Luk v Commissioner of Police, NSW Police

Appeal

1. This is an internal appeal under s 80(2) of the NCAT Act which is available as of right on a question of law. The appellant is not seeking leave to appeal on other grounds.
2. The sole ground of appeal is whether the Member erred in finding the offence under s 474.17(1) of the Criminal Code was a "prescribed offence" within the meaning of s 16(1)(b) of the SI Act.
3. For the following reasons, we conclude that there was no error on a question of law, and the appeal must be dismissed.

Relevant legislation

1. Section 26(1A) of the SI Act provides: 26 Revocation of licence … (1A) The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.
2. Section 16 of the SI Act provides the grounds for refusal of a licence based on an applicant's criminal and other related history. The relevant provision is s 16(1)(b): 16 Restrictions on granting licence - criminal and other related history (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or (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 an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, or …
3. Clause 15 of the Regulation provides the offences and civil penalties that disqualify applicants: 15 Offences and civil penalties that disqualify applicants (1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: … (i) Offences involving stalking or intimidation An offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation. … (1A) Prescribed offences: section 16 (1) (b) For the purposes of section 16 (1) (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (a) an offence referred to in subclause (1) (a), (b) or (d)-(l), (b) an offence under the law of any Australian or overseas jurisdiction involving assault of any description, being an offence that, in the opinion of the Commissioner, is a serious assault offence.
4. Section 474.17 of the Criminal Code, which is the Schedule to that Act, provides: 474.17 Using a carriage service to menace, harass or cause offence (1) A person commits an offence if: (a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. Penalty: Imprisonment for 3 years.

Decision under appeal

1. The Member first identified the applicable legislation: 1. section 26(1A) of the SI Act provides that the Commissioner must revoke a licence if satisfied that if the licensee were applying for a new licence that application would be required to be refused; 2. section 16(1)(b) of the SI Act provides that the Commissioner must refuse to grant an application for a licence if the applicant has, within the period of five years before the application was made, been found guilty (with no conviction being recorded) by a court in NSW or elsewhere of an offence prescribed by the regulations; 3. clause 15(1A) of the Regulation provides that for the purposes of s 16(1)(b) of the SI Act, an offence referred to in sub-cls 15(1)(a)-(b) or 15(1)(d)-(l) is a prescribed offence; and, 4. clause 15(1)(i) of the Regulation refers to "an offence under any law of any Australian or overseas jurisdiction involving stalking or intimidation".
2. The Member posed the question for determination as: whether the offence in s 474.17 of the Criminal Code was correctly characterised as being an "offence involving … intimidation".
3. The Member noted the submissions on behalf of the appellant that he had not been charged with any offence of stalking or intimidation; that the language used in the Regulation should be given a textual interpretation and not a broad one, noting that disqualification from holding a licence had significant implications for the livelihood of the person concerned; that the definition of the Criminal Code offence neither contained nor referred to stalking or intimidation or both as being constituent elements of the offence; that the appellant had not been charged with an offence of intimidation or stalking under s 545B or s 21A or both of the Crimes Act 1900 (NSW); and that it was not permissible to look behind the conviction for the particular offence to consider the particular facts of the case, relying on Farah v Director, Department of Finance and Services [2014] NSWCATAP 23.
4. The Member noted that the jurisdiction to determine the application was conferred by s 29 of the SI Act, and that the matter turned on statutory interpretation. The Member noted that s 26(1) of the SI Act provides a number of grounds giving the respondent a discretionary power to revoke a licence, however that in this instance the mandatory revocation provision in s 26(1A) was relied upon; and that the Tribunal had no discretion in the matter.
5. The Member referred to Farah and Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861, both cases considering the meaning of "offence involving dishonesty": 35 In Farah the Appeal Panel noted that the provision there in issue referred to a conviction for an offence involving dishonesty. "The provision does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence" (at [39]). The tribunal could not look at the facts surrounding the offence to see if, in that particular case, the person had engaged in dishonest conduct: Our conclusion is that it is the offence itself that must "involve dishonesty". It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty "without further inquiry" (at [42]). 36 In Barber v Law Society of New South Wales (No. 2) [2001] NSWSC 861, another case where the meaning of "offence involving dishonesty" was in issue, Bell J had said, "It seems to me that the crime or offence the subject of the conviction must be one which answers that description without further inquiry" (at [32]). In this case the parties agree that Farah and Barber lay down the correct approach to be taken in the present matter.
6. The Member then posed the issue for determination in the following terms: 37 The crux of the present matter therefore resolves into the question whether the Criminal Code offence of using a telecommunications network in a way that reasonable persons would regard as "in all the circumstances, menacing, harassing or offensive" is an offence "involving stalking or intimidation" within cl 15(1)(i). As there is no dispute between the parties about the "objective facts", the question is purely a matter of statutory interpretation "without further inquiry". That process will entail giving general words their accepted legal meaning: Sterling Nicholas Duty Free Pty Ltd v Commonwealth [1971] 1 NSWLR 353, 358-359. 38 "Stalking" can be left out of account as being inapplicable to the use of telecommunications networks, whether for the purpose of menacing, harassing or of offending any person. 39 Of the phrase "menacing, harassing or offensive", only the word "menacing" could reasonably be regarded as falling within the connotation of "intimidation". It is therefore necessary to examine the meanings of those two words to determine whether there is a sufficient degree of equivalence between them to enable the tribunal to find that the concept of "intimidation" includes "menacing", such that the former "involves" or includes the latter. If it does not, the mandatory revocation procedure is inapplicable.
7. The Member applied the principles extracted from Farah, holding that the Criminal Code offence did not need to contain the word "intimidation" in order to qualify as a prescribed offence; noting that neither the SI Act nor the Regulation defined "intimidation" or "involving"; and then referring to definitions of "intimidation", "intimidating" and "menace": 43 Jowett's Dictionary of English Law (4th edn., Sweet and Maxwell 2015) defines "intimidation" as the use of violence or other threats to compel a person to behave in a particular way. It can denote "such intimidation as implies a threat of personal violence": Connor v Kent [1891] 2 QB 545, or "the using of language which causes another man to fear": Judge v Bennett (1887) 36 WR 103. 44 The definitions in general dictionaries are to a similar effect. The Macquarie Dictionary (6th edn.) defines "intimidating" as "1. Threatening". The online Oxford English Dictionary gives the meaning of, and synonyms for, "intimidation" as "Frightening, menacing, terrifying, scaring, alarming, terrorising, cowing, subduing, daunting, unnerving" (my emphasis). The online Cambridge Dictionary defines "intimidate" as "To frighten someone, usually in order to persuade them to do something that you want them to do" and lists among the synonyms "menacing" (my emphasis). 45 "Menaces" are "serious or significant threats", according to an often-quoted case: R v Clear (1968) 1 QB 670, 679. Sellers LJ's comments in that case use the words "threats" and "menaces" as synonyms: at 676D. His Lordship pointed out that while menaces are "threats likely to alarm the mind of an ordinary person of normal stability", they need not "affect the person actually addressed" (ibid.). 46 Lord Wright in Thorne v Motor Trade Association [1937] AC 797, 817 said that "I think the word "menace" is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended". 47 The various definitions and lists of synonyms indicate that the words "menacing" and "threatening" are interchangeable. The only point of difference appears to be etymology. The word "menace" is originally French (menace, n.f.), while the origin of "threaten" (ƥrētian) is Old English, hence Germanic. Such parallel etymologies are quite common in English. 48 That leads to the conclusion that if conduct is threatening, it is also "menacing". And as Mr Grey pointed out, the word "involving" is used in several places in cl 15(1) as part of a generic description of various types of offences, such as an offence "involving assault of any description" (cl 15(1)(c), or "involving fraud, dishonesty or stealing" (cl 15(1)(d)) or "involving robbery (whether armed or otherwise)" (cl 15(1)(e). 49 Examples exist of other legislation creating offences plainly involving intimidation but that do not actually use the word, such as s 315A of the Crimes Act. Still other offences of intimidation describe prohibited intimidatory conduct as "menaces", such as s 99 of the Crimes Act. Consequently, as the authorities make clear, conduct that is threatening or menacing is conduct "involving… intimidation". Communications that are menacing also by their very nature constitute intimidation. Conduct falling within the Criminal Code offence therefore necessarily qualifies as a prescribed offence within s 15(1)(b) of the SI Act. As the Appeal Panel found in Farah in a similar context, the offence is one that involves intimidation "without further inquiry".
8. The Member rejected a submission on behalf of the appellant that the offence with which he was charged did not refer to intimidation and he was not charged with intimidatory conduct as such, noting that the offence with which the police decide to charge a person is a matter within their discretion and was not one of the "objective facts". The Member held that the drafting of cl 15(1) of the Regulation left little scope for the operation of the expressio unius principle on which the appellant relied. The Member noted his agreement with the reasons of Senior Member Ransome in Gabriel v Commissioner of Police, New South Wales Police Force [2018] NSWCATOD 69. The Member concluded: 57 I therefore find that the Criminal Code offence that was found proved against the applicant is an offence involving stalking or intimidation and that consequently the mandatory revocation provisions apply. The application must therefore fail.

Grounds of Appeal

1. The appellant contends that the Member erred in law: 1. in concluding that the offence to which the appellant pleaded guilty is a "prescribed offence" in the list in cl 15(1)(i) of the Regulation; and 2. in giving cl 15(1)(i) of the Regulation a broad interpretation, contrary to Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23.
2. In Reply, the respondent contends that the Tribunal correctly determined that the offence in s 474.17(1) of the Criminal Code is an offence prescribed by the regulations made under s 16(1)(b) of the SI Act: that is, an "offence under the law of any Australian or overseas jurisdiction involving stalking or intimidation" within the meaning of cl 15(1)(i) of the Regulation, read with cl 15(1A) of that Regulation.

Submissions

1. The appellant submits that the list of 12 offences in cl 15 of the Regulation is exhaustive, and the intent of the legislature was to limit the scope of prescribed offences to the 12 offences identified in cl 15 of that Regulation. That intent is evidenced by the absence of language to the effect that "all offences under the Criminal Code" or "any offence under the laws of Australia" are prescribed. On that basis the express mention of the 12 offences necessarily excludes all other offences not so listed, and the offence with which the appellant was charged is not included in that list. The appellant could have been charged with the offence of intimidation, for example under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), but was not.
2. Secondly, the appellant submits that the Member erred in concluding that the offence under s 474.17(1) of the Criminal Code amounted to a prescribed offence, and the Member mischaracterised the offence in giving cl 15(1)(i) of the Regulation a broad interpretation. The appellant did not press a submission that the Member erred in considering dictionary definitions, however took issue with the meanings given, submitting that the Member erred in his discussion of the meaning of "intimidation" and his conclusion that the words "menace" and "threatening" are interchangeable. While intimidating is found as a synonym to threatening, intimidation is not found as a synonym to menace. Further, employing the statutory interpretation principle that words have their ordinary meaning, the word "menace" can in ordinary society have a playful or less sinister interpretation to threaten. The appellant accepted that it was appropriate to apply the reasoning in Farah, however submitted that it was necessary to consider the facts, and to consider whether the offence was one that could be regarded by a reasonable person as "menacing" or "intimidating".
3. The respondent submits that there is no dispute that cl 15(1A) of the Regulation is an exhaustive statement of the offences prescribed for the purposes of s 16(1)(b) of the SI Act, however that is irrelevant, as the question of law raised in the appeal is whether the offence under s 474.17(1) of the Criminal Code is one of the offences listed in cl 15(1A) of the Regulation. The respondent submits the following. Clause 15(1A) of the Regulation and through it cl 15(1) of that Regulation, prescribe offences for the purposes of s 16(1)(b) of the SI Act in a variety of ways, and so it is not correct that the only way in which offences are prescribed for the purposes of s 16(1)(b) of that Act is by reference to the statutory provisions that create them. Given the way in which the Regulation is drafted, no particular significance can be attached to the fact that there is no specific reference to s 474.17(1) of the Criminal Code. The description of prescribed offences in that way is a necessary and convenient drafting device to capture the wide range of offences that the executive government has decided should trigger the operation of s 16(1)(b) of the SI Act. If that drafting device were not used it would be necessary for the Regulation to list every single statutory provision that creates an offence of concern, not only for NSW but for each other State, the Commonwealth and any and all overseas jurisdictions. The respondent submits that in characterising the offence under s 474.17(1) of the Criminal Code by reference to the offence itself rather than the underlying facts the Member correctly understood the task. Further, the Member correctly, in accordance with Farah, gave the word "intimidation" its ordinary meaning bearing in mind the context and purpose of the SI Act.

Consideration

1. No issue was taken with the Member's identification of the applicable legislation and his statement of the issue to be determined on administrative review of the decision to revoke the appellant's licence. The Member correctly identified that issue as being whether the offence of using a carriage service (here, a telephone service) in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive, is an offence involving intimidation.
2. In the absence of a statutory definition of the term "offence involving … intimidation", the Member had to determine the ordinary and grammatical sense of the words used in cl 15(1)(i) of the Regulation, having regard to their context and the legislative purpose: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41.
3. The SI Act and the Regulation do not expressly state the objects or purposes of the legislation. As noted by the Member, there is some guidance in Feurstein v Commissioner of Police, New South Wales Police Force [2007] NSWADT 114: 11 … The Act 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. The legislation was enacted to exclude from the industry persons convicted of prescribed offences. In this regard, criminal record checks are undertaken on a regular basis after licenses are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and revoking their licenses.
4. Clause 15(1) of the Regulation prescribes offences for the purposes of s 16(1) of the SI Act in a variety of ways. It includes some offences by reference to the statutory provision creating them and "any similar offence" under the law of another jurisdiction: paragraphs (f), (g), (h), (j). Others are prescribed for the purposes of s 16(1)(b) of the SI Act in terms of an offence "relating to", or "in respect of" particular conduct: paragraphs (a), (b). Paragraph (i) is one of a number of offences prescribed in terms of an offence "involving" certain conduct, the others being paragraphs (c), (d), (e). The prescribed offences are not limited to offences committed in NSW, and include offences under the law of any Australian jurisdiction, or offences in any overseas jurisdiction that would be offences under the law of an Australian jurisdiction. The only offence prescribed solely by reference to a specific statutory provision is that in cl 15(1)(l) of the Regulation.
5. In the context of the disparate nature of the offences listed in cl 15(1) of the Regulation and the different ways in which they are identified, the Member's conclusion that there is little scope for the operation of the expressio unius principle is correct. We agree with the respondent's submission that given the way in which the Regulation is drafted, no particular significance can be attached to the fact that cl 15(1) of that Regulation does not refer specifically to s 474.17(1) of the Criminal Code.
6. As was common ground, in interpreting and applying cl 15(1)(i) of the Regulation, the decision-maker is required to engage in a process of characterisation in respect of the particular offence for which a person has been convicted or found guilty to determine whether that offence is one that involves the described conduct, in this instance, "stalking or intimidation".
7. That was the approach adopted by the Appeal Panel in Farah, from which the following propositions can be derived: 1. An "offence involving dishonesty" does not require that the relevant statutory provision contain the word "dishonest" or "dishonesty" (examples being stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud); 2. an offence involving dishonesty does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence; 3. it is the offence itself that must involve dishonesty, and it is not permissible to look behind a conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant, and those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest.
8. The Member noted at [36] that the parties had agreed that it is the offence itself and not the person's state of mind or the facts surrounding the offence that is in issue, and that Farah and Barber established the correct approach. Farah concerned a provision of the Property, Stock and Business Agents Act 2002 (NSW) which prevented a person from holding a licence if that person had a conviction in NSW or elsewhere for an "offence involving dishonesty". At issue in that case was whether an offence for money laundering under s 400.6(2) of the Criminal Code was an offence involving dishonesty. The Appeal Panel considered each of the elements of the money laundering offence, concluding that there was no act or omission involved in the offence which came within the ordinary meaning of dishonesty or within the extended meaning in that provision including recklessness. In Gabriel v Commissioner of Police, New South Wales Police Force [2018] NSWCATOD 69, Senior Member Ransome was considering an application for review of the revocation of a licence under the SI Act by a person who had been convicted of an offence under s 474.17(1) of the Criminal Code. Senior Member Ransome noted that while the purpose of the Property, Stock and Business Agents Act and the SI Act are somewhat different, both statutes are concerned with the licensing of occupations, and the particular provision under consideration in Farah and cl 15(1)(i) of the Regulation both deal with the circumstances in which a person is not able to hold a licence because they have been convicted of a certain offence. Senior Member Ransome concluded that the approach articulated in Farah was equally applicable to the SI Act.
9. In the present appeal, both parties accepted that Farah was applicable to interpretation of cl 15(1) of the Regulation. The contest was over how the Member had applied it, and in particular, whether the Member had given what the appellant described as a "broad" interpretation to the words used in cl 15(1)(i) of the Regulation. That submission relies on what SM Ransome in Gabriel described as a misconstruction of the Appeal Panel's statements in Farah. The Appeal Panel had noted that the kind of offences leading to mandatory disqualification should not be construed broadly, given that the effect of disqualification is commonly that a person loses their livelihood. However the focus of the Appeal Panel's discussion was on the characterisation of the offence itself, and, as noted by SM Ransome: 38 … The Appeal Panel's decision was directed towards what matters can be considered or taken into account by a decision maker in deciding whether the particular offence of which a person has been convicted falls within, in that case, "an offence involving dishonesty". The Appeal Panel concluded the Tribunal's consideration should be confined to the offence itself and not to some broader considerations, such as the person's conduct or behaviour. The Appeal Panel did not advocate that a narrow approach should be taken to construing the words that constitute the offence. Rather, the Appeal Panel concluded the word describing the offence should be given its ordinary meaning.
10. We agree with that reading of Farah. Accordingly, as submitted by the respondent, the characterisation process requires a comparison between the conduct proscribed by the offence and the conduct described in cl 15(1) of the Regulation: if the conduct proscribed by the offence involves (that is, "includes" or "entails" according to the Macquarie Dictionary definition of "involves") the conduct described in cl 15(1) of the Regulation, then the offence is one that is prescribed for the purposes of s 16(1)(b) of the SI Act.
11. That was the process undertaken by the Member in this instance, as recorded at [37] of his reasons. The Member started by identifying the elements of the offence for which the appellant had been found guilty, and then considered the conduct described in cl 15(1)(i) of the Regulation. In order to make the comparison, the Member was required to determine what "intimidation" meant. He undertook that task by reference to accepted principles of statutory interpretation, namely, that in the absence of a definition in the legislation he was required to ascertain the ordinary meaning of the word. The Member was entitled to consult dictionaries for that purpose. As noted by Beazley ACJ in Norrie v NSW Registrar of Births, Deaths and Marriages (2013) 84 NSWLR 697; [2013] NSWCA 145 at [84], "recourse to dictionary definitions is an accepted technique in the task of statutory construction". Her Honour went on to state: 85 However, … the use of a dictionary to enable the ordinary meaning of a word to be identified must not result in the words used in the statute being abandoned in favour of some other synonymous word or expression. Nor can the meaning of a word as a matter of ordinary English usage override the necessity to construe the statutory language in context.
12. The Member did not limit his discussion to the two dictionary definitions, having recourse to a legal dictionary and previous cases, to determine the range of meanings of the word "menacing" as used in the offence, and "intimidation" as used in cl 15(1)(i) of the Regulation and to conclude at [49] that conduct that is threatening or "menacing" is conduct "involving …intimidation". It is not to the point that the appellant could have been charged with an offence drafted so as to include specific reference to "intimidation": the issue was whether the offence with which he was charged and to which he pleaded guilty was an "offence involving … intimidation". No error has been demonstrated in the Member's conclusion that it is. The appeal should be dismissed.

Conclusion

1. The Appeal Panel orders: 1. The appeal is dismissed.

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: 21 January 2019