REVIEW APPLICATION - SECURITY PROVIDER - where incident at security provider's workplace - where criminal charges not proceeded with - where department cancelled licence - where controller deal with an intoxicated and aggressive man over a long period after exclusion from a venue - where patron was becoming verbally abusive and verbal threats were made where no sound recording available - where controller thought he was to be assaulted and acted in pre-emptive self defence - where independent observer also thought controller was to be assaulted - where controller had no previous infringements despite a number of years in the industry - where numerous references supported him as a highly regarded crowd controller

Queensland Civil and Administrative Tribunal Act 2009, ss 20, 24

Security Providers Act 1993, s 21

Kehl v Board of Professional Engineers of Queensland (2010) QCATA 58

Black v Chief Executive, Department of Employment, Economic Development and Innovation [2011] QCAT 27

Mr P Reinhold appeared for the Chief Executive, Department of Justice and Attorney-General

[1] Mr Joseph Harley's Crowd Controller Licence number 3465483 was cancelled by a delegate of the Chief Executive of Department of Justice and Attorney-General Industry Licensing Unit on 11 July 2012.

[2] The Chief Executive considered Mr Harley no longer an appropriate person to hold a licence under the Security Providers Act 1993. This decision was based on an incident which occurred at the Down Under Bar on 13 October 2011, when Mr Harley struck a male person (the patron), elbowed his associate and then took the patron to the ground, sitting on him to restrain him till police arrived.

[3] Mr Harley has applied to the Tribunal to review the cancellation decision. A stay of the cancellation decision pending this review hearing was granted with conditions on 24 August 2012.

[4] The evidence before me today includes the CCTV footage from the venue and from the Brisbane City Council city safe camera, Mr Harley's own account of the events of the night given in direct evidence while watching the CCTV footage, statements from other crowd controllers who witnessed the event or were in the venue on the night and a number of references supporting Mr Harley.

[5] The CCTV footage from the venue's camera is substantially longer and shows the interaction between Mr Harley and the patron over the course of the evening for a longer period than the CCTV footage provided from a Brisbane City Council camera which shows a much shorter period leading up to and including the incident. There is no sound in any footage.

[6] Mr Harley's evidence is as follows:

1. he was confronted by an aggressive male patron who caused issues for security and other patrons for 40 minutes prior to the incident, after his companion was refused re-entry and then continuing after the patron was also refused re-entry to the venue;

2. the police were called on two occasions to request their attendance at the venue while he trying to resolve the situation peacefully through discussion;

3. the patron asked to speak to the manager of the venue and he facilitated this;

4. the manager agreed the patron should not re-enter;

5. Mr Harley adopted postures showing he did not want a physical confrontation;

6. the patron informed Mr Harley that he was a nightclub owner in NSW and a "golden gloves" boxer and that he was going to "take him out";

7. Mr Harley understood this to mean that the patron had a high level of boxing prowess;

8. he was aggressively threatened with verbal threats of physical violence by the alleged victim who placed himself within inches of Mr Harley's face during the incident and threatened to kill him;

9. Mr Harley believed he was about to be severely physically assaulted by the patron whom he believed had the boxing ability to "put him in hospital";

10. Mr Harley acted pre-emptively to defend himself, and then restrained the person on the ground until the police arrived.

[7] Criminal charges were brought against Mr Harley. At the trial, the prosecution offered no evidence and the Magistrate dismissed the charges.

[8] The purpose of the review is for the Tribunal to produce the correct and preferable decision. To achieve this, the Tribunal must conduct a fresh hearing on the merits[1]. In considering the matter afresh, it is the Tribunal's function to review the decision and not the process by which it was arrived at nor the reasons for it. The Tribunal is not required to identify any error in either the process or reasoning that lead to the decision being made. There is no presumption the original decision is correct.[2]

[9] Section 11 of the Security Providers Act 1993 stipulates the matters that must be considered in deciding whether a person is an appropriate person to hold a licence. This section limits consideration to subsections 11(3) and (4). The parties agreed that the relevant subsections of section 11 were subsections (f) and (g).

[10] The Department submits that the environment in which Mr Harley was working is extremely challenging. Crowd controllers are subject every night to various forms of verbal abuse and often threats of physical aggression. Sometimes there are death threats. This night was no different and Mr Harley with his experience and training, is expected to deal with all of this in a calm, non-confrontational manner effectively taking care of patrons who cannot take care of themselves.

[11] The Department submits that Mr Harley's actions must be assessed in this light. Crowd controllers must act with absolute restraint to avoid direct physical interaction with patrons and be of high integrity. In the Department's view, this was an ordinary night with ordinary threats and Mr Harley's reaction in striking the patron was disproportionate to the threat.

[12] The Department submits the CCTV footage shows an unprovoked attack by Mr Harley saying the Brisbane City Council CCTV footage is evidence that there appears to be little in the way of provocation or threat posture by the patron to excuse Mr Harley's actions. Further, it is reasonable to assume that both the patron and innocent bystanders were in immediate risk of serious injury as a result of the incident.

[13] Not all of this however was directly put to Mr Harley in cross-examination. Mr Harley was asked about verbal abuse and previous physical assaults occasioned to him. It was not put directly to Mr Harley that death threats were a normal occurrence or that really; this was just an ordinary "night at the office" for a crowd controller.

[14] Neither did the Department bring any independent evidence to support its submission that threats of this extreme kind are commonplace in this environment and not at all out of the ordinary and that Mr Harley's reaction in striking the patron was therefore disproportionate.

[15] The loss of his licence is a serious matter for Mr Harley. It represents his livelihood. In line with the importance of the decision, I must be comfortably satisfied on the evidence before me of any fact upon which the law is applied. The more important the issue, the higher the standard of proof required[3].

[16] Further, without the Department's view of the circumstances being put to Mr Harley when the opportunity arose during cross-examination, I also cannot place any weight on submissions on fact when these potential facts are raised for the first time after the evidence is closed, having not been put to Mr Harley during evidence. Mr Harley was not given a chance to respond to this interpretation of the circumstances and I cannot know what his view about this would have been. This need to put adverse material to a witness is the requirement of natural justice embodied in the rule in Browne v Dunn[4].

[17] The Department further asks me to take notice of extrinsic material to the legislation such as the second reading speech on the introduction of the Bill to Parliament and when amended in 2007 and community expectations contained in published articles and newspapers to apply the particular subsection of this legislation involved in this matter.

[18] The use of extrinsic material when applying legislation is not open to me under the Acts Interpretation Act 1954[5] unless the provision is ambiguous or obscure. This is also the position under the general rule of statutory interpretation[6]. I do not consider the legislation to be ambiguous or obscure.

[19] The licensing of security providers through the Security Providers Act 1993 is intended to ensure that only appropriate persons hold security licences including crowd controller licences. This protects public safety and is in the public interest.

[20] Section 21(1) of the Security Providers Act 1993 sets out the grounds under which a licence may be cancelled. In particular, subsection (g) allows that the licence may be cancelled if the licence holder is no longer an appropriate person. This is the ground under which the Department made its decision to initially cancel Mr Harley's licence.

[21] Sections 11(4) (f) and (g) say that a person is not an appropriate person to hold a licence if investigating information about the person in relation to a disqualifying offence indicates the person is either (or both) a risk to public safety or that the holding of a licence by the person would be contrary to the public interest based either based on investigating information or any other information.

[22] "Public safety" can be taken on its ordinary plain meaning and will be determined on the facts of the particular matter.

[23] The interaction between Mr Harley and the patron was not short on the night. The CCTV footage shows it covered a period of about 40 minutes while the patron and his associate were trying to re-gain entry to the venue. In the normal course of a night's work on the door of a busy venue, this would seem to be a lengthy period. Mr Harley's evidence was that this length of interaction was unusual and the patron and his associate were clearly keen to re-enter. Mr Harley's decision to refuse them entry was supported by the venue manager.

[24] The patron became more and more agitated as the period wore on. Finally in the last event, the patron moves in very close to Mr Harley and Mr Harley talks to him further. The patron moves in very close again. Mr Harley then appears to strike the patron and when his associate moves in, seemingly to intervene, strikes the associate, sending him in a direction away from the patron. At this point, the patron is an area where there were no other patrons in his immediate space. The patron is forced to the ground and restrained with Mr Harley's leg and by sitting on him until the police arrive. What is missing from all the footage is sound.

[25] Mr Harley gave direct evidence as to what was said to him by the patron and his strong beliefs as to the effects of these words. He says he thought he was to be assaulted by a patron who was capable of seriously hurting him because of this boxing prowess and therefore he acted in pre-emptive self defence. I have no reason to not accept his evidence as truthful.

[26] His co-worker, Siaki Togiapahiva was of the same opinion, as he witnessed the incident. Mr Togiapahiva was the head security guard at the venue with substantial experience in the industry. I place weight on this independent observation by another experienced security guard. Mr Togiapahiva attended the hearing and was available for cross-examination by the Department but was not called. His views on the usual nature of death threats in the ordinary work of a crowd controller might have been useful but were not made available to me.

[27] The patron had been persistent for a long period seeking re-entry for first his friend and then for both of them. He had called 000 over a minor refusal on a night out which discloses some indication of his level of intoxication. I accept that it is likely that, some 40 minutes from the first refusal that the patron was becoming verbally abusive and that threats were made. With hindsight, perhaps the police should have been called earlier to move the patron on, particularly when there is a necessary response time between the request and the arrival of the police. However, as the saying goes, hindsight is a wonderful thing.

[28] When looked as a whole, it appears from the evidence before me that the patron had been causing difficulties for security from the beginning of the 40 minutes and as soon as he and his associate were refused re-entry to the venue. He remained around the door arguing for re-entry. He blocked the exit for other patrons. He had at least one interaction aggressively with another person standing in line. With his level of intoxication, an argument with another person entering or waiting to enter or leaving the venue was reasonably likely the longer he stayed there and the more agitated he became.

[29] At the very time of the incident, the patron moved in very close to Mr Harley on two occasions before Mr Harley acted. Words were exchanged and the patron was clearly agitated by his body posture. The actions taken by Mr Harley only involved the patron and his associate when he attempted to aid the patron, his associate being pushed away while Mr Harley manoeuvred the patron away from the door and into a space where no other persons were standing. I have accepted Mr Harley's evidence of the actual threats made.

[30] Mr Harley submits his actions were pre-emptive and in self-defence because he was faced with imminent assault by an intoxicated and aggressive man who was verbally and physically threatening him and whom he believed could seriously hurt him. He submits that a pre-emptive strike in self-defence is a lawful assault as recognised in criminal law[7].

[31] Mr Harley says the determination as to whether he is a risk to public safety can be judged on his these actions and his antecedents, supported by the references he has supplied.

[32] It is in the interests of public safety that an intoxicated, aggressive patron be controlled. This particular patron had already had one incident with another person standing in the line waiting to go into the venue when the other person had suggested that the patron move on from the venue. Mr Harley had to step between them to control a further altercation.

[33] Mr Harley is 24 years of age and has no criminal history. He has been employed as a crowd controller for four years. He provides both character and employment references which speak of his ability to build rapport with customers, and to perform to a high level in conflict resolution and negotiation.

[34] The Department submits that Mr Harley is not appropriate because Mr Harley's reaction in striking the patron was disproportionate to the threat and that threats of this extreme kind are commonplace in this environment and not at all out of the ordinary. For the evidentiary reasons I have stated above, I cannot place any weight on these submissions.

[35] The QCAT learned senior member in a 2010 weapons decision[8] spoke on the meaning of "public interest" saying

In particular, in Smith[9] it was held that the public interest embraced matters, among others, of standards of human conduct and of the function of government and government's accepted and acknowledged standards to be for the good order of society against the well being of its members. The interest is therefore the interest of the public and is distinct from the interests of the individual or individuals. This is undoubtedly correct and for the purposes of this decision it is adopted.

[36] I respectfully also adopt this as correct.

[37] There is only one other decided case in the security area - that being Black v Chief Executive, Department of Employment, Economic Development and Innovation[10] which gives me some assistance. In this matter the learned member commented that while it is in the public interest for security providers to control their actions to prevent harm to patrons, it is inevitable that from time to time they are likely to be confronted with situations in which they are physically and verbally threatened and assaulted.

[38] Although Mr Harley gave evidence that he has been verbally abused and physically assaulted in the past, there is no evidence before me to show that Mr Harley has been involved in any other incidents in relation to a disqualifying offence and he has a number of years now working in the industry. I am sure that this incident has been of sobering concern to him.

[39] Mr Harley has provided a suite of references that show him to be thought of highly by other members of the industry. This is the first time he has come to the attention of the Department. The police did not pursue the criminal matter. His perception of his own personal safety was supported by the independent observations of his co-worker upon whose evidence, as an experienced crown controller, I place weight.

[40] I am not satisfied on the evidence upon which I can rely, that Mr Harley is a risk to public safety or that it is in the public interest that he not be a crowd controller.

[41] Section 24 of the QCAT Act sets out the function of the tribunal on review. Section 24(1) allows the Tribunal to confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration to the decision maker with directions if appropriate.

[42] Having the advantage of factual evidence and submissions from both parties, I am satisfied in this matter it is appropriate for this Tribunal to set aside the decision and substitute my own.

[43] On the facts as I have found them and having applied the provisions of the Security Providers Act 1993, I am satisfied Mr Harley remains an appropriate person to hold a crowd controller licence and will order that the decision of the Department of Justice and Attorney-General to cancel the crowd controller licence of Mr Harley dated 11 July 2012 is set aside and that Mr Harley's licence number 3465483 is forthwith re-instated.

[2] Kehl v Board of Professional Engineers of Queensland (2010) QCATA 58 at para 9.

[3] The principle enunciated by the High Court in the seminal decision of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 where the Court stated the quality of evidence and level of persuasion required to meet that standard varies depending on the seriousness or inherent unlikelihood of the allegation and/or the gravity of the consequences for a particular party.

[4] An English House of Lords decision (1893) 6 R 67.

[5] Acts Interpretation Act 1954, s 14B.

[6] Re Boulton; ex parte Bean [1987] HCA 12; (1987) 162 CLR 514 at 517.

[7] Reliance is placed on Beckford v R [1987] UKPC 1; [1987] 3 All ER 425, 431; R v Lawrie [1986] 2 Qd R 502, 505.

[8] Pollock v Queensland Police Service Weapons Licensing Branch [2010] QCAT 077 at paragraph 23.

[9] [1991] VicRp 5; (1991) 1 VR 51 at 63.

[10] [2011] QCAT 27.