence at the hearing before the Tribunal and was confident of his account.
In answer to the first incident, the Applicant denies any of this occurred and has asserted that the fourth complainant was always telling stories of "sexual conquests" to staff members at the club. This is not corroborated by the statement provided by the manager of the club, even though the Applicant specifically names that person as one of the staff who was told of such events by the fourth complainant.
The Applicant further says that, due to having pins in his hips, he is not able to jump over a fence - and certainly not a fence that is about 1 m high. Thus the account given by Witness A, in particular, that he had jumped over a fence, could not possibly be true.
The Applicant also contended that Witness A had acted inappropriately - indeed, much of the basis of his appeal concerned an allegation that Witness A had influenced the decision-making of jurors at the hearing of the charges associated with the fourth complainant.
The essential fact to be determined is whether the Applicant went to the fourth complainant's house in November 2006 and engaged in a sexual act with the fourth complainant. On the basis of the above, I am satisfied that on the balance of probabilities, the Applicant did go to the fourth complainant's home and engage in a sexual act with the fourth complainant. I have based this conclusion on the consistent account provided by the fourth complainant, the report made by the fourth complainant to his carer shortly after the incident, and the evidence of Witness B and Witness A that they saw the Applicant leaving the home of the fourth complainant on about 19 November 2006 and the time and pay records for the Applicant at the club which show that he was not working at the club on 19 November 2006. The tone and manner of the fourth complainant's evidence, having regard to his intellectual disability, do not suggest any fabrication of the central allegation nor (despite the approach by the Applicant's defence counsel at trial) any misidentification of the Applicant as the offender.
The second incident, which did not form the basis of any charge or indictment, was alleged to have occurred in the front yard of the fourth complainant's home on about 23 November 2006.
The fourth complainant said that the Applicant called out to him, and then, in the front yard, the Applicant exposed his genitals and then either masturbated in front of the fourth complainant or had the fourth complainant manipulate his penis, all this taking place in the presence of one of the fourth complainant's brothers. The Applicant denies that any such activity occurred.
The fourth complainant's carer gave a statement to police in which she said that she arrived after this incident and that she found both the fourth complainant and his brother to be deeply upset and shaken. The carer states that the fourth complainant was shaking and upset and that his brother was crying. It was at that time that she was told the Applicant had exposed himself to the fourth complainant's brother, and the following day she took the fourth complainant to report the matter to the police. The carer gave her statement to police in 2016 when, for reasons which are not well explained, the investigation of the matter was re-enlivened. The carer's statement is to the following effect: … one day back in 2006 I received a call from [the fourth complainant] on my telephone. He seemed upset and he said, "[carer], that [Applicant] was here and he flopped his dick over the rail of the verandah at me". I told [the fourth complainant] that I would go around there straight away. I didn't know who [the Applicant] was.
The fourth complainant was re-interviewed in 2015, and at that time, he was not able to provide a cogent recollection of the second incident in a further record of interview with police.
The Applicant says he was working at the club on the day the fourth complainant says this incident took place. In support of this, the Applicant relies on his time and pay records from the club that show he was working on 23 November 2016 between about 4.30 PM and 9 PM and video footage for that period showing the Applicant at work in that period. However, in the 2006 reports, there is no record by police, the fourth complainant or the carer of what time this second alleged incident is said to have taken place.
I conclude, on the balance of probabilities, having regard to the carer's account and the 2006 account of the fourth complainant, that the second alleged incident did, in fact, occur as the fourth complainant described it to the police in 2006. The fact that this incident did not form the basis of criminal charges is not relevant to the questions that the Tribunal are to determine on this application.

[7]

Allegations Concerning the Applicant's Niece

In 2014, the Applicant's niece reported to the police that, in 1996, she had been indecently assaulted by the Applicant when she slept over at her grandparents' house (where the Applicant resided). The Applicant's niece was a five-year-old child in 1996 at the time of the alleged conduct.
In October 2014, the Applicant was arrested and charged under the Crimes Act, s 61M(2) for the following offence: Indecent assault of a person aged under 10 years between 12.01 am on 11/03/1996 and 11:59 pm on 11/06/1996 at [town] did assault [the Applicant's niece] a person then under the age of 10 years, to wit, 5 years and at the time of such assault did commit an act of indecency on the said [the Applicant's niece].
Since the Applicant was a minor at the time of the alleged offence, the matter was heard before a Magistrate of the Local Court of New South Wales.
The hearing took place in July 2016. The charges were not proven to the requisite standard for such proceedings and were dismissed by the magistrate hearing the matter.
To assist with the prosecution of the matter, the Applicant's niece provided a statement to the police and gave evidence before the Magistrate. In the Tribunal proceedings, the Applicant's niece provided a witness statement that covered the same material as in the criminal proceedings. The partner of the Applicant's niece's and her mother, Sister 3, gave evidence in support of the Applicant's niece's account in the criminal proceedings, and that material is also before the Tribunal.
The Applicant's niece's account is that she was sleeping over at her grandparents' home one night. She says the occasion for sleeping over was a large family celebration. The Applicant's niece says that on the night she stayed over at her grandparents' house, the Applicant entered her bedroom and digitally penetrated her vagina. She says she saw the Applicant but pretended to be asleep. The Applicant's niece says she told two of her cousins, a girl and a boy, what had happened and that she recalls her female cousin reacting with disgust.
Sister 3 gave a statement to the police in which she recalled being told by the Applicant's niece at the christening that she had a sore vagina. Sister 3 says she looked and saw her daughter's genital area looked red and sore, but her daughter refused to say what had occurred and seemed reluctant to discuss what was wrong. Sister 3 states that she was told by the Applicant's niece, when the Applicant's niece was about 15, that she had suffered some kind of sexual abuse when a child but Sister 3 did not press the Applicant's niece on who the assailant was.
In about 2006 or 2007, when the Applicant's niece was about 15, she disclosed details of the incident to her boyfriend and as well as her mother, Sister 3, but she did not say who had assaulted her. Sister 3 says she was so unsuspecting of the Applicant in 2006 or 2007 that she recalls discussing with him who the offender might be. Then, in about 2014, after Sister 3 had told the Applicant's niece that the Applicant was alleged to have sexually assaulted Nephew 1, the Applicant's niece asserted that the Applicant had been the person who had assaulted her, also.
In her affidavit and police statement, the Applicant's niece gives a straightforward account of being the victim of an indecent assault by the Applicant as a five-year-old child. The fact of her late report and the possible confusion with dates are all matters which, on a criminal basis, may be of some weight in determining whether a particular charge is proven to the requisite standard. However, that is not the case in Tribunal proceedings applying a less onerous standard of proof and determining different questions. Despite some confusion with dates, the Applicant's niece's account appeared to be truthful or rather, it did not appear to be fabricated or made for any improper purpose.
The manner and lateness of the Applicant's niece's disclosure of the assault, follows a recognised pattern of disclosure of persons who have suffered sexual abuse as children. This research was reflected in Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report - Volume 4 Identifying and disclosing child sexual abuse (December 2017), at 9 in which the Royal Commission, in summary, stated that: Disclosure is rarely a one-off event, and is a process. Victims will disclose in different ways to different people throughout their lives. Disclosures may be verbal or non-verbal, accidental or intentional, partial or complete. … Many victims do not disclose child sexual abuse until many years after the abuse occurred, often when they are well into adulthood. Survivors who spoke with [the Royal Commission] during a private session took, on average, 23.9 years to tell someone about the abuse and men often took longer to disclose than women (the average for females was 20.6 years and for males was 25.6 years). Some victims never disclose. [footnotes omitted]
Despite being available, the Applicant elected not to cross-examine the Applicant's niece before the Tribunal. However, the Applicant's niece was examined in chief and cross-examined by the Applicant's counsel in the Local Court. Her evidence recorded in the transcript is compelling in its directness about the facts underpinning the charges the Applicant was facing. From the transcript of her evidence, the Applicant's niece appeared to try and give her evidence as clearly, and as reasonably as possible, she did not embellish or seek to promote a position.
As a five-year-old, the Applicant's niece remembers being at her grandparent's house and sleeping over that evening, she recalls all the cousins being around, getting dressed up in stockings and a frilly dress and having to pose for family photographs. All of those recollections appear consistent with the point of view of a young child attending a family celebration. The account given by the Applicant's niece was attacked in the criminal proceedings because she was not clear as to precisely what the family celebration was - it was either the christening of one of her cousins or the wedding of Sister 2. This was not a matter which, in my respectful opinion, detracts from her recollection; as a five-year-old child, it would be relatively immaterial to the Applicant's niece whether the family celebration was a wedding or a christening. Her account was also attacked because she had not accurately drawn a plan of the rooms and bed configurations of her grandparents' house. Again, this does not detract from the accuracy of her central evidence of being assaulted by the Applicant. It would be astonishing if any person, let alone a person recalling a memory made as a small child from many years ago, would be able to draw a completely accurate map. The Applicant's niece's account was also challenged on the preposterous basis that she had dreamt up the incident, a challenge for which no scientific or medical basis was demonstrated. The Applicant's niece's evidence, given as it was from the perspective of a child, together with the lateness of the report arising from shame and discomfort, does not detract, in my opinion, from consideration as to whether the allegation is made out. I have concluded that the Applicant's niece's account of the allegations is truthful and should be accepted.
In cross-examination at the Tribunal hearing, the Applicant stated that the Applicant's niece "would not have slept here" (i.e., at her grandparents' home) and that the conduct alleged never happened. Having regard to the manner in which the Applicant's niece was cross-examined at the Local Court - which was presumably on the Applicant's instruction - the staying over of the Applicant's niece at particular times was never a matter of factual controversy. Having regard too to Sister 3's account, it would seem likely that the Applicant is mistaken and the Applicant's niece and her mother did, on occasion, stay at the Applicant's niece's grandparent's house.
In submissions, the Applicant says he was acquitted of the charges concerning the Applicant's niece because there was no evidence and that he was a person of good character in the eyes of the Court. In fact, there was evidence; from the Applicant's niece and Sister 3. There is no proper reason before the Tribunal as to why that evidence, unchallenged before the Tribunal, apart from a bare denial by the Applicant, should not be accepted.
After considering the Applicant's niece's evidence, including all the supposed inadequacies and the Applicant's response to it and after considering the police statements tendered by the Commissioner from the Applicant's niece's boyfriend and from Sister 3, I have concluded that it is more probable than not that the Applicant did indecently assault the Applicant's niece in about 1996 in the manner the Applicant's niece has described.

[8]

Allegations Concerning Nephew 1

Nephew 1 is the Applicant's nephew. In about 2014, Nephew 1 made a statement to police alleging that the Applicant had sexually abused him as a child from about age eight up to the age of about 12.
In October 2014, on the same date that the Applicant was arrested and charged with respect to offences relating to the Applicant's niece, he was also charged under the Crimes Act, s 61J(1) for the following offence against Nephew 1: Aggravated sexual assault between 12.01 am on 20/12/1998 and 11:59 pm on 27/01/1999 at [town] That [the Applicant] between 20th day of December 1998 and 27th day of January 1999 at [town] in New South Wales did have sexual intercourse with [Nephew 1] without his consent and knowing that he was not consenting to the sexual intercourse in circumstances of aggravation, to wit, that at the time of the offence [Nephew 1] was a person aged under 16 years, to wit, being in fact aged 9.
The allegations made by Nephew 1 in the Tribunal are broader than the above criminal charge. The allegations made by Nephew 1 are serious allegations involving grooming behaviour by the Applicant on a child, which then led to increasingly serious indecent and sexual assaults. Nephew 1 has stated that he would be taken by the Applicant into the Applicant's bedroom on the pretext of playing computer games. Eventually, Nephew 1 says he was shown pornographic material. Then Nephew 1 says the Applicant started to speak to Nephew 1 about sex, touch Nephew 1's genital area, masturbate in front of Nephew 1, ask Nephew 1 to perform oral sex on the Applicant and then perform oral sex on Nephew 1. Nephew 1 described multiple incidents of sexual and sexualised conduct by the Applicant with Nephew 1 as a child. Nephew 1 also asserted that, sometimes, the Applicant would give Nephew 1 alcohol and that ultimately the Applicant engaged in sexual intercourse with Nephew 1, including once while Nephew 1 was so intoxicated with alcohol that he was passing in and out of consciousness. Nephew 1 says this conduct persisted for about three years until, at the age of about 12 - just before he started high school, Nephew 1 threatened to tell his father about what the Applicant had done and was trying to do to him. There are particular incidents that are specifically asserted and which are described in detail in Nephew 1's testimony, including one incident when Nephew 1 came home sick from school only to be assaulted by the Applicant and another where he was made to engage in oral sex with the Applicant while they were on a family holiday outside of New South Wales.
Nephew 1 gave evidence on affidavit for the present proceedings. Nephew 1 again asserted that he had suffered from sexual abuse as a child at the hands of the Applicant and that his drug dependence had been a means by which he had tried to cope with the trauma inflicted by the Applicant. Nephew 1 stated in his affidavit that he was particularly concerned that, if the Applicant were granted a security licence, then vulnerable people, including children, might be put at risk.
Nephew 1's stated motivation in giving evidence before the Tribunal is consistent with the research and findings of the Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report - Volume 4 Identifying and disclosing child sexual abuse (December 2012), at 25 which commented that: We heard that many survivors of child sexual abuse disclosed because they wanted the abuse to stop or wanted to stop it from happening to others. Others disclosed because they could no longer carry the burden of the secrecy of sexual abuse. As noted, disclosure is often one of the only ways in which child sexual abuse can be identified. [footnote omitted]
Nephew 1 was available for cross-examination, but the Applicant elected not to cross-examine him.
Nephew 1 was cross-examined at trial in 2017 by the Applicant's defence counsel. The Applicant's counsel put to him that a particular incident, where he came home sick from school one day and was sexually assaulted by the Applicant, was not possible and that he had made up all of the allegations concerning the Applicant because the Applicant had either expressed a strong discouragement of Nephew 1's drug use or had refused to assist Nephew 1 with his drug debts. Nephew 1's evidence at trial was clear - he was certain that he had been repeatedly sexually abused by the Applicant, including the specific incident when he came home from school.
In answering the alleged conduct concerning Nephew 1, the Applicant says that about 12 months before Nephew 1 made his report to the police, Nephew 1 had been a patient in the mental health unit of the hospital where the Applicant worked as a porter. While Nephew 1 was a patient in the mental health unit, the Applicant says that he went to see Nephew 1 and: I tried to snap him out of it, his drug use, I called him a "drug fucked idiot" and told him if he didn't stop this, he would end up permanently in a place like this or Gaol. To which he threatens to "destroy my life" documented in my security log book and in evidence in my trial and the transcripts.
Pausing there, the Applicant's evidence about this interaction requires some comment. The Applicant admits that, while on duty as a porter in a hospital, he gained access to a mental health unit, being a declared mental health facility for the purposes of the Mental Health Act 2007 (NSW) using his position as a member of staff - he records the interaction in his staff notebook - and verbally abused Nephew 1 in an apparently well-intentioned attempt to "snap him out of it" - "it" being drug addiction. In doing so, the Applicant has shown a serious lack of judgment and a complete lack of awareness of the regulatory framework which seeks to protect patients admitted to a mental health facility and which is intended to protect those patients in recognition of their vulnerability and need for care to promote their recovery. At the hearing, the Applicant showed no insight into the fact that his actions here were inappropriate. This is another matter which the Tribunal considers relevant in determining whether it is in the public interest for the Applicant to hold a security licence.
The Applicant's assertion that Nephew 1's allegations arose from this unfortunate intervention attempt is not supported by the chronological evidence. Nephew 1 had been admitted to the mental health unit of the hospital in about October 2012. More than six months earlier, in about March 2012, Nephew 1 disclosed being the victim of sexual abuse to police; a senior constable of police working in the town in which he lived gave a statement that was tendered by the Commissioner in which she stated that while on patrol she and another officer spoke to Nephew 1 who stated he had a need to use illicit drugs because he had been sexually assaulted as a child. The senior constable giving this statement records her shock and surprise as being the basis for her recollection in her statement made nearly three years later.
There is nothing remarkable about Nephew 1's evidence that suggests to the Tribunal that he should not be believed. Nephew 1 was not shown to be dishonest in his evidence, and the Tribunal rejects any suggestion that it is axiomatic that a person suffering from an addiction is a liar. Nephew 1's account of what occurred to him was consistent in his written and sworn testimony before the court, and his disclosure follows a recognised pattern as discussed with reference to the Applicant's niece. His account is detailed and, aside from some minor matters, does not conflict with objective facts, including that; the Applicant had pornography in his bedroom, which he kept locked, the Applicant had alcohol in his bedroom, and the Applicant allowed or encouraged Nephew 1 to play computer games in the Applicant's bedroom.
Nephew 1's account is supported in many respects by the account given of his younger brother, Nephew 2. That support includes Nephew 2's description of visiting and playing video games with the Applicant, the Applicant having a lock to his bedroom door and the fact that, from Nephew 2's perspective, Nephew 1 received more attention and seemed to be favoured by the Applicant.
Nephew 1's evidence of suffering sexual abuse as a child follows a typical trajectory of friendship, grooming, normalisation of sexualised conduct and actual sexual abuse. The use of grooming tactics by perpetrators of child sexual abuse is described by the Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report - Volume 4 Identifying and disclosing child sexual abuse (December 2012), at 12 in the following terms: Perpetrators can use grooming and other tactics to enable and facilitate the sexual abuse of children. They may groom to gain access to a victim, initiate and maintain sexual abuse of that victim, and conceal the sexual abuse from others who may identify it. These types of behaviours and tactics are often complex and incremental. They help to establish an emotional connection and build trust. They can involve a range of subtle, drawn out, calculated, controlling and premeditated behaviours. These tactics were a common feature of many accounts that we were told about during private sessions and in our case studies that contributed to silencing victims and survivors.
Further, the Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report - Volume 4 Identifying and disclosing child sexual abuse (December 2012), at 104 and noting the purpose of the Royal Commission was to look at institutional responses, observed that: Grooming often occurs over an extended period of time, beginning with extra attention and non-sexual touching, and becoming increasingly more intimate and intrusive. It is inherently manipulative and difficult for outsiders to detect, and can extend to grooming the child's family and the broader institution.
Aside from his denial, the Applicant has not led evidence to demonstrate that Nephew 1's account of the abuse is untrue. He asserted that Nephew 1 was the subject of domestic violence-related charges and continues to have a drug addiction, but these matters were never put to Nephew 1, and there was no objective evidence tendered to support those assertions. I reject the submission that Nephew 1 was motivated to make the allegations because of being spoken to harshly by the Applicant or because of any family dispute.
Accordingly, I accept Nephew 1's evidence and reject the Applicant's denials and explanations. I find that Nephew 1 was sexually abused by the Applicant as a child.

[9]

Allegations Concerning Nephew 2

Nephew 2 is the Applicant's nephew and the brother of Nephew 1 - they are both sons of Sister 1.
In June 2014, Nephew 2 made a statement to police alleging that the Applicant had behaved in a sexually inappropriate manner with when Nephew 2 was about 11 or 12. In October 2014, on the same date that the Applicant was arrested and charged with respect to offences relating to Nephew 1 and Nephew 2, he was also charged under the Crimes Act, s 61N(1) for the following offences against Nephew 2: 1. The first charge was: Incite person aged under 16 years to commit act of indecency between 12.01 am on 09/09/2001 and 11:59 pm on 27/01/2002 at [town] did incite [Nephew 2] a person then under the age of 16 years, to wit 11, to an act of indecency with [the Applicant]. 1. The second charge was: Commit act of indecency between 12.01 am on 09/09/2001 and 11:59 pm on 27/01/2002 at [town] did commit an act of indecency with [Nephew 2] a person then under the age of 16 years, to wit, between 11 and 12 years of age.
Nephew 2 gave a statement to the police in 2014 and a further, more detailed statement in 2015. Nephew 2 also gave evidence in the trial before in the District Court of New South Wales in 2017. He did not provide a statement or affidavit in the Tribunal proceedings and thus was not made available to the Applicant for cross-examination.
The central allegation made by Nephew 2 is that he would play computer games with his uncle, the Applicant in the Applicant's bedroom and that on one occasion when he was about 11 or 12, the Applicant and Nephew 2 were together when the Applicant had Nephew 2 watch a pornographic video and suggested to the Nephew 2 that the Applicant should they each touch each other's genitals. In his evidence in chief to the District Court, Nephew 2 said; He asked me if he - I wanted to be jerked off and if I would like to jerk him off.
Nephew 2 said that he knew the door to the Applicant's bedroom was locked, and he was upset by having to watch pornography with the Applicant on the Applicant's bed, and that he started to cry.
The Applicant then left the room only to return, covered in sweat and breathing heavily and say to Nephew 2, "Are you done? Did you come or what?"
In response, Nephew 2 stated he became more upset and cried harder. The Applicant then left and arranged for Sister 1, Nephew 2's mother, to pick him up.
Nephew 2 said he was terrified of what had happened and that he did not play video games with the Applicant again.
Nephew 2 also stated that he had always considered Nephew 1 (his brother, who is about 18 months older), to be favoured by the Applicant and that as a child, he had often seen Nephew 1 go into the Applicant's bedroom alone with the Applicant.
Nephew 2 first disclosed this allegation to his mother in late 2013 when his mother had told him of Nephew 1's allegations.
At trial, defence counsel for the Applicant suggested to Nephew 2 that he made the allegations against the Applicant to bolster or supply tendency evidence in support of Nephew 1's allegations. Nephew 2 denied this.
The Applicant denies ever behaving inappropriately towards Nephew 2.
The Applicant further says that one of the reasons for his acquittal in respect of Nephew 1 and Nephew 2 in 2017 was that Nephew 2: "was on some sort of medication that may have been affecting his concentration the day of court for not being able to face the camera and could not answer the questions put before him (in the court transcript).
Nephew 2 was, in fact, examined at the trial in the District Court over two days. Despite suffering deafness in one ear, he appeared from the transcript to answer each and every question put to him in a responsive manner - even when counsel for the Applicant persistently mixed up his name with that of Nephew 1. There is nothing in the transcript provided to the Tribunal to support the Applicant's contention that Nephew 2 did not answer questions being put to him.
Nephew 2's allegations, as frightening and disturbing as they are, are not in the same order of seriousness as the conduct alleged by Nephew 1. However, the allegation made against the Applicant is that he engaged in sexualised conduct and proposed acts of indecency with a child after Nephew 1 had refused to continue to be abused by him. This confluence adds some support to the likelihood that Nephew 2's allegations are true.
There was controversy concerning Nephew 2's account about the kind of video game he played when visiting his grandparents and the Applicant (who lived at home with his parents). It appeared that the version of the game that Nephew 2 said he was playing in late 2001 or early 2002 was not released, even in beta form, until 2003. In his evidence before the District Court, Nephew 2 was resolute about the kind of computer game he was playing at the time of the alleged conduct - even when directly put to him that his dates must therefore be incorrect. Accordingly, I have concluded that considering the perspective of an 11 or 12-year-old boy with an interest in computer games, Nephew 2 may have confused the precise date when the alleged conduct occurred rather than being confused about the game he was interested in when he says he suffered the act of indecency.
While human memory is not a perfect record, I do not consider the fact that Nephew 2 may have been confused about dates as detracting from the force of his allegation against the Applicant. His account of those events was consistent, and aspects of his allegation, in particular, the Applicant's access and interest in pornography, are well supported by other evidence, including: 1. from the evidence of the Applicant himself - in respect of having an interest in pornography and discussing pornography with, for example, the fourth complainant; and 2. as well as from the evidence of the Applicant's former de facto partner, who provided a statement to the police concerning the Applicant's large collection of pornographic materials, and his wide variety of sexual interests.

[10]

Allegations Concerning the Additional Complainant

The additional complainant was a juror in the trial that convicted the Applicant of the charges concerning the fourth complainant in 2016. That conviction was subsequently quashed on appeal because of juror misconduct. In applying for an appeal, the Applicant had sought an inquiry into juror conduct by the NSW Sherriff. Initially, it had been alleged that one element of juror misconduct was that the additional complainant, known as Juror 2, had been a regular drinking companion of Witness B and that another person, Juror 1, was related to the Applicant's niece by marriage and was and may have been in communication with the Applicant's niece during the trial.
By the time the matter was returned to the Court of Criminal Appeal, with the Sheriff's report admitted into evidence, the parties had accepted that there had been a miscarriage of justice arising from juror misconduct but on a different basis than initially alleged and in respect of Juror 1 and another juror known as Juror 3. 1. Juror 1 was found to have uploaded material on her Facebook page which indicated a predetermined view against any person accused of child sexual offences. The Court of Criminal Appeal concluded that, though she had not expressed this view openly in deliberations, a fair minded person would conclude that Juror 1 could not bring an impartial mind to jury deliberations on a case such as this. 2. Juror 3 reported to the Sherriff that they had been told by another juror that the Applicant was facing other charges in respect of children in his family. The Court of Criminal Appeal concluded that a fair-minded and informed member of the public may conclude that Juror 3 and the person who had communicated the information to them would not be able to discharge their duty to consider only the admissible evidence presented to the jury in the trial.
The additional complainant and any conduct he was alleged to have engaged in was not mentioned by the Court of Criminal Appeal in its decision.
The additional complainant gave a statement for the Tribunal proceedings and was also cross-examined by the Applicant. The effect of the additional complainant's evidence was: 1. He is not well acquainted with, nor is he a drinking partner of Witness B. He has seen him and knows his name, but the additional complainant does not socialise with Witness B, and the additional complainant did not attend the club where they are both members (and where the Applicant was employed) at any time during the 2016 trial. 2. Having regard to the photographs tendered by the Applicant, which appear to show the additional complainant with Witness B, the additional complainant says these photographs were taken at an angle and in fact, they were seated at separate areas, and he was not at all in company with Witness B. 3. He did not say to the Applicant that he had been told by Witness B to return a guilty verdict at the trial. 4. On 27 May 2020, he was walking down the street when someone from behind said, "Hello [the additional complainant]". The additional complainant says he did not immediately recognise the Applicant, who was standing next to the door of the car. The additional complainant says the Applicant was alone. The additional complainant then said hello to the Applicant, and the following exchange took place: What the fuck are you talking to me like that for? You're one of the arseholes who put me in gaol for something I didn't do. 1. At that point, the additional complainant says he recalled it was the Applicant and said to him: I'm going to the police about this.
In his police statement, the additional complainant stated that he felt "a bit nervous, fearful and intimidated" by this exchange.
The Applicant admits to having some kind of exchange with the additional complainant and saying something unfriendly but not threatening, such as "good job putting that sex pest away".
As outlined above in paragraph 16(4) above, Sister 2's husband and the Applicant's brother gave statements to the police that they were present and witnessed this exchange. the additional complainant expressly denies this in this affidavit to the Tribunal. According to the statements of Sister 2's husband and the Applicant's brother, the Applicant and Sister 2's husband collected the Applicant's brother from the local police station where he had attended in relation to some traffic offences. The Applicant then drove his brother and Sister 2's husband back to the home of Sister 2's husband. On the way, the Applicant pulled the car over to the side of the road at his brother's request - he was concerned he had left his phone behind at the police station. For reasons which are not well explained, the Applicant not only pulled over but got out of the car entirely. The Applicant then saw and spoke to the additional complainant. Both Sister 2's husband and the Applicant's brother deny, however, that there was anything threatening said or done by the Applicant or that they intentionally crossed paths with the additional complainant.
The Applicant's admitted conduct in respect of the additional complainant, is, therefore: 1. He spoke to the additional complainant in the street when he was near a car. 2. He said something unfriendly to the additional complainant, referring to the jury trial at which he was convicted.
I do not consider that the Applicant's conduct, even wholly accepting the evidence of the additional complainant, amounts to a proper basis for charging or convicting the Applicant of stalking or intimidating the additional complainant. However, the Applicant's admitted conduct shows, once again, a lack of judgment in an emotionally pressurised situation. Had the Applicant exercised prudence in his judgment and self-regulation, he would have ignored the additional complainant entirely and said nothing to him.
While it is understandable from the Applicant's point of view that he would harbour less than generous feelings towards the additional complainant, particularly given that the Applicant thinks that the additional complainant is bound up with Witness B, his lack of judgment in saying anything to the additional complainant suggests that the Applicant is a matter which carries weight on the Tribunal's consideration on his application.

[11]

Legal Context

The Tribunal's jurisdiction is enlivened pursuant to the Security Industry Act, s 29(1) and the Administrative Decisions Review Act 1997 (NSW), s 9. Those provisions allow the Applicant to apply to this Tribunal for an administrative review of a decision to refuse to grant him a security licence.
The Commissioner, after considering an application for a security licence, may refuse to issue a licence; Security Industry Act, s 21(1). In this case, the Commissioner's decision to refuse to grant the Applicant a licence was expressed as being made by reference to the Security Industry Act, s 15(3). However, at the hearing and in written submissions filed four months prior to the hearing date, the Commissioner further submitted that the Security Industry Act, s 15(1)(a) was applicable if not on its own but also to inform the inquiry under s 15(3). For the reasons I set out at paragraph 111 below, I consider that both sections 15(1)(a) and 15(3) form part of the applicable law, and I note that both parties specifically have addressed the Tribunal on matters relevant to each of those provisions.
The relevant provisions of the Security Industry Act provide: 15 Restrictions on granting licence - general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant - (a) is a fit and proper person to hold the class of licence sought by the applicant, or … (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. … (6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant or whether the grant of the licence would be contrary to the public interest, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that - (a) is relevant to the activities carried out under the class of licence sought by the applicant, or (b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or (c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
The scheme of the Security Industry Act suggests that the subsections within s 15 should be considered seriatim.
The Court of Appeal has explained in Banerjee v Commissioner of Police (2018) 98 NSWLR 730; [2018] NSWCA 283 at [14], that the task of considering an application for a security licence is undertaken on the basis of several mandatory and discretionary criteria. Of these criteria, while a state of satisfaction or opinion is required to be reached in each case, some are concrete matters - such as age or immigration status (ss 15(1)(b) and 15(1)(f)) while others, most particularly s 15(3), require evaluative judgments; see also Commissioner of Police, NSW Police Force v Fakhouri [2021] NSWCATAP 226.
In conducting its administrative review, the Tribunal does not seek to interrogate or justify the reasoning of the Commissioner. Rather, in proceedings such as these, the Tribunal must determine the correct and preferable decision having regard to the material before it at the hearing, including the facts and applicable law; Administrative Decisions Review Act, s 63. Further, there is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354, 357; [1984] FCA 57.
Administrative review proceedings are not adversarial. Neither party in these proceedings bears a burden of proof; Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28]-[34]
As there is no evidentiary onus, there is also no formal standard of proof to be applied to the findings of fact made by the Tribunal. Nonetheless, the Tribunal takes the civil standard of proof as a general approach or guide; Manning v Commissioner of Police [2020] NSWCATAD 111 at [33]. The civil standard refers to the balance, or preponderance, of probabilities in respect of its determination of the material facts. The Tribunal is likewise cognisant of the fact that the requisite satisfaction on a factual finding depends to some extent upon the gravity of the allegations and the consequences of same. Such an approach was reflected upon in Bronze Wing International Pty Limited v SafeWork NSW [2017] NSWCA 42 at [127], where Leeming JA (Basten JA & Gleeson JA concurring) stated: In those circumstances, his Honour's reasons at [77] … reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply. They should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 reflects a more general approach to fact-finding, which is applicable by analogy to NCAT.
Much of the material before the Tribunal concerns the details of criminal offences which the Applicant was charged with but was either ultimately not convicted or his conviction quashed on appeal. In proceedings such as this, the Tribunal does not re-litigate a criminal trial or trials - nor does it require facts to be proven at the criminal standard. The Tribunal is not constrained from making findings about an applicant's conduct that differ from the findings or conclusions of a criminal court in relation to the same allegations, nor is the Tribunal bound by the outcome of criminal proceedings - it may come to a contrary view on the same or similar material; Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352; [2015] HCA 7 at [33], [48] - [49].
The Commissioner, after referring to Today FM, submits that the Tribunal can determine itself, on the balance of probabilities, the conduct of an applicant and whether such conduct justifies the refusal of a licence. I respectfully agree with that submission and note that in Commissioner of Police, New South Wales Police Force v Mercer [2005] NSWADTAP 55 at [20], considering a question of whether something in the nature of an estoppel arises where conduct has been the subject of criminal proceedings where charges were not proven, the Appeal Panel observed that the duty of the Tribunal is to take into account any relevant material going to the question of what may be the correct and preferable decision. The Appeal Panel went on to note: … The mere fact that a court has dismissed charges is of no great moment. It is the reasons why the charges were dismissed that matter. If an offence has failed on a technical point, as has been strongly asserted by Mr McLaughlin in this case in relation to at least one of the charges, the statements of prosecution witnesses may retain high probative value for the purposes of the exercise of the licensing discretion. Obviously, if they were not subject to cross-examination at the local court proceeding, then care would need to be exercised at the point of any inquiry by the Tribunal that a process of that kind be allowed.
Such an approach has been expressly supported by later decisions, including the Court of Appeal's decision in Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] as well as Hailes v Commissioner of Police, NSW Police Force [2022] NSWCATAD 37 at [95]; Esterman v Commissioner of Police, NSW Police Force [2014] NSWCATOD 70 at [30].
In Esterman, the Tribunal noted that its role differs from that of a court; the relevant inquiry of the Tribunal is whether the behaviour (if established) is relevant to the consideration of whether the applicant is a fit and proper person to hold a security licence and whether it would be in the public interest for him to do so.

[12]

Public Interest

As noted above, the Security Industry Act, s 15(3) provides that the Commissioner (and hence the Tribunal) may refuse to issue a licence if it considers that the issue of such a licence would be contrary to the public interest.
In Commissioner of Police v Toleafoa [1999] NSWADTAP 9 at [25], the Appeal Panel considered that the 'public interest' was an inherently broad concept providing the decision maker with the ability to consider matters where the character of the applicant was either not relevant, or where the objection to character would not be sufficient, alone, to warrant refusal or revocation of, in that case, a firearms licence. The appeal panel expressed similar consideration regarding the breadth of the term public interest in Constantin v Commissioner of Police [2013] NSWATAP 16.
The Appeal Panel's statements in Toleafoa reflect the statement in Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 61 IR 455 at 479-480; (1995) 131 ALR 657 per Wilcox CJ and Keely J with whom Moore J agreed, to which both parties refer in submissions that: The purpose of the reference to ''public interest'' is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission's consideration. The effect of the reference is to amplify the ''scope and purpose'' of the legislation.
In Nastav v Commissioner of Police, NSW Police Force [2018] NSWCATOD 71 at [51], the Tribunal observed that the inclusion of the term "public interest" in the Security Industry Act and other legislation, is designed to give the broader interests of the community priority over the private interests of individuals. After considering other decisions of the Tribunal touching on the concept of public interest in various licensing contexts, including Ahmed v Commissioner of Police, NSW Police Force [2017] NSWCATAD 73; Roberts v Commissioner for Fair Trading [2016] NSWCATAD 218; Smith v Commissioner of Police & Commissioner for Fair Trading [2014] NSWCATAD 184, the Tribunal in Nastav noted that the Tribunal had approached the term public interest in the following manner: (1) "public interest" is a term embracing matters, among others, of standards of human conduct and of the functioning government and government instrumentalities. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals; (2) "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual; (3) an applicant's personal interests in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry; and (4) the "public interest" allows 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 …
The Tribunal's consideration of what is the 'public interest' is properly confined to the subject matter, scope and purpose of the relevant legislation; Laing v Commissioner of Police New South Wales Police Force [2017] NSWCATAD 315 at [31], citing O'Sullivan v Farrer (1989) 168 CLR 210, [1989] HCA 61 at [13].
In Feuerstein v Commissioner of Police, NSW Police Force [2007] NSWADT 114 at [11], the Tribunal stated in relation to the Security Industry Act 1997: 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 personal interests of an applicant for a security licence cannot outweigh relevant public interest considerations in respect of the Security Industry Act. Nor are the applicant's personal interests relevant to the public interest considerations, Those relevant public interest considerations include the community having full confidence in the professionalism of people involved in the security industry; Blissett v Commissioner of Police, NSW Police; Web Protection Australia Pty Limited v Commissioner of Police, NSW Police [2006] NSWADT 114 at [32]

[13]

Fit and Proper Person

Pursuant to the Security Industry Act, s 15(1)(a), the Commissioner is required to be satisfied that an applicant for a security licence is a fit and proper person. If the requisite level of satisfaction is not reached, the Commissioner (and hence the Tribunal) must not allow a licence to be issued.
The term "fit and proper person" carries no precise meaning, a determination of whether an applicant is a fit and proper person must be determined by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380; [1990] HCA 33, per Toohey and Gaudron JJ; Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28.
The content of "fit and proper" may include a person's moral integrity and rectitude of character: Ex parte Meagher (1919) 336 WN(NSW) 175 at 179.
Determination of whether a person is "fit and proper" is a subjective exercise on the part of the decision-maker. In Bond at 388, Toohey and Gaudron JJ further stated: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
These statements have been considered at some length in numerous decisions of the Tribunal, most significantly the Appeal Panel's decision in Austin v Commissioner of Fair Trading [2016] NSWCATAP 179 at [58], the factual context in Austin being an applicant with a criminal history seeking at tattooist licence.
What arises from the authorities is that the determination of whether an applicant is a fit and proper person is not, alone, an assessment of an applicant's character but also an assessment of their conduct, likely future conduct, community confidence that improper conduct will not occur, and knowledge of the duties and responsibilities of the licence holder; Austin at [58].
As noted in the Tribunal's decision in Keegan-Jaques v Commissioner of Police [2017] NSWCATAD 145 at [6], statutory licensing regimes (in that case in respect of firearms) are concerned with protecting the public, not punishing individuals. Such consideration is not limited to an assessment of the particular characteristics of an applicant, but instead requires consideration of the contextual risks to the public if the applicant were to be granted a security licence. The importance of context is highlighted in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230 at [27], where the predecessor to this Tribunal distinguished between considerations of what constitutes a "fit and proper person" in the contact of assessing a person as suitable to hold a taxi licence and the considerations attendant upon the same phrase "fit and proper person" applicable to applicants for security licences: … I note that a person may well be a fit and proper person to hold a taxi licence while at the same time not be a fit and proper person to hold a security licence. I agree with the view expressed by the Commissioner's delegate that the expression "fit and proper person" takes its meaning from its context. A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.

[14]

Consideration

In this case, the conduct the Tribunal has found was carried out by the Applicant against the fourth complainant, the Applicant's niece and Nephew 1 was extremely serious. The conduct shows a serious departure from any recognised standard of conduct. In each case, the Applicant abused his power (as an employee with respect to the fourth complainant and as a trusted family member in respect of the Applicant's niece and Nephew 1) in respect of vulnerable people for his own gratification.
While the conduct with regard to Nephew 2 was less serious, it showed a propensity by the Applicant to continue to engage in conduct that subjected vulnerable people - children and the intellectually disabled - to harm. It also showed a departure from proper standards of conduct and protection in respect of children.
Moreover, the Applicant's admitted conduct in respect of interactions with the fourth complainant, Nephew 1, and the additional complainant, as set out respectively in paragraphs 29, 71, and 104 above, give the Tribunal further cause for concluding that the Applicant is not a fit and proper person, nor would it be in the public interest for the Applicant to hold a security licence.
The Tribunal is not satisfied that the Applicant is a fit and proper person to be granted a security licence having regard to: 1. the applicable law and the authorities set out above; 2. the Tribunal's factual findings that the conduct alleged by the Commissioner in respect of the fourth complainant, the Applicant's niece, Nephew 1 and Nephew 2, in fact, occurred by reference to the civil standard of the balance of probabilities; and 3. the Tribunal's factual findings regarding the lack of judgment demonstrated by the Applicant in his interactions with the fourth complainant prior to the conduct, his interaction with Nephew 1 while Nephew 1 was an inpatient in a declared mental health facility and his interaction with the additional complainant on the street after his release from gaol; and 4. finally, with respect to each of the factual findings referred to above, the multiplicity of the instances of inappropriate conduct and the lapses of judgment admitted by the Applicant, it is possible or indeed likely, that the Applicant will engage in conduct of a similar kind in the future.
Accordingly, pursuant to the Security Industry Act, s 15(1), the Applicant must not be issued a security licence.
Given the Tribunal's conclusion that the Applicant is not a fit and proper person to hold a security licence, further consideration becomes moot. However, in the event that the Tribunal is mistaken as to the determination on that question, the Tribunal is not satisfied, having regard to the applicable law and the factual findings noted above that it would be in the public interest for the Applicant to be granted a security licence in any event. Consequently, and having regard once again to the factual findings above, the proper exercise of the discretion pursuant to the Security Industry Act, s 15(3) would be that the Applicant should not be granted a security licence.

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