Nadan v Commissioner of Police

The Applicant's conduct: First incident

1. On 28 January 2019, the Applicant was charged with assault that occurred sometime around 25 December 2018. What follows is broadly in accordance with the Agreed Facts. The Applicant had sold his smash repair business to a Mr Singh. The handover of the business occurred on 18 November 2018. On the day of the incident the Applicant entered the business' premises without Mr Singh's consent, and walked to the office area. The Applicant spoke to Mr Singh as he was walking across the workshop area and he told him that he was there to collect the monitor for Mr Nelson, who had been an administrative manager employed by the Applicant during his ownership of the business. While the contract had included a list of some of the inclusions and exclusions, there was a dispute about whether the Applicant had the right to take the monitor as Mr Singh maintained that it was part of the property sold to him. The Applicant walked to the office area and took the monitor. Mr Singh stood in the doorway and the Applicant pushed him twice to the shoulder area to walk past him. The Applicant and Mr Singh went downstairs to the workshop where a heated discussion took place that was recorded on Mr Singh's mobile phone and the Applicant "moved into Mr Singh's personal space". The conversation continued for a short time and the Applicant deliberately lunged forward and struck Mr Singh's upper body with his body, possibly striking Mr Singh's forehead, although the Applicant denied a "head butt", and Mr Singh's recording, which was played at the hearing, was inconclusive. The Applicant then took the computer monitor from the premises but returned it 2 minutes later. The Applicant was then arrested at the premises and charged with several offences, all of which were later withdrawn, with the exception of a charge of common assault to which the Applicant pleaded guilty on the basis of Agreed Facts.
2. On 18 September 2019, on appeal to the District Court, the Applicant was found guilty in relation to the First incident and released without conviction with a conditional release order for a period of 8 months concluding on 17 May 2020.
3. I turned to consider if the outcome in respect of the First incident attracted s 26(1A) of the Act which concerns the mandatory revocation of a licence and which provides: (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.
4. Section 16(1)(b) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: … (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 … of an offence prescribed by the regulations in relation to the class of licence sought, ... (emphasis added)
5. Clause 15(1A) of the Regulation provides a list of prescribed offences for the purposes of s 16(1)(b) of the Act where a person has been found guilty but not convicted: (1A) Prescribed offences: section 16(1)(b) For the purposes of section 16(1)(b) of the Act, the following offences are prescribed offences …: (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. (emphasis added).
6. Neither the Act nor the Regulation define 'serious assault offence'; neither does the Crimes Act 1900. The Respondent did not contend that the First incident constituted a 'serious assault offence', in accordance with the principles in Logona v Commissioner of Police, NSW Police Force [2018] NSWCATAD 229. However, this is a matter for the Tribunal.
7. The Tribunal has previously considered whether an assault can be considered 'serious' without the assault offence being expressly called a 'serious assault offence' in the relevant legislation: Krzeminski v Commissioner of Police, New South Wales Police Service (No 2) [2003] NSWADT 8 (Krzeminski) at [41]. The Tribunal in Krzeminski at [46] set out some factors in considering if a common assault offence is to be considered 'serious': 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.
8. It appeared to me, especially after viewing the phone camera video, that the altercation is not properly described as a 'serious' assault. There was a heated discussion (on both sides) but no evidence of injury to Mr Singh by the Applicant's actions. There was no weapon involved and the evidence of a head butt was equivocal, at best.
9. Accordingly, s 16(1)(b) of the Act does not apply and, the Commissioner is not required to revoke the Applicant's security licence under s 26(1A) of the Act.
10. It remained though, that the Applicant, when confronted with a heated dispute, resorted to a physical response.

The Applicant's conduct: Second incident

1. On 9 August 2019, the Applicant was involved in a Second incident while he was performing security guard duty at the Potts Point Hotel. The incident resulted in him being charged with common assault, in that he allegedly struck a patron twice in the head with a closed fist while the patron was being restrained. On 21 August 2019, the Applicant was charged in relation to the incident, which, at the date of the hearing, had not yet been determined by the Local Court.
2. The fact that the incident has not yet been proven against the Applicant is irrelevant: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31 at [62] - [64]; it is the Applicant's conduct, not the fact of a conviction, that is to be considered: Bazouni & Ors v Commissioner of Police, New South Wales Police Service [2002] NSWADT 100; Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70 at [30]..
3. From the evidence of Mr Maharajan, and the Applicant's affidavit, it appeared that 9 August 2019 was a busy night at the 3-level venue, with nearly 300 patrons, some of whom were inebriated. There were 2 managers and 2 security guards on duty, one of which was the Applicant. At about 11.30pm some patrons became rowdy and disruptive of other patrons, as a result of which, a number of people were asked to leave the premises. The Applicant assisted in the difficult task of manoeuvring the intoxicated group down the stairs. There was a scuffle. The Applicant claimed he was punched by 2 male and one female patron. Mr Maharajan was kicked and punched and the Applicant said he assisted in defending him.
4. The Applicant specifically denied assaulting the man in the white tee shirt who was being loosely held by the manager or one of the bar staff who had come to assist in the removal of the patrons. In his affidavit of 6 February 2020, the Applicant conceded that he had struck the man, but said that 'it was a volatile situation and I was acting in my own self-defence and others, using reasonable force to remove him and the others from the venue'. He said the man was much larger than him and the manager.
5. The CCTV footage shows there was something of a melee down the stairs and on the landing. The man in the white tee shirt appeared to have been difficult to remove and had pushed the Applicant and thrown punches and had been restrained. The fracas appears to have momentarily subsided and the Applicant appeared to have moved around other persons on the landing to get to the man in the white tee shirt, in order to punch him.
6. Mr Maharajan described the Applicant as ordinarily being very calm, and nice to patrons. He had seen him dealing with angry people many times and he was a 'smooth talker'.

Would Mr Nadan's retention of his security licence be contrary to the public Interest?

1. I turned first to consider the nature of "public interest". In Director of Public Prosecutions v Smith [1991] 1 VR 63, the Court stated The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals.
2. In Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9 at [56], the Appeal Panel said that the public interest is an inherently broad concept giving the Commissioner (and therefore the Tribunal on review) the ability to have regard to a wide range of factors in choosing whether or not to exercise a discretion adversely to an individual. Other relevant considerations are the nature of the licence, the activities authorised by the licence and the nature of risks to public safety that arise when a licence is issued: [56] - [61]. In Joseph v Commissioner of Police, New South Wales Police Force [2014] NSWCATAD 46 I pointed out in the context of firearms licensing that the "public interest" allows a consideration of issues going beyond the character of an applicant to be taken into account. These might include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. An applicant's individual interest in retaining his licence is subordinate to the public interest in ensuring public safety: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681.
3. In IJ v Commissioner of Police, New South Wales Police Service [2003] NSW ADT 230 at [27], the Tribunal said, in relation to security licensees: A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
4. Similarly, in Ibrahim v Commissioner of Police, NSW Police Force [2009] NSWADT 245 at [47], the Tribunal stated in relation to the discretion to issue a security licence under the Act: 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, ie 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. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe.
5. The Respondent submitted that the fact that the conduct in the Second incident occurred in a situation in the course of the Applicant's role as a licensed security guard adds a further level of concern: Rowe v Commissioner of Police, New South Wales Police Force [2010] NSWADT 307 at [22]. It was submitted that security operatives are expected to maintain a high standard of behaviour at all times, and to provide competence, integrity and accountability in connection with the performance of their duties. I do not disagree with this general submission, but consider that high standards to which security licensees are to be held must take into account the circumstances in which the offending conduct occurred. I do not consider that in every circumstance where a security guard strikes a patron necessarily "totally contradicts what is expected of a security operative", as the Respondent contended.
6. That said, I accept that a person who works in the security industry, particularly at licensed premises late at night, is likely to encounter behaviour which is challenging; the conduct of patrons may be aggressive, and may involve being 'under pressure in unexpected and hostile circumstances': O'Neill v Commissioner of Police [2005] NSWADT 130. The public is entitled to expect a security guard to exhibit a degree of restraint, even when provoked. Nonetheless, I consider the public would regard proportionate self-defence to be reasonable.
7. That said, it is unacceptable to retaliate where a threat to the security guard or others has passed. While it is clear that the circumstances in the Hotel were volatile at the time of the incident, it is also clear that immediately before the Applicant struck the patron, the situation had, momentarily at least, calmed and the patron was being restrained. I consider that the Applicant's actions in relation to the Second incident were not justified; there was, at that time, no imminent threat of violence towards him or others.
8. I accept that Mr Maharajan's experience of the Applicant's conduct as a security guard has been positive when confronted with angry patrons. Further, I accept that the Applicant has not otherwise come to attention in the work context in the 6 years he held his licence in this state. That he obtained his licence pursuant to the mutual recognition of his Queensland licence also suggests he is unlikely to have been adversely recorded in that state.
9. Public interest in the context of s 15(3) of the Act however requires paramount consideration to be given to public safety: Infannato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43. The likelihood of public safety risks is to be assessed by reference to the Applicant's prior conduct: Brosowski v Commissioner of Police, New South Wales Police Service [2003] NSWADT 182 at [41]. The evidence is that the Applicant has resorted to violence on 2 occasions. While the First incident did not occur in the context of his occupation as a security guard, it is nonetheless concerning that when confronted with a difficult situation, the Applicant resorted to violence, albeit not necessarily 'serious', towards a person with whom he was essentially having a commercial dispute. Given his relatively recent history, the public cannot be assured that the Applicant will not resort to violence in the future. The public needs to have confidence in the licensing system.
10. For the reasons given above, I am satisfied that it is not in the public interest for the Applicant to be afforded the privilege of continuing to be a licensed security officer.

Decision 1. The decision under review is affirmed.

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: 03 March 2023