Coram : DR B DE VILLIERS (MEMBER), MR M SPILLANE (MEMBER), BRIG A G WARNER (SENIOR SESSIONAL MEMBER)

Citation : A and COMMISSIONER OF POLICE [2005] WASAT 121

Appeal from State Administrative Tribunal - Application for crowd control licence - Relevance of evidence of unresolved criminal charges to character requirement

Security and Related Activities (Control) Act 1996 (WA), s 12, s 35, s 47, s 52

State Administrative Tribunal Act 2004 (WA), s 27, s 32, s 105

Interpretation Act 1984 (WA), s 51

Collins v Estate Agents Board (1994) 7 VAR 394

Coulthard v Henker [2003] WASCA 187

Ex parte Meagher (1919) 19 SR (NSW) 433

Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127

Maxwell v Director of Public Prosecutions [1935] AC 309

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482

R v Connell & Anor; Ex parte The Hetton Bellbird Collieries Ltd & Ors [1944] HCA 42; (1944) 69 CLR 407

R v Roberts; R v Urbanec [2004] VSCA 1; (2004) 9 VR 295

Sharp v Wakefield [1891] AC 173

Smith v Director-General of Transport [2004] WASCA 64

Stirland v Director of Public Prosecutions [1944] AC 315

TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992

Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629

Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321

Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232

Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12

R v War Pensions Entitlement Appeal Tribunal; ex parte Bott [1933] HCA 30; (1933) 50 CLR 228

Re Martin; ex parte Dipane [2005] WASCA 111; [2005] 30 WAR 164

Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S 20 2002 [2003] HCA 30; (2003) 198 ALR 59

Rodriguez v Telstra Corp [2002] FCA 30

Tavelli v Johnson, unreported; SCt of WA; Library No 960693; 25 November 1996

TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119; (1988) 82 ALR 175

Waterford v Commonwealth [1987] HCA 25; (1987) 163 CLR 54

1 JOHNSON J: The appellant appeals part of the decision of the State Administrative Tribunal ("the Tribunal") given on 30 May 2005, in which the Tribunal set aside the respondent's decision to refuse to issue a security officer's licence to the appellant but affirmed the respondent's decision to refuse to issue a crowd controller licence to the appellant. Leave to appeal the Tribunal's decision to affirm the decision to refuse to issue a crowd controller's licence was granted by the Hon Justice Le Miere on 12 August 2005.

2 The appeal is on the single ground that the Tribunal erred in law in finding that the fact that charges had been brought against the applicant and had not yet been resolved either showed the applicant was not of good character, or were otherwise good reason under s 52 of the Security and Related Activities (Control) Act 1966 ("the Act") to refuse the appellant a crowd controller licence under that Act.

3 The relevant facts are of reasonably brief compass. On 19 January 2005 the appellant lodged an application to the respondent for a security officer licence and a crowd controller licence ("the licence application"). Annexed to the licence application was a copy of the National Police Certificate which certified that, as at 13 September 2004, the appellant did not appear on the disclosable court history records of any Australian Police Jurisdiction. Put simply, the Certificate stated that the appellant had no criminal record. The application form did not require the appellant to disclose pending charges. In addition to the prescribed information, the licence application was accompanied by testimonials as to the appellant's character.

4 The relevant portion of s 52 of the Act, which relates to the issue of licences, provides that a licensing officer "is not to issue a licence unless the officer is satisfied" of specified matters, including:

"(c) that the applicant is of good character and is a fit and proper person to hold a licence; ... and

(k) that there is no other good reason why the licence should not be issued."

5 By letter dated 2 February 2005 the appellant was advised that the respondent's decision not to issue either a security officer licence or a crowd controller licence. The basis of the decision was stated to be "Outstanding charges".

6 On 16 February 2005 the appellant lodged an application with the Tribunal for review of the respondent's decision on grounds which it is unnecessary to reproduce in full in these Reasons ("the application for review"). In essence the grounds for review concerned whether an appellant, who had otherwise met all requirements for obtaining the relevant licences, should be denied the grant of the licences on the sole ground that he had outstanding criminal charges against him. Because of the nature of the Tribunal's decision to which I will shortly refer, it is relevant to consider the different duties of a crowd controller and a security officer. Section 12(1) of the Act defines a security officer as a person who for remuneration watches, guards or protects any property. Section 35(1) of the Act defines a crowd controller as a person who in respect of any licensed premises, place of entertainment, or public or private event or function, as part of his or her regular duties, performs for remuneration any function of -

"(a) controlling or monitoring the behaviour of persons;

(b) screening persons seeking entry; or

(c) removing person for behavioural reasons,

7 The review application before the Tribunal was subject to the State Administrative Tribunal Act 2004 ("the SAT Act"), in particular to s 27(1) which states that the review of a reviewable decision is to be by way of a hearing de novo. As such the Tribunal is not confined to matters that were before the decision-maker and may involve consideration of new material whether or not it existed at the time the decision was made. However, on this review, the same materials were relied upon by the Tribunal and the same issue fell for consideration. According to s 27(2) the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. As to the practice and procedures of the Tribunal conducting the review, the Tribunal is bound by the rules of natural justice: see s 32(1) which also refers to a departure from these rules in circumstances not relevant to this appeal. Significantly, in view of the principal issue for resolution on this appeal, the Evidence Act 1906 does not apply to the Tribunal's proceedings: s 32(2). Nor is the Tribunal bound by the rules of evidence or any practices or procedures applicable to courts of records, except to the extent that it adopts those rules, practices or procedures or the regulations or rules make them apply: s 32(2)(a). The Tribunal is required to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: s 32(2)(b). The SAT Act also provides that the Tribunal may inform itself on any matter as it sees fit: s 32(4).

8 The application for review was heard by the Tribunal on 19 April 2005. The only person who gave evidence at the hearing was the appellant who confined his evidence to general matters relating to the application. All other evidence was documentary. The appellant presented to the Tribunal three character testimonials which he had annexed to the licence application and the National Police Certificate which confirmed the absence of convictions. The respondent filed and relied upon only one document, an affidavit sworn by Peggy Sylvia Coulthard on 4 April 2005 in support of the respondent's decision to refuse the licence application. Ms Coulthard deposed to the fact that at the time of the licence application the appellant had seven outstanding charges against him for indecently dealing with a child who was a lineal/de facto relative and three outstanding charges against him for sexually penetrating a child who was a lineal/de facto relative. Ms Coulthard further deposed to the fact that she viewed the Statement of Material Facts in relation to the charges. The Statement of Material Facts, which was annexed to the affidavit, set out the detail of the allegations against the appellant including the fact that the complainant was 12 years of age at the time of the alleged offences and was the daughter of the appellant's de facto wife. Those charges were brought against the appellant on 24 February 2004. Ms Coulthard stated in her affidavit that, having viewed the Statement of Material Facts, she was not satisfied that the applicant was of good character and a fit and proper person to hold the licences for which he had applied. No other reason was given for failing to be so satisfied.

9 At the hearing, the Tribunal considered the respondent's submission that the public interest requires that the licensing authority protect the public against a person who may abuse his position of trust and authority when working as a crowd controller or a security officer. It was further submitted that, in exercising her discretion, the licensing officer was not limited to information contained in the applicant's criminal record and could also take account other information that may reflect on or have a bearing on the applicant's character, such as outstanding charges. The contrary proposition for consideration was the appellant's submission that unproven charges do not constitute a lawful basis for refusing the licences. Counsel for the applicant contended at the review hearing that if the licences are issued and the applicant is in due course convicted of all or some of the offences, the licensing officer might then consider the revocation of the licences under the Act. Of course, it might be said that the safer course would be to refuse the licence and, if the applicant is acquitted of the offences, to reconsider the licence application or consider a renewed application. The Tribunal's considered that the approach suggested by counsel was not responsible because the Tribunal was obliged to act with caution and with the interest of the public and the ethical standards of the security industry in mind.

10 The Tribunal considered that the question before it could be divided into two parts, namely the admissibility of information contained in the statement of material facts and the letters of reference, and if, such information is admissible, the relevance thereof to s 52 and, in particular, subs (c) and subs (k). In view of the fact that evidence is not admissible unless it is relevant, it would have been preferable to consider the issues in the reverse order. However, in the circumstances, nothing turns on this point.

11 As to the issue of admissibility, the Tribunal noted that there was no indication in the relevant legislation that the legislature intended to limit the discretion of the licensing officer to the applicant's criminal record. To the contrary, the Tribunal considered that it was clear that the legislature intended to empower the licensing officer to look beyond the formal criminal record of an applicant and to take into account other relevant information that may have a bearing on the issuing of a licence. The reasoning behind the Tribunal's ultimate decision can be found in the following extract from the Reasons for Decision:

"The Tribunal recognizes that the applicant is entitled to a presumption of innocence under the general law in respect of the charges laid against him. However, the Tribunal also considers that a presumption of innocence under the general law does not mean the licensing officer or the Tribunal should ignore information laid before it when considering whether the applicant should be licenced for the purpose of crown controller or security officer.

Pending the determination of the matters alleged in criminal proceedings, the licensing officer and the Tribunal on review should adopt a precautionary approach to licensing. Good public administration demands no less. It should not make a decision that may possibly put at risk the public interest that the vocational licensing system is intended to protect."

12 The Tribunal concluded that the information contained in the statement of material facts and the letters of reference were admissible and could therefore be taken into account by the Tribunal in exercising its discretion. However, the Tribunal added that, in determining what weight to attach to the information, it is a relevant consideration that the charges have not been proven and therefore the content of the charges can not be taken as probative fact. The same qualification was said to apply to the letters of reference.

13 The Tribunal then turned to the issue of the relevance of the information of the pending charges in making a decision under s 52 of the Act and concluded that the Tribunal has the discretion to take into account any relevant information that might assist it to come to a decision under s 52(c) and s 52(k): see Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 where the High Court held that the Tribunal was to be given "the widest scope for judgment". According to the Tribunal, "this includes taking into account considerations such as the objectives of the Act, the interests of the public, the nature of the duties that the applicant might be required to discharge, the circumstances in which the duties may be discharged, the criminal record of the applicant, together with outstanding charges against the applicant, the nature thereof, the letters of reference, evidence during the hearing, and any other relevant information that may assist it to make a decision. In other words, the Tribunal was required to "balance factors for or against the view that the respondent satisfied this [s52] requirement": Coulthard v Henker [2003] WASCA 187 at [60] per Barker J.

14 However, the Tribunal further noted that in Collins v Estate Agents Board (1994) 7 VAR 394 the Administrative Appeals Tribunal made it clear (at 399) that the consideration of the Tribunal must be primarily directed towards the protection of the public confidence in, and the professional standards of, the industry that the Act is regulating. In the instant case, the Tribunal construed the meaning of "fit and proper person" to be that the applicant must show that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry, as a person to be entrusted with the sort of work which the licence entails: cf Ex parte Meagher (1919) 19 SR (NSW) 433 (at 422).

15 In this context the Tribunal considered that, although the criminal charges against the applicant were pending, the Tribunal could take them into account especially in light of the nature of the charges and the circumstances in which they were allegedly perpetrated. Although the applicant is presumed innocent, the Tribunal emphasized that it was not required to apply a "beyond reasonable doubt" test in exercising its discretion under s 52.

16 The Tribunal considered that, in addition to having regard to the applicant's "overall character", it was also necessary to consider the requirements of the occupation for which the licence is necessary: Smith v Director-General of Transport [2004] WASCA 64 at [24]. For that reason the Tribunal considered in some detail the respective duties of security officers and crowd controllers and concluded that, although both licences would put the applicant in contact with members of the public, the crowd controller licence would permit more direct and intimate interaction with members of the public. On that basis the Tribunal concluded that a security officer licence may issue to the applicant. However, the application for a crowd controller licence was refused on the following basis:

"In regard to a crowd controller licence, we are constrained not to issue a licence unless we are satisfied that 'the applicant is of good character' and unless we are satisfied that there is 'no other good reason why the licence should not be issued'. We conclude that the outstanding charges against the applicant are of such serious nature and relate so intimately to the duties of a crowd controller that we are not satisfied that a crowd controller licence can be issued under s 52. While the particular criminal charges alleged against the applicant remain unresolved, it is premature to issue a licence as a crowd controller. Although the applicant is entitled to a presumption of innocence in the criminal proceedings, the task of the licensing officer and the Tribunal on review, is to deny a person a licence unless it is 'satisfied' that the applicant complies with statutory requirements. This reflects a community expectation that persons against whom serious matters are alleged, which, if proved, would disqualify them from being licences, should not be licensed until the question has been resolved. To issue a crowd controller licence now would be premature and against the public interest."

17 I confess to having some difficulty with the conclusion that a licensing officer could be satisfied, on the same evidence, that the applicant is of good character and is a fit and proper person to hold a security officer licence but could not be satisfied that the applicant was of good character and was a fit and proper person to hold a crowd controller's licence. It seems to me that suitability to deal with the public and to exercise certain powers with respect to members of the public in the course of either type of licence would be affected by evidence of criminal conduct, be it established or alleged. However, as the appellant takes no issue with this apparent conflict, it is unnecessary for me to provide a concluded view on this subject.

18 Section 105 of the SAT Act provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal: s 105(1). Section 105(2) provides that the appeal can only be brought on a question of law. The powers of the Court in dealing with the appeal are set out in s 105(9). In effect, the Court is entitled to make any order the court considers appropriate. As I have indicated, in this case the appellant has been granted leave to appeal to this Court. It will become apparent from a consideration of the ground of appeal that it involves a question of law, however, there was in any event no dispute that a question of law has been raised in this appeal.

19 In effect, the issue for resolution on this appeal is whether an unresolved allegation of the commission of criminal offences is evidence that an applicant is not of good character and is not a fit and proper person for the purpose of licence applications under the Act. The appellant's position is that, even though the Tribunal is not bound by the rules of evidence, it is required to act on evidence which is logically probative. As the evidence put before the Tribunal was not logically probative of character or any other relevant matter, the appellant submits that the decision was arbitrary and vitiated by error of law. In other words, the Tribunal could not reasonably have formed the opinion which it did on the material placed before it.

20 The argument on behalf of the appellant was presented by reference to three limbs. The first limb was said to be that, notwithstanding the terms in which the power to grant licences under the Act are expressed, all licensing decisions in Western Australia are discretionary unless expressed otherwise because of s 51 of the Interpretation Act 1984. Section 51 relevantly provides that where a written law confers power upon a person to issue or grant any licence the person so empowered shall have a discretion to issue or grant such licence. Counsel also referred to the statement of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651 which is in the following terms:

"A determination that the decision-maker is not 'satisfied' that an applicant answers a statutory criterion which must be met before the decision-maker is empowered or obliged to confer a statutory privilege or immunity goes to the jurisdiction of the decision-maker and is reviewable."

21 Reference was also made to R v Connell & Anor; Ex parte The Hetton Bellbird Collieries Ltd & Ors [1944] HCA 42; (1944) 69 CLR 407 which dealt with decisions made by a number of Authorities appointed under the Coal Production (War-time) Act 1944. The Court considered the meaning of the term "satisfied" as it appeared in the legislation and stated (at 430):

"Thus, where the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts."

22 The final decision referred to in this context was Sharp v Wakefield [1891] AC 173 in which the Court dealt with a hearing of an application for the renewal of a license for the sale of intoxicating liquor under various licensing acts. The Court held (at 179):

"An extensive power is confided to the justices in their capacity as justices to be exercised judicially; and 'discretion' means when it is said that something is to be done within the discretion of the authorities that that something is to be done according to the rules of reason and justice, not according to private opinion: Rooke's Case [5 Rep 100, a]; according to law, and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself: Wilson v Rastall [4 T.R. at p.577]"

23 I have no difficulty in concluding that the statutory power conferred on a person to issue or grant a licence involves the exercise by that person of a discretion. Counsel for the appellant further submitted that a criterion of the discretion is satisfaction but it does not mean that the decision-maker can descend into the realms of the arbitrary or fanciful; the matter must be determined according to law and reason. Again, no fault can be found with that general statement of the way in which a discretion is to be exercised.

24 The second limb of the appellant's argument relates to the effect of the statutory statements as to the manner in which the Tribunal may inform itself. In Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 the Court considered s 19 of the Administrative Appeals Tribunal Act, which is in substantially the same terms as s 32 of SAT Act, and concluded that, although the Tribunal is not bound by rules of evidence, the evidence to which it has regard must have rational probative force at 492. As Brennan J observed (at 492):

"The requirement that a person exercising quasi-judicial functions must base his decision on evidence means no more than it must be based upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant ... If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue."

25 Brennan J noted (at 492 - 493) that the same approach was taken by Lord Denning in TA Miller Ltd v Minister of Housing and Local Government [1968] 1 WLR 992 (at 995) in concluding that: "Tribunals are entitled to act on any material which is logically probative, even though it is not evidence in a court of law".

26 In summary, on the appellant's submission, although the test in s 52 of the Act is described in terms of the decision-maker being "satisfied", that conclusion must be based on material which, irrespective of whether it is admissible according to the rules of evidence, must be probative of the matter to be proved. That proposition is consistent with the authorities cited and the respondent does not pursue a contrary proposition

27 The third limb addresses the key issue in this appeal: the relevance and admissibility of evidence of unproven charges on an application for a crowd control licence. During the course of submissions, counsel for the appellant addressed this limb in terms of the probity of the evidence. However, there was at times some confusion as to the issue of which the evidence is said to be probative. At one point the question to be answered was described by counsel as whether the evidence is probative of the issue of whether the person committed the offence? With respect, that is not the issue to which the evidence related. Evidence that a person has been charged with criminal offences might not be probative of whether the person committed those offences; it might not be probative of the more general issue of whether the person is of bad character. However, in my view, the relevant question in this case is whether the evidence is probative of character in circumstances where a decision-making authority is required to be satisfied of good character, an altogether different proposition.

28 In submitting that evidence of pending charges is not probative of any issue to be decided on the licence application, counsel for the appellant relied on R v Roberts; R v Urbanec [2004] VSCA 1; (2004) 9 VR 295 and the cases summarized in that case by Batt J, that is Maxwell v Director of Public Prosecutions [1935] AC 309 and Stirland v Director of Public Prosecutions [1944] AC 315. On the basis of those authorities, counsel for the appellant submitted that the mere fact that a person has been charged cannot, in general, be evidence of bad character as it is no proof that the person committed the offences. Indeed, counsel submits that such evidence is irrelevant and therefore inadmissible.

29 In R v Roberts; R v Urbanec the first and second accused were charged with offences relating to the importation of a commercial quantity of cocaine from overseas into Australia. On the Crown case the first accused was not a mere courier but the principal in the scheme and the leading actor in it. The second accused knew of the intention to import the cocaine and was knowingly concerned in it. The defence of the first accused was that, although he pretended to the second accused that he was going overseas to acquire drugs, he did not purchase any cocaine or import any cocaine into Australia. Rather, the cocaine was delivered to him on his return to Australia by a police witness for the purpose of implicating a co-offender in the importation of a large quantity of cocaine, only for him, the first accused, to find that the police witness reneged on the arrangement. The second accused denied that he was knowingly concerned in the importation even though he was aware of the first accused's intention to import cocaine into Australia.

30 Shortly before the trial commenced, two police witnesses were arrested and charged with drug offences unrelated to the charges against the accused. A summary of evidence prepared by the Corruption Division of the Ethical Standards Department of Victoria Police relating to these two officers was made available to defence counsel. The Victorian Director of Public Prosecutions also made available to defence counsel copies of the charges against one of the officers and a summary of evidence against him and a co-accused prepared as an aid to the prosecutor on a bail application. Both of these officers were convicted of a number of offences subsequent to the trial of the two accused. Defence counsel informed the Judge that he desired to cross-examine the officers about the charges against them and about the matters in the summaries of evidence and to lead evidence of the matters in the summaries. The Judge refused to allow any such cross-examination or independent evidence of corrupt dealings by the officers.

31 Batt JA (with whom Buchanan & Chernov JA agreed) held (at 326) that the mere fact that a person has been charged cannot, in general, be evidence of bad character as it is no proof that the person committed the offence and is therefore irrelevant. Batt JA observed that, in cross-examination as to credit, the question whether the witness has been charged with drug trafficking is irrelevant and should not be asked. The reason given was that the fact that a witness has been charged with the commission of a criminal offence (and even been committed for trial for the offence) is incapable of either impugning or bearing upon the credit of the witness. Indeed, all that the fact that a person has been charged with the commission of a criminal offence evidences is that the informant (or person responsible for laying the charge) is of the belief that the person has committed the offence and, in many cases, that a complainant has alleged, and believes, that the person has committed the offence. To permit cross-examination as to credit in these circumstances would tend to undermine the presumption of innocence. Significantly, Batt JA made specific reference to the fact that the evidence contained in the summaries went only to a collateral fact.

32 In Maxwell v Director of Public Prosecutions a prisoner, charged with manslaughter of a woman by performing upon her an illegal operation, gave evidence of his good character. Thereupon counsel for the prosecution asked him questions about a previous occasion on which he had been tried for manslaughter but acquitted by the jury. The questions were asked under a section of the Criminal Evidence Act 1898 which prohibits the asking and answering of questions tending to show that a person has committed, been convicted of, or been charged with any offence. The proviso to the section permitted questions of this type in certain specific circumstances, one of which was where the witness has given evidence of his good character. The House of Lords held that the questions were not admissible, inasmuch as the fact that the prisoner had been acquitted on a previous charge of manslaughter was not relevant to the issue before the jury and did not tend to impair the credibility of the prisoner as a witness. Viscount Sankey LC with whom Lords Blanesburgh, Atkin, Thankerton and Wright agreed, held (at 319 - 920) that "the mere fact of a charge cannot in general be evidence of bad character or be regarded otherwise than as a misfortune." He also drew the following conclusion (at 320):

"There mere fact that a man has been charged with an offence is no proof that he committed the offence. Such a fact is, therefore, irrelevant; it neither goes to show that the prisoner did the acts for which he is actually being tried nor does it go to his credibility as a witness. Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases, because, if allowed, they are likely to lead the minds of the jury astray into false issues; not merely do they tend to distract the jury from the true issues - namely, whether the prisoner in fact committed the offence on which he is actually standing his trial. It is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined."

33 The final authority on which the appellant relies, although it deals with a different set of circumstances, is Stirland v Director of Public Prosecutions. In that case, the appellant, on trial for forgery, having put his character in issue and asserted in examination in-chief that he had never been "charged" with any offence, was asked in cross-examination questions suggesting that on a previous occasions he had been "questioned about a suggested forgery" by his former employers. The conclusion of the appellate court was that the appellant should have been understood to be asserting that he had never been accused before a criminal court and the questions should have been disallowed as irrelevant and unfair.

34 As the House of Lords observed (at 324): "...how can mere suspicion alleged to have been entertained by his previous employer on an earlier occasion be a legitimate topic for cross-examination to credit?"

35 In the course of reaching its decision, the House of Lords reviewed the relevant cases, including Maxwell v Director of Public Prosecutions. There was consensus on the point that the presiding Judge at a criminal trial has a discretion to disallow questions addressed to the accused in cross-examination if he considers that such questions, having regard to the issues before the jury and the risk of the jury being misled as to what those issues really are, would be unfair to the accused (at 324). The House of Lords also concluded that an unproven accusation proves nothing against the accused and is irrelevant to the issue of good character (at 324).

36 An analysis of Maxwell v Director of Public Prosecutions and R v Roberts; R v Urbanec reveals that those cases are authority for the proposition that, in the context of a criminal trial, evidence of unproven allegations are not evidence of guilt or bad character and nor is the evidence relevant to credit as it would tend to undermine the presumption of innocence. However, despite the submission to the contrary by counsel for the appellant, in my view none of those matters constitute the test for the grant of a licence under the Act. Emphasis was also placed on the fact that the issue to which the evidence was said to relate was collateral and could not be the subject of evidence to the contrary in any event.

37 On one view, Stirland v Director of Public Prosecutions appears to take the restriction on the use of evidence of unproven allegations somewhat further by the comment of Viscount Simon LC (at 324) that the evidence sought to be adduced was not relevant "as going to disprove good character". However, it should be kept in mind that the allegation in Stirland v Director of Public Prosecutions was that the accused had been suspected of forgery, not that he had been charged with forgery and the evidence could not contradict the statement of the accused that he had not been charged with any offence. There is a difference between the proposition that a mere suspicion cannot disprove good character, and is not relevant to that issue, and the proposition that an unresolved criminal charge is irrelevant to the issue of whether a decision-maker can be satisfied of good character. Further, in my view, the decision in Stirland v Director of Public Prosecutions is clearly influenced by the issue of fairness to the accused which would be impaired if the jury were being misled as to the issues which it was required to address and not because the fact of a charge being levelled is not evidence of anything.

38 Curiously, at one point counsel for the appellant suggested that, if a complainant had given evidence of the allegations before the licensing authority or the Tribunal, the position would be different because the appellant would be entitled, on the basis of the requirement of natural justice, to challenge that evidence. For myself, I cannot see the distinction. If it is only the form of the information which creates a bar to it being received into evidence, then the terms of s 32 of the Act would overcome that problem. Indeed, there is nothing in the authorities on which the appellant relies which questions the form of the evidence. I note in passing, that counsel for the appellant also conceded that, if there were admissible evidence before the tribunal that the appellant had committed the offences, then he should not have been granted a licence.

39 Counsel for the respondent submitted that the Act prevents the issue of a licence unless the licensing officer is satisfied that the requirements of s 52 have been met. One of the matters of which the licensing officer has to be persuaded, as a result of s 52(c) is that the applicant is "of good character". Counsel emphasised that it was not necessary to determine that the applicant is of bad character before a licence may be refused. In support of that proposition the respondent, as did the Tribunal, relied upon the decision of the High Court in Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629, in particular the statement of the majority (at 638) that: "The absence of persuasion about a fact in mitigation is not the equivalent of persuasion of the opposite fact in aggravation".

40 The relevant statutory provision in Weininger v The Queen was s 16A(2) of the Crimes Act 1914 (Cth) which required courts sentencing a person convicted of a federal offence to "take into account", in addition to any other matters that might be relevant, a list of specified matters including character and other offences, so far as they were "relevant and known to the court". An accused pleaded guilty to charges including one of being knowingly concerned in the importation of cocaine. At the sentencing hearing a statement of facts was tendered by the prosecution without objection. The statement recorded that the accused had told an informant of the Australian Federal Police that he was involved in a continuing cocaine importation syndicate. The accused had no previous convictions. In her sentencing remarks the Judge said, in substance, that the accused could not be treated as a first offender because of the evidence establishing his previous participation in cocaine importation.

41 The convicted person sought to persuade the sentencing Judge that an absence of prior convictions meant that he should be sentenced on the basis that he had previously been of "good character". The High Court noted that (at 638):

"For the reasons given in Melbourne v The Queen [1999] HCA 32; (1999) 198 CLR 1, there are difficulties in treating 'good character' as a single undifferentiated whole. For present purposes, the 'character' of the appellant had at least two relevant aspects - his absence of previous convictions and whether he had previously engaged in other criminal conduct. No doubt other aspects of his 'character' could have been identified."

42 In effect, the High Court recognised that the sentencing Judge could not be persuaded of the convicted person's good character, without having to positively conclude that he had not previously engaged in conduct similar to that for which he was to be sentenced. The view of the majority (Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ at 638 - 639) that no error had been shown, was expressed in the following terms:

"In this case, the appellant emphasised that he was a person who had not previously been convicted. From that fact, unchallenged as it was, he sought to have the primary judge draw a wider conclusion, namely that he was a person of previously good character or, at least, a person who had not previously engaged in conduct of the kind giving rise to the present charges ... The appellant's out of court assertion that this was a 'one off thing' was tendered to persuade the sentencing judge that he had not previously engaged in drug importation or money laundering."

43 Counsel for the respondent submitted that there was an analogy with the present case because the appellant necessarily sought to have a licensing officer conclude, from the absence of prior convictions, that he was of "good character". The decision in Weininger v The Queen assist in the resolution of this appeal insofar as it draws the distinction between affirmatively proving an aspect of character, be it good or bad character, and raising a doubt which precludes a person from being satisfied of an aspect of character. Counsel for the respondent submitted that the issue raised by the appellant did not need to be resolved by determining whether there was proof of prior criminal conduct. The evidence of pending charges does not substantiate a conclusion that the applicant is of bad character; it raises a serious doubt as to whether the person is of good character.

44 Of course, as I have noted, the decisions to which counsel for the plaintiff has referred could be seen to create some difficulty for the respondent. However, counsel for the respondent distinguished those cases by noting that the relevant context in each of the cases was one in which a capacity to positively establish the commission of the offence charged was a necessary pre-condition; that is, the evidence had to be capable of positively establishing "bad character" before it could become relevant to the proceedings. Counsel also submitted that it was important in the context of this case, which is significantly different to that of the cases on which the appellant relies, not to be distracted by the central tenet of the criminal justice system that an accused person is innocent until proven guilty of the offence.

45 Whilst counsel for the appellant accepts that the other cases relied upon involved cross-examination of an accused person, the case of R v Roberts; R v Urbanec dealt with the issue of whether crown witnesses could be cross-examined as to credit on the basis that they had been charged and hence is not explicable by reference to the presumption of innocence "or introducing factors which might deflect a jury from the proper question". I accept the proposition that the decision cannot be explained on the basis of the presumption of innocence. However, I do not accept that the decision is unaffected by a concern that the jury might deliberate on the culpability of the witness rather than the accused.

46 I am persuaded by the respondent's proposition that, in view of the purpose of the Act and the nature of the licences regulated by the Act, a licensing officer was intended by Parliament to have regard to any matter which might be capable of raising a doubt as to the existence of the necessary 'good character'. The grant of any of the licences under the Act confers on the applicant a privilege; the statutory provisions do not establish pre-conditions to the exercise of a right. Including as it does the conferral of powers affecting the rights of members of the public, awaiting the resolution of charges rather than granting a licence pending the outcome of the charges is an interpretation of the section consistent with the legislative intention and in accordance with the public interest which, as the Tribunal observed, includes public confidence in the security industry.

47 I accept counsel's submission that it is clear that the Act's licensing context is very different from the context of criminal proceedings. However, I do not accept the basis of that distinction being the protection of the public being the primary concern in the former context and the protection of the accused person's interests in the latter context. I also have some difficulty with the assertion that the Statement of Material Facts established that a complaint had been made and that someone had made a judgment that there was a prima facie case with reasonable prospects of conviction so that the matter should proceed in the courts. However, on the available evidence there was no indication that the matter had reached the stage where an indictment would be prepared and consideration of the DPP's guidelines would take place, including consideration of whether there were reasonable prospects of conviction. On that basis, at most the evidence supports a conclusion that a complaint had been made of a series of sexual offences and, as charges had been laid, a police officer considered that there was prima facie evidence in relation to each of the offences. I don't believe the documentation is capable of sustaining any further inference nor, in my view, is it necessary that it does so before it could be relied upon and before it could create a doubt as to whether the appellant is of "good character". Indeed, in my view, providing the evidence was admissible in its form, the fact that an allegation had been made which was not self-evidently unsustainable, is sufficient to adversely impact on the licensing officers satisfaction as to the appellant's good character.

48 Accepting as I do the respondent's interpretation of the scope and purpose of the relevant section of the Act, to draw a conclusion that the evidence of unresolved charges is irrelevant and inadmissible I would have to be persuaded that the authorities on which counsel for the appellant relies compel that conclusion. For the reasons to which I have alluded in considering those authorities and the reasons put forward on behalf of the respondent, I consider that the vastly different type of proceeding is a valid basis on which to distinguish the cases to which the appellant has referred.

49 In the absence of any binding or compelling authority that evidence of unresolved criminal charges is irrelevant to satisfaction as to good character on a licence application and such evidence is therefore inadmissible, I consider that the pending charges, evidenced by tendering the Statement of Material Facts, are relevant and admissible and cast sufficient doubt to make a conclusion of good character something that cannot be reached.

50 The appellant having failed to persuade me of any error on the part of the Tribunal in reaching the conclusion that it did, I would dismiss the appeal.