Kuriakos v Commissioner of Police, NSW Police Force

NCAT Occupational|2024-06-19

REASONS FOR DECISION

The proceedings relate to a decision made by a delegate of the Respondent to revoke the Applicant's Class 1A Security Licence under section 26 of the Security Industry Act 1997 on 12 March 2024. That decision was affirmed at Internal Review on 11 April 2024.
The Applicant has lodged an application to seek a stay of that decision.

Background

Prior to the revocation of the Applicant's Class 1A Security Licence, the Applicant was allowed to carry out unarmed security work including crowd control work.
The Applicant's licence was revoked based on the following circumstances: 1. On 22 February 2024, the Applicant was charged with Reckless Wounding, Custody of Knife in Public Place - First Offence and Armed W/I Commit Indictable Offence. 2. The Applicant allegedly stabbed the victim causing two puncture wounds to the chest, one puncture wound to his abdomen, a large laceration to his left shoulder area and a large laceration to the right groin area.
Photographs of the injuries to the alleged victim are included in the evidence before this Tribunal.
According to the Police Fact Sheet: "The victim and accused have known each other since 2016 as their houses are situated opposite each other .... There is a history of neighbour disputes between both parties, which began over the parking of vehicles in the street. About 10:00pm Wednesday 21 February 2024 the victim parked his motor vehicle outside his residence ... The accused was standing in the street outside of his own residence ... The victim heard the accused making loud noises, believed to be scoffing towards the victim. As a result, upon exiting his vehicle an argument has occurred between the victim and the accused. Towards the end of the argument the accused stated "If you come to my house I'm going to go get my knife". The victim then walked away inside his home. A short time later the accused left his residence to go to work. Police allege prior to exiting his residence, the accused had armed himself with a black handled steak knife. Suspecting the accused of previously damaging his vehicle on several occasions the victim exited his own residence and began to follow the accused, with the intention of discovering where the accused parks his own vehicle. They both turned onto [a street]. The accused, noticing the victim following him turned around and confronted the victim, with them both arguing. During this verbal altercation the accused said "I have a knife." The victim said "Yeah, what are you going to do?" and walked towards the accused. The accused pushed the victim back away from him, at which stage the victim punched the accused twice to the head. The victim and accused became involved in a fight, with the accused swinging his arms towards the victim. It is alleged by police at this time, [the] accused removed the steak knife from where he had secreted it, and stabbed the victim a number of times. During the scuffle the accused fell to the ground, and the victim kicked out at the accused, who continued to slash the knife towards the victim. The accused scrambled back to his feet and continued to swing towards the victim. Police allege the actions of the accused, being armed with a knife and slashing and punching towards the victim was reckless and, to arm oneself with a knife prior to leaving, unreasonable in the circumstances. As a result of the accused's actions, the victim suffered two puncture wounds to his chest, one puncture wound to his abdomen, a large laceration to his left shoulder area, and a large laceration to his right groin area. After a short time the victim and accused separated, during which time the victim realised he had suffered a number of knife wounds. The accused approached the front door of [a house near by], banging on the door and yelling for assistance. [A witness] opened the door, and upon speaking with the accused took the knife from the accused, placing it on a towel inside the residence. The accused contacted triple zero and reported being assaulted. During this time a number of residents left their homes and entered the street, rendering aid to the victim who was by this stage sitting in the gutter applying pressure to his wounds. Triple zero was contacted by the residents. A short time later police and Ambulance NSW arrived and the accused was placed under arrest.... A Crime Scene was established on the street, and inside the premises of[the witness], and both were examined by specialist officers. The knife taken from the accused by [the witness] was seized. The knife was photographed to be a black handled steak knife, with a blade about 10cm in length with a serrated edge. … About 09:20am Thursday 22 February 2024 Legal Aid was contacted and the accused obtained legal advice. The accused was then offered the opportunity to participate in an Electronically Recorded interview of Suspected Persons (ERISP) which he accepted. The accused told police that he had known the victim for a number of years, and there had been ongoing issues for a long time. The accused suspects the victim of damaging his vehicle on a number of recent occasions. About 10:00pm Wednesday 21 February 2024 the accused was outside when the victim parked his vehicle. The victim got out, and they argued, with the victim threatening the accused by way of "Something...something...Your car...Tonight." This caused the victim fear to go inside and take a knife from the kitchen and secrete it in his pocket. The accused then started to walk to work, and noticed the victim following him. The victim approached the accused, who told the victim "I have a knife fuck off" or similar. The victim did not, instead approaching the accused and punching him twice to the head, causing the accused to fall to the ground. The accused removed the knife from his pocket, holding it in a fist with the blade pointing out from the bottom of his hand and crossed it over in front of his head, blocking all of the punches by the victim. The accused at no stage tried to punch the victim or stab the victim. At the conclusion of the interview, the accused was asked to consent to a Forensic Procedure, by way of Buccal Swab and photographs, which he consented to. The accused's white shirt was observed to have what appeared to be dried blood staining it, and as such this was seized as an exhibit. The accused is now before the court."

Legal Principles

The general rule is that an application for administrative review of a decision does not prevent the decision from taking effect. The Tribunal has power, however, to make an order "staying or otherwise affecting the operation of the decision under review" (s 60 of the ADR Act).
In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, an Appeal Panel of this Tribunal led by Wright J, summarised the considerations which should be applied when considering a stay in matters such as this as including: 1. whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act; 2. whether the order is desirable taking into account: 1. the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; 2. any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; 3. the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; 1. the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4].
The circumstances that are relevant in any particular case to the considerations identified above may well overlap or be interrelated.

Submissions and evidence

The grounds for the application for a stay lodged by the Applicant are: 1. The applicant requires his security license for the maintenance of his present employment and had worked as a security guard without incident for 15 years. The Applicant relies on a letter from Mr Manzar Mirza in which is an unmarked letter entitled "To whom it may concern" and who attribute to himself the title of "Security Controller". 2. The criminal charges are unproven with the criminal proceedings on-going and the determination of the criminal matters may have substantial delay and uncertainty before a verdict is reached. 3. The Applicant is experiencing financial hardship by the revocation of his licence. 4. Otherwise, the Applicant relied upon evidence of the impact these events have had on the Applicant's life such as: 1. As a result of being concussed by the altercation, this has exacerbated his anxiety and depression; 2. As a result of needing to stay with his mother (which was part of his bail conditions), his life has been disrupted and this has also exacerbated his anxiety and depression and the conditions of his mother's residence is uncomfortable and difficult with his mother sleeping on the floor as she given him, her bedroom. 3. In respect of the public interest: 1. it is in the public interest to grant the stay because there is no evidence that the Applicant is not a fit and proper person aside from the altercation. In this respect, the Applicant's representative contended that the test for fit and proper was the same as that of public interest; and 2. in any case, the threshold for an unarmed licence should be considered a lower risk threshold to other classes. 1. The Applicant relied upon: 1. A bundle of documents including the application form and internal review decision marked "A1" 2. Statement of the Applicant marked "A2" attaching a one page letter from Dr Lee of Enmore Medical Practice listing medications taken by the Applicant and a letter from the Applicant's mother which was written in an attempt to vary the Applicant's bail conditions; 3. An additional letter from Dr Lee dated 13 March 2024 described above marked "A3"; 4. Written submissions marked "A4" as well as oral submissions; 5. To whom it may concern letter from Mr Manzar Mirza also described above and marked "A5"; and 6. The verification page of the statement given that the original version was unsigned (and illegible in part) marked "A6". 1. In response, the Respondent took me to s 60(2) and (3) of the ADR Act and the authorities. The Respondent submitted that: 1. With respect to s 60(2) of the ADR Act, the Applicant was charged with the serious offences of malicious wounding and had his licence revoked. Regardless of the outcome of the criminal proceedings, it is the Applicant's conduct, not the fact of a conviction, which is to be considered by the Tribunal. As the criminal proceedings are not determinative of the administrative review proceedings, the interim orders sought by the Applicant are not appropriate to secure the effectiveness of the determination of the application. 2. With respect to whether the stay is desirable considering the interests of any persons who may be affected, the only adverse impact as identified by the Applicant is an allegation of alleged "financial hardship" however as was made clear by the Applicant's representative, the Applicant is currently employed as a night shift worker and in those circumstances, the Tribunal would not accept this allegation. Otherwise, the Applicant's medical condition or living circumstances have no bearing on this issue as any stay would not remedy any difficulty in those circumstances. In respect of the latter, the letter relied upon from the Applicant's mother is irrelevant having been prepared to vary bail conditions. 3. With respect to s 60(3)(b) as well as the public interest as per s 60(3)(c), it cannot be in the public interest for a person charged with such serious criminal charges to be allowed to undertaken Class 1A security work noting that these offences fall within the prescribed offences which automatically disqualify applicant in the event of a conviction or finding of guilt under the Security Industry Act 1997. 1. The Respondent relied upon: 1. Written submissions marked "R1" as well as oral submissions; and 2. Section 58 documents marked "R2".

Considerations

I accept the submissions of the Respondent and make the following findings:
As the criminal proceedings are not determinative of the administrative review proceedings, the interim orders sought by the Applicant are not required to secure the effectiveness of the determination of the application.
Even if that was not the case, I am not satisfied, after considering all the evidence that it is desirable considering the interests of the Applicant. In this regard, the evidence does not satisfy me that the Applicant has experienced financial hardship. The only evidence that is relied upon is an assertion that such a hardship exists without any substantiating documentation while simultaneously making the admission that the Applicant is presently employed in a different occupation. The alleged hardship that it seemingly relied upon is the revocation of the licence itself but if this alone was sufficient, every revocation of a licence would give rise to an entitlement to a stay which cannot be correct.
Additionally, I accept the Respondent's submissions that the Applicant's living arrangements are irrelevant to a consideration of the effect of the revocation and are rather an impact of the Applicant's bail conditions. Likewise, the Applicant has not satisfied me of any correlation between the Applicant's alleged anxiety and depression and the revocation of his security licence and how a stay of that decision has any impact on that situation.
In respect of the public interest, I do not accept, as contended on behalf of the Applicant that the test for what is in the public interest is the same as that for who is fit and proper. Further, given the serious criminal charges and noting that these offences fall within the prescribed offences which automatically disqualify an applicant in the event of a conviction or finding of guilt under the Security Industry Act 1997, I do not accept that it is in the public interest to continue to be licenced while awaiting administrative review of the decision. In respect of this finding, I note that the Applicant has requested to delay the hearing of the administrative application until after the criminal proceedings have been finalised which may significantly delay the finalisation of the administrative review. In any case, the Security Industry Act, 1997 was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard (Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114). It is inconsistent with this purpose to grant the stay.
I dismiss the application.

Orders

The request by the Applicant to stay the decision made by the Commissioner of Police to revoke the applicant's security licence is refused.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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. Decision last updated: 05 July 2024

At a glance

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Judgment (7 paragraphs)

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Cases Cited (4)