Kfoury v Commissioner of Police

Court of Criminal Appeal (NSW)|2009-10-16

The Applicant proffered no explanation for initially denying that he had made any push at all, with the inference being he realised he had overstepped the mark on the night in question and was not prepared to confess to a push until he viewed the CCTV footage and realised denial was no longer possible.

The use of force was in circumstances where there was no threat and indeed, the Applicant conceded that "he was not in the circumstances entitled to manhandle the victim"; that "he might have used less physical force"; and that "he might have had more care for the victim in ensuring that he did not fall over as he did".

While I accept the Applicant was, pursuant to his training, required to refuse to admit to licensed premises any person who is at the time intoxicated, violent, quarrelsome or disorderly pursuant to s.77(2) of the Liquor Act 2007 , and I acknowledge that the victim was inebriated, I agree with the Magistrate's view that, as a security guard, the Applicant was trained to deal with intoxicated and aggressive patrons and yet the manner he chose to dissuade the potential patron from entry to the club, namely an unprovoked push to the chest, and knew that it could not be justified; was not justified. Magistrate Viney, on 17 August 2009, said:

"In respect of this matter I note your plea of guilty, it is true that you do come before the Court, certainly as a person of prior good character, but a security uniform does not give you permission to touch anyone regardless of their reluctance to move on . You would be well aware of the fact that you have no authority to manhandle people in any way whatsoever and clearly had this gentleman hit the pavement any harder the consequences may well have found you in another jurisdiction facing a much more serious charge . So I am sure you will not be the first or last person to come before this Court thinking that a shove is not going to be too dramatic, but clearly the implications are huge.

I accept that there was the physical interaction with the victim was at the lower end of the scale, and at the time the victim was intoxicated. As I said, you need to develop other strategies for dealing with people, especially in your line of work, which ensures that you do not come back before this Court." (Underlining added)

73 I am of the view that the above factors, when taken together, demonstrate that the assault, albeit only a push, was a serious assault offence. This Applicant acted in an unjustified aggressive manner causing injuries to the victim, and he did this whilst on duty as a security guard. Accordingly, I find that the assault was a serious assault offence which gives rise to an automatic revocation of the Applicant's licence.

74 It is also my view that it is not in the public interest that the Commissioner's revocation of the Applicant's licence be set aside. The Tribunal has considered the concept of 'the public interest' in a number of decisions. In Commissioner of Police and Toleafoa [1999] NSWADTAP 9 at paragraph [25] the Appeal Panel stated, albeit in regard to a decision to refuse to issue a security industry licence: "The 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 discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended the public interest discretion operate in areas to which the character ground was not relevant or, possibly in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal."

75 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the wellbeing of its members': Director of Public Prosecutions v Smith (1991) 1 VR 63. Section 26(1)(d) of the Act includes 'public interest' as a ground for revocation of a security licence "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 decision-maker's consideration": Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 at page 681. The overall interest is therefore the interest of the public as distinct from the interests of the individual or individuals.

76 In Ibrahim Judicial Member Montgomery observed: "The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant, that is, the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role ensuring that public order is maintained, safeguarding community assets and private property and ensuring that public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6."

77 In MU v Commissioner of Police [2004] NSWADT 197 at [23], the Tribunal regarded the Commissioner's statement that the public interest "requires paramount consideration to be given to public safety" to be a correct statement of the law.

78 Working as a security officer may involve working "under pressure in unexpected and hostile circumstances": O'Neill v Commissioner of Police [2005] NSWADT 130. A person who works in this industry, particularly at licensed premises late at night, is likely to encounter behaviour which is aggressive, provocative or otherwise challenging. A security officer must be able to respond to such situations without resorting to violence. The public expects that a person who holds a security licence is able to do so. While acknowledging that the Applicant is reliant on his income from his work as a security officer to maintain his mortgage given his wife's recent loss of employment, this interest is not sufficient to outweigh the public interest in maintaining public safety and maintaining confidence in security officers."

79 The character references provided by the Applicant from Lindsay Tetsill, Rodney Begg and Rowan Hancock all speak well of the Applicant in the performance of his duties and demonstrate an awareness of the circumstances in which the references were sought, namely the revocation of the Applicant's security licence. I note the Respondent's submission that these references were provided for the purpose of the Local Court proceedings and were provided at a time at which the Applicant was intending to vigorously defend the charges and did not take into consideration his subsequent decision to plead guilty to the charge of common assault. Of greater concern to the Tribunal in this context is the initial lack of candour of the Applicant with respect to the events of 20 March 2009 as revealed by his different later statements, made after viewing the CCTV footage. No explanation was provided for the disparity in these explanations, with the only inference being that but for the CCTV footage clearly showing a push, the Applicant would have maintained hat no push had occurred at all.

80 This fortifies the Tribunal in its view that the Commissioner's decision to revoke the Applicant's licence on public interest grounds is the correct and preferable decision. Accordingly, having regard to the interest of the whole community, I am of the view that it would be contrary to the public interest to permit the Applicant to hold a security licence and, accordingly, the decision under review is affirmed.

81 This view does not mean 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.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Kfoury v Commissioner of Police [2010] NSWADT 53

Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 Comalco Aluminium (Bell Bay) Limited v O'Connor and Ors (1995) 131 ALR 657 Commissioner of Police v Krzeminski [2002] NSWADTAP 3 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Director of Public Prosecutions v Smith (1991) 1 VR 63 CASES CITED: Haining v Commissioner of Police [NSWADT 6] Krzeminski v Commissioner of Police (No 2) [2003] NSWADT 8 O'Neill v Commissioner of Police, NSW Police Force [2005] NSWADT 130 MU v Commissioner of Police [2004] NSWADT 197 R v Henry and Ors [1999] NSWCCA 111

(e)The victim sustained significant injuries including severe swelling and bruising to the right side of the face, as well as a black right eye and cut above it. The Respondent submitted that the effect of the assault on the victim is a relevant factor in determining objective seriousness of the offence: R v Henry and Ors [1999] NSWCCA 111 at 85 per Spigelman CJ.

27 The Respondent also submitted that it was contrary to the public interest for the Applicant to hold his licence as the Respondent contended the Applicant could not be described as a person of integrity, viz, a person who is honest, truthful and of good character or appropriately qualified (O'Neill v Commissioner of Police [2005] NSWADT 130 ("O'Neill")).

51 The Applicant cited Krzeminski v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 8 ("Krzeminski (No 2)"), in particular the Summary of the Decision at paragraph 48 of the judgment and submitted that the fact that the Applicant pushed the victim to the left shoulder using "the check drill" technique (which a witness in the proceedings, a Mr Rohen Hancock, Security Manager for Infinity Protection Services, had attested was an approved method) could not meet the test for a serious offence as outlined in the case of Krzeminski v Commissioner of Police, as there was no anger, threat, no weapons and indeed no brute force.

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