Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWCA 56 | Case summary

REASONS FOR DECISION 1 The appellant, Mr Kazel Ibrahim, is a former security guard, who once held a Class 1AC (crowd controller) licence under the Security Industry Act 1997 (SI Act). The Commissioner, as administrator, revoked his licence on 25 July 2008. The licence was due to expire in any event on 7 September 2008. In April 2009, he applied for a new licence. The Commissioner refused the application on two grounds (mandatory disqualification, the public interest). Mr Ibrahim applied to the Tribunal for review. The Tribunal affirmed the decision: Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245. 2 Mr Ibrahim now appeals, submitting that the Tribunal made various errors of law, and seeks the leave of the Appeal Panel to extend the appeal to the merits (see Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113). Background 3 On 15 July 2008 the police charged Mr Ibrahim with assault occasioning actual bodily harm, affray and reckless wounding. The charges arose out of an incident on 15 June 2008 at the Plantation Hotel, Coffs Harbour. Mr Ibrahim had been on duty as a security guard. He inflicted injuries on a patron in the course of removing him from the hotel. On 7 April 2009 at Coffs Harbour Local Court, the more serious charges were withdrawn and replaced with a charge of common assault, to which Mr Ibrahim pleaded guilty. The Court found him guilty of that offence. No conviction was recorded. He was placed on a bond under s 10 of the Crimes (Sentencing Procedures) Act 1999 ('section 10 bond') to be of good behaviour for a period of 12 months. 4 He then applied for re-issue of his licence. As noted above, the Commissioner refused the application, affirmed by the Tribunal on review. 5 We will not in these reasons recapitulate in any detail the reasoning of the Tribunal below. Submissions 6 The parties made detailed written submissions on these issues to the Tribunal below, and again on appeal. The parties have also filed extensive factual material. On the police side, it has included police fact sheets and the witness statements collected by the police plus photographs of the injuries to the hotel patron. On the appellant's side, it has included extracts from the Local Court proceedings, and testimonials. The Appeal 7 The appellant raises three questions of law. He also applies for leave to extend to the merits on three grounds referring to similar matters to those raised by the questions of law. Mandatory Disqualification 8 The appeal begins by challenging the Tribunal's conclusion that the mandatory disqualification provisions are applicable to this case. 9 The relevant provisions are s 16(1)(b) of the SI Act and s 18(c)(ii) of the Security Industry Regulation 2007 (SIR). They read together relevantly as follows: [SI Act s 16] The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: [(1)(b)] has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of - [SIR cl 18(c)] An offence under the law of any Australian or overseas jurisdiction involving assault of any description, being: … [(ii)] in any cases where the applicant concerned has been found guilty but not been convicted - an offence that, in the opinion of the Commissioner, is a serious assault offence. Questions of Law 10 One, it is said that a person found guilty of common assault but not convicted can not be guilty of a 'serious assault offence'. Two, it is said that the Tribunal, and in turn the Commissioner, erred by taking into account evidence of the physical injuries of the victim in characterising the offence as 'serious'. The submission is that the finding of the Local Court necessarily involved an acceptance that the appellant had not caused any actual bodily harm. Fact Finding with an Evaluative Element 11 The first contest is over the Tribunal's decision that the appellant committed a 'serious' assault offence. 12 In the decision below, the Tribunal adopted the approach approved for cases of this kind suggested by the Appeal Panel in Commissioner of Police, New South Wales Police Service -v- Krzeminski [2002] NSWADTAP 3 at para [16]: 'The word "serious" is an ordinary word and its meaning is a question of fact. However, the scope of the matters that can be taken into account in determining whether a particular offence is a "serious assault offence" involves the effect or construction of this phrase. That is a question of law. Consequently the interpretation of the phrase involves both questions of fact and questions of law.' 13 In Krzeminski at first instance, the Tribunal member had seen the assessment of whether the offence was 'serious' as permitting consideration of a wide range of factors starting with the material relating to the offence before the court and extending to plea material. The Appeal Panel held that the Tribunal member had been in error. It described the error as one of statutory construction. It went on to explain that a proper statutory construction of the word 'serious' would have regard to the requirement on the Local Court under s 10 to consider certain factors before deciding to make a finding, including triviality. It expressed the view that a Local Court finding of guilt militated against any finding that such an offence was not serious. In addition, it said, at [32] that consideration could not be given to 'factors other than the nature of the offence itself'. 14 In our respectful view, the Appeal Panel's approach does not reflect, accurately, the nature of the legal standard that bears on the determination of 'serious' in cases of this type. The task is not one of statutory construction in any conventional sense. The particular matters to which the Local Court is required to refer have no binding or limiting effect. 15 The word 'serious' has no special meaning. There is no need to apply principles of statutory construction, beyond the obvious one that the meaning of words, whether in common speech or in statutes, is informed by the context in which they are used. Johnson J observed in R (Cth) v Petroulias (No 5) [2006] NSWSC 1155 at [35], in connection with a Commonwealth law referring to 'serious fraud', that the word 'serious': 'should be given its ordinary meaning. It is a word which by its very nature imports a sense of degree and probably imports a range …' 16 Accordingly, the determination of whether a matter is 'serious' is essentially a factual one, to which, in our opinion for the reasons which follow, the legal boundaries applicable to the making of findings of fact apply. 17 Appellate courts have, historically, drawn a distinction as to the legal standards that apply to the exercise of statutory or judicial discretions and those that apply to fact-finding where the fact to be found has a sense of degree and imports a range. To the first category apply the principles of House v R [1936] HCA 40; (1936) 55 CLR 499 at 505-6. To the second category apply the narrower requirements of Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531. In the latter case, legal error only arises if the finding, to use words found in the cases, is 'plainly wrong', 'wholly erroneous' or 'patently unsustainable'. Whereas the House v R principles go further, and ask whether proper regard has been given to relevant considerations, and no regard has been given to irrelevant considerations and suchlike. 18 The body of case-law that surrounds appellate interventions into findings going to adjectival expressions such as 'serious' or 'extreme' contains detailed discussion of which test is applicable. In Victoria, see the Full Bench decision in Mobilio v Baliotis [1998] 3 VR 833 and a line of cases that have followed, where the narrow Warren v Coombes standard is applied to trial level findings as to whether an injury is 'serious' under accident compensation laws. For discussion of the difference between the two approaches in New South Wales, see Spigelman CJ in Perpetual Trustee Company Ltd v Khoshaba (Khoshaba) [2006] NSWCA 41 at [35]-[39]; and, more recently, Certain Lloyds Underwriters v Giannopoulos [2009] NSWCA 56 per Campbell JA (Ipp and Giles JJA agreeing) at [91] ff. 19 In our view the determination in this legislative scheme of whether an assault offence is a 'serious' one requires a finding of fact, which can only be challenged for legal error if it is plainly wrong or patently unsustainable. 20 In many cases, whether the House v R standard or the Warren v Coombes standard is applied the result will be the same. Spigelman CJ observed at [40] in Khoshaba: 40 Where, as here, the first statutory step is clearly a finding of fact, albeit one involving a broadly based value judgment, it may be that the Court should invoke the principles reflected in Warren v Coombes (1979) 142 CLR 531 rather than in House v The King . Nevertheless, in most cases it is unlikely that the different tests will lead to different results. Relevant Material 21 The second contest is over the effect of the Local Court's finding on what material can be considered. Like the administrator whose decision is being reviewed, the Tribunal is to proceed on the basis of all relevant material. Under s 63 of the ADT Act, the Tribunal must seek to make the 'correct and preferable decision' having regard to that material including material that may have come into existence since the making of the decision or, though relevant, was overlooked by the administrator or not known to the administrator. See generally Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; (1979) 24 ALR 577. 22 In Krzeminski, the Appeal Panel also said: 32 … In assessing whether the offence is "serious" the Tribunal must confine itself to the material which was before the decision maker [i.e. the Court] when hearing the case. It is not the Tribunal's role to re-hear the criminal charges or to take any fresh evidence into account. 23 As noted earlier, the original charges and witness statements had led to the laying of more serious charges including assault occasioning actual bodily harm. The appellant's submission is that the administrator and the Tribunal on review should treat the offence as found, common assault, as one which necessarily did not involve any finding of actual bodily harm. It was therefore, for that reason, at the lower end of the range of assault offences and should have been seen as not 'serious'. The appellant should therefore, it is said, have excluded from consideration the material that formed part of the police brief and was tendered in court, despite what is said in Krzeminski. 24 Were the appellant's submission to be accepted, the administrator would simply be left to use a grid which divided offences against the person into those that are, free of their particulars, serious (all those above common assault) and others that are not serious (common assault and below). 25 It is commonly the case that guilty pleas are made against the background of more serious charges not being pressed. 26 In our view it was open for the Tribunal to examine the entirety of the police brief, and the reasons of the magistrate, in forming a view as to the seriousness of the offence. This is a legislative scheme that licences people to engage in physical contact with members of the public in the interests of preserving public order. The appellant was licensed in crowd control. The material was relevant to the 'seriousness' of the offence. There is nothing in our view that could be said to be plainly wrong (or to infringe the House v R principles if they are applicable) in taking into account the material put before the court that bore on the nature of the physical interaction between the appellant and the hotel patron. 27 We agree that the decision maker should have regard to material relevant to the offence as distinct from material extraneous to that task (for example material that bears only on disposition such as testimonials going to character). As we see it, this is how the matter was approached on remittal to the Tribunal below (differently constituted) (Krzeminski v Commissioner of Police, New South Wales Police Service (No. 2) [2003] NSWADT 8 at [34]-[35]), and how the Appeal Panel ruling has been applied since in the Tribunal. 28 The Tribunal in Krzeminski No. 2 went on, as we see it, to deal appropriately with the evaluative judgement that was required of it. It said at [46]: 46 In the Tribunal's view it is conceivable that a common assault offence could fall anywhere along a continuum ranging from a trivial common assault offence to an extremely serious common assault offence (although to a victim any assault they have been subjected to might not be considered trivial, objectively viewed it may be so). Accordingly not all common assault offences are necessarily serious. A common assault offence may be considered 'trivial' or 'serious' to one degree or another depending on the factors present in the commission of the offence. In addition to the effect the assault has on its victim/s, some other factors might include: the vulnerability of the victim; the voluntariness or not of the offender's conduct; what is actually said or intimated by the offender; the offender's tone and volume of voice and the offender's appearance and bodily actions or gestures and the apparent degree of control or calm in the offender (his or her intensity and demeanour); the use or not of bodily force; the presence or not of weapon/s held by offender or victim; the nature and dangerousness of such weapon/s and the use, if any, that is made of such weapon/s. These factors are each capable of reasonably objective observation and an incident's triviality or seriousness may result from the presence of one factor or an aggregation of such factors. Public Interest Discretion 29 The relevant provision is s 15(3) of the SI Act which provides: (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. 30 The Commissioner based this decision on the same underlying material. In addition the Commissioner referred to the public safety objectives of security industry licensing. The Tribunal affirmed the Commissioner's decision. Question of Law 31 This is an administrative discretion which is governed by the usual administrative law principles relating to relevant considerations and the like. The question of law, as formulated, does not allege any miscarriage in respect of the considerations taken into account. It puts the error of law a different way. 32 It is asserted that a rule of statutory interpretation precluded consideration of certain matters. The rule is the one known as generalia specialibus non derogant (general things do not derogate from special things). The argument is: Parliament made specific provision in s 16 of the SI Act as to the grounds for mandatory refusal; therefore matters addressed there cannot be taken into account when exercising the s 15 (public interest) discretion. It continues: if a licensee is to be refused a licence on public interest grounds, the grounds must be different from the grounds that would constitute disqualifying grounds under s 16(1)(b). There must be separate circumstances not relating to the offence of common assault. In this case there are no separate circumstances. We agree that there are no separate circumstances relied upon. 33 In our view there is no substance to this submission. The security industry licensing scheme is typical of many licensing schemes with which the Tribunal deals. The administrator is given a variety of grounds upon which to refuse to grant licences, impose conditions or withdraw the licences by cancellation, suspension or revocation. The material relevant to the exercise of one ground of refusal may be relevant to another ground of refusal. It depends on the nature of the ground. Sometimes the grounds of refusal are connected with simple matters such as the prescribed eligibility requirements (for example, age, citizenship, educational qualifications or experience). Obviously a ground of refusal based on one of those matters could only have regard to material relevant to that ground. 34 The difference here is that the ground is one expressed in terms of great breadth, 'the public interest'. As to the width of this expression, see further the Tribunal's reasons at [44]-[48]. There is nothing in the scheme of the Act to suggest that a matter that might be the subject of a specific ground for refusal (here the mandatory disqualification provisions) limits the administrator in relying on an all-encompassing ground such as the public interest. Often Commissioner decisions involving the mandatory disqualification provisions confine themselves to that ground. But that does not preclude the Commissioner from referring to any other broader ground that might be applicable. 35 The Act provides no foundation for the submission that the generality of the 'public interest' is to be read as excluding from view the particular matters going to the seriousness of the offence considered first under the mandatory disqualification heading. Leave to Extend to the Merits 36 Given our finding that there was no misapplication of the mandatory disqualification provision, the application for leave to extend to the merits can only remain alive in relation to the discretionary (public interest) discretion. The Tribunal is bound to uphold a correct mandatory disqualification decision, and has no residual power of its own. The same limitation applies to the Appeal Panel. See generally, Bourke v Commissioner of Police [1998] NSWADT 1. 37 As to the way the Tribunal handled the matter at first instance, the appellant's submission is that the Tribunal should not have gone on to consider the public interest ground; and nor should the Appeal Panel if, as it now has, it upholds the disqualification. He seeks an extension to the merits at least to achieve that narrowing of the grounds for decision. 38 Obviously, an adverse public interest finding is damaging to the reputation of a licence applicant in a way that a mandatory disqualification finding is not. The appellant's submission is that this was an isolated incident with mitigating circumstances on the part of a person with an otherwise unblemished record. 39 While it is not necessary to demonstrate an error of law to found an application for leave to extend to the merits, the failure to demonstrate an error of law is a factor that weighs in the balance against extending leave. As already noted, we do not consider that the Tribunal's consideration of the public interest was affected by any error of law. 40 We are not disposed to reopen the matter for the purpose suggested. It was open to the Commissioner to base his decision on both grounds. It was open to the Tribunal to review the decision in its entirety. 41 In response to the appellant's concern over the harm that may be caused to his reputation by the decision on the public interest, we note that the Tribunal ended its consideration in these terms: 48 … It is clear that the Applicant considers that his conduct on the night of 15 July 2008 was appropriate in the circumstances. This suggests that he does not have an adequate understanding of the standards that he must meet as a security guard and in my view it would be contrary to the public interest to permit the Applicant hold a licence. 49 This view does not mean that the Applicant should be prevented from re-entering the security industry at some time in the future if he does not re-offend. However, at this time it is not in the public interest for him to do so. It follows that the decision under review should be affirmed. 42 In our view, the Tribunal did not have in mind that any long term bar be applied to the appellant once the disqualification period passes. The Tribunal at this point of its reasons is simply signalling a concern over the appellant's appreciation of the gravity of his conduct on the night in question. That is a matter for the Commissioner to assess if and when a further application is made. 43 Leave to extend to the merits refused. Order Appeal dismissed.

Ibrahim v Commissioner of Police, NSW Police Force

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