SECURITY INDUSTRY - licence revocation - fit and proper person - public interest - drug abuse - drug test.
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013 (CAT Act)
Evidence Act 1995
Security Industry Act 1997
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11
Source
Original judgment source is linked above.
Catchwords
SECURITY INDUSTRY - licence revocation - fit and proper person - public interest - drug abuse - drug test.
Legislation Cited: Administrative Decisions Review Act 1997Civil and Administrative Tribunal Act 2013 (CAT Act)Evidence Act 1995Security Industry Act 1997
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11Blisset v Commissioner of Police, New South Wales Police Force (CoP) [2006] NSWADT 114Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657CoP v Toleafoa [1999] NSWADTAP 9Director of Public Prosecutions v Smith (1991) 1 VR 63Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60Esterman v CoP [2014] NSWCATOD 70Feuerstein v CoP [2007] NSWADT 114Habib v CoP [2015] NSWCATOD 48Hardy v CoP [2006] NSWADT 167Hill v CoP [2002] NSWADT 218Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127Ibrahim v CoP [2009] NSWADT 245IJ v CoP [2003] NSWADT 230Infarinato v CoP [2004] NSWADT 43Joseph v CoP [2017] NSWCA 31
On 21 September 2016 the applicant Mr Stephen Piniotis applied to this tribunal for review of decisions by the respondent Commissioner of Police, New South Wales Police Force on 7 September 2016, to revoke his class 1AC Security Licence No. 408167541 and his class MD Master Security Licence No. 407787239. The decisions were taken pursuant to ss 15, 25 and 26 of the Security Industry Act 1997 (SI Act) on the ground that the applicant was not a fit and proper person to hold the licences in question and that it was not in the public interest for the applicant to continue to hold the licences.
At a hearing in this tribunal on 27 September 2016, the decisions were stayed pending the determination of these proceedings, subject to certain conditions including drug testing. The matter was then set down for hearing at Albury Courthouse and was then adjourned part heard to 20 March 2017 at Sydney, and again to 19 April 2017.
[2]
Applicable legislation
Section 26(1A) of the SI Act provides that -
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.
Section 15(1)(a) of the Act provides that the Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant is a fit and proper person to hold the class of licence sought by the applicant.
Sections 15(6) and (7) read as follows:
(6) For the purpose of determining whether an applicant is a fit and proper person to hold the class of licence sought by the applicant, the Commissioner may have regard to any criminal intelligence report or other criminal information held in relation to the applicant that:
(a) is relevant to the activities carried out under the class of licence sought by the applicant, or
(b) causes the Commissioner to conclude that improper conduct is likely to occur if the applicant were granted the licence, or
(c) causes the Commissioner not to have confidence that improper conduct will not occur if the applicant were granted the licence.
(7) The Commissioner is not, under this or any other Act or law, required to give any reasons for not granting a licence if the giving of those reasons would disclose the existence or content of any criminal intelligence report or other criminal information as referred to in subsection (6).
Section 26(1)(d) prescribes that a licence may be revoked for any other reason prescribed by the regulations. Clause 25 of the Security Industry Regulation 2007 provides that a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it was granted to continue to hold it.
Section 29 of the SI Act confers jurisdiction on this tribunal to hear applications such as the present one. As this case involved the presentation of confidential evidence, s 29(3) is relevant. It provides that when hearing such applications, the tribunal:
1. is to ensure that it does not, in the reasons for its decision or otherwise, disclose the existence or content of any criminal intelligence report or other criminal information referred to in section 15(6), 17(5) or 26(5) without the approval of the Commissioner, and
2. in order to prevent the disclosure of any such report or other criminal information, is to receive evidence and hear argument in the absence of the public, the applicant for review, the applicant's representative and any other interested party, unless the Commissioner approves otherwise.
[3]
Respondent's evidence
The respondent relied on the s 58 documents (exhibit R1) and other documentary material and also adduced oral evidence from Sharelle Maree Bass (formerly Piniotis), the applicant's ex-wife. The spouses have been separated since October 2015 and were in the process of having the marriage dissolved.
[4]
Ms Sharelle Bass
Ms Bass adopted her statement to police dated 9 December 2015 as her witness statement (part exhibit R1), in which she said inter alia that there were two children of the marriage, one then aged four years and the other then aged eight. During the marriage she found the applicant controlling and jealous. He would constantly question her about where she was going, whom she was with or what she was doing. He would never allow her to do things without him. On one occasion in Melbourne he pressured her to take a lie detector test because he was convinced she was having an affair with one of his friends. That was not the case, but she was greatly stressed and failed the test, with the result that he held the incident against her throughout the marriage.
He was financially controlling and had control over whatever money she had access to. Throughout the marriage they owned numerous properties and realized some earnings through property development. He pressured her to declare bankruptcy because he did not wish to continue making payments on an apartment purchased in her name. On some days he would refuse to speak to her for no apparent reason. On occasion he would belittle her in front of the children, calling her "dumb", "stupid" and "a slut". When there was a major argument he would occasionally throw objects at her and manhandle her.
The marriage had nevertheless been generally happy until their second child was born in 2011. She noticed some major changes in his attitude and behaviour. He became moody and ill-tempered and began to take sleeping pills regularly. He also started spending a lot of time, up to 4 or 5 days a week, at a shed he rented where he would work on cars. He would go there in the afternoons and sometimes return for dinner before going back to the shed. In about 2001 they both worked at the Ritz Hotel nightclub in Albury, the applicant being a security guard and Ms Bass collecting entry fees from patrons of the nightclub. At that time, like many of the other staff at the hotel, they regularly used amphetamines and ecstasy pills. As the years went by, they would occasionally use drugs but ceased doing so once they had a family.
In about 2010 they visited a friend's place in Melbourne, where there was a man present who she knew only as "Anthony". She was later told by her friend's husband that Stephen had been smoking "ice" with Anthony. She did not speak to Stephen about it and thought it was an isolated incident. Some time in 2013 she began to suspect strongly that he was again using "ice" (otherwise known as methylamphetamine or "crystal meth"). She found a small resealable plastic bag in his shed, which contained a crystalline substance. She spoke to him about it and he said it belonged to one of his friends. One evening when they were discussing drugs, the applicant told her that using ice was no different from having a beer or a glass of wine. She said to him, "What happens if you get caught, what happens with our children, the embarrassment with our business?" The applicant said, "I'm not a dealer. They only come after dealers". She did not know how often he was using and found it generally hard to tell when he was affected by the drugs. But on average he appeared to be affected once to twice a week, although there were some weeks when he was not affected at all.
[5]
Dr Judith Perl
On the first adjourned date the respondent called Dr Judith Perl, a clinical forensic pharmacologist employed by the police in the Impaired Driving Research Unit, who since 1979 has been involved in research on the effects of alcohol and other drugs on cognitive functions and skills performance, in particular related to driving ability, which was also the topic of her thesis. She has personally tested many people in both the sober state and under the influence of alcohol or other drugs or both. In the course of her research she has gained experience in blood analysis by gas chromatography and conducted breath analysis.
Dr Perl supplied an expert certificate dated 25 November 2016 explaining that she had been asked to comment on whether the drug phentermine could produce a false positive result for methylamphetamine (also written as "methamphetamine") in oral fluid. She noted that the applicant had been stopped for a roadside drug test which was found to be positive for amphetamines. An oral fluid sample was obtained from him and sent to the Victorian Institute of Forensic Medicine, where it was analysed for three illicit drugs. The sample was confirmed to be positive for methylamphetamine.
The applicant had provided a statutory declaration denying the use of methylamphetamine in May 2016. He stated at the time that he was taking a dietary supplement to lose weight and the supplement contains "Duromine" or phentermine. He had stated that he saw an Internet blog suggesting that this compound could produce false positives on drug swabs. He stated that because of some allegations made by his former wife in 2015, he voluntarily undertook hair sample screening in January 2016. The screening conducted at a laboratory in South Australia proved negative.
Dr Perl continued that there is no legal medication, prescribed or over-the-counter, in Australia that contains methylamphetamine. Methylamphetamine is an illicit drug. Screening oral fluid tests are immunoassay based and there is a very small risk that other legal stimulant drugs with parts of the molecular structure similar to parts of the methylamphetamine structure may be detected. For that reason confirmation of the actual drug present is required to be conducted at the laboratory, using highly specific methods.
The confirmatory testing used at the Victorian Institute of Forensic Medicine was high performance liquid chromatography (HPLC/MS) with tandem mass spectrometry. That method confirmed the presence of methylamphetamine. Using that dual method, Dr Perl would have confidence in the confirmed presence of methylamphetamine. As phentermine is not an illicit drug and only two illicit drugs are looked for at the laboratory, she would not expect phentermine to have been looked for in the sample of oral fluid.
[6]
Mr Piniotis: statutory declarations
The applicant filed a number of statutory declarations, some of which may have been prepared originally for the purposes of an extension of time application in the Victorian Local Court, an AVO and the stay application in this tribunal. There is a certain amount of overlapping between them and I will not repeat material that appears more than once. The earliest of the declarations appears to be the one dated 15 September 2016 (part exhibit A1), which also seems to be the one referred to in Dr Perl's expert certificate. It states inter alia that the applicant holds Master Security Licence 407787239 and class 1AC Security Licence 408167541, as well as Victorian Private Security Business License B1790002A. He owns Inter-City Security Services, which provide security services within the Albury Wodonga region. His clients include Albury airport, Charles Sturt University, Albury Courthouse and Albury City Council. He has also provided services at a number of music festivals and similar one-off events. They are the oldest security business in the region, having been operating continuously since 1966. During that time none of their employees has been convicted of any offence in the course of their employment. He has 25 permanent employees, and at peak periods employs up to 35 persons.
On 20 May 2016 he was in his car in Wodonga and was asked by police to undergo a drug swab. He was told that the swab was positive for methylamphetamine. He denied that he had used methylamphetamine in May of that year. "At the time of the offence I was taking a dietary supplement in an effort to lose weight. This supplement contains "duramine" or "phentermine"". He had seen material on the Internet suggesting that this chemical can create false positives on drug swabs.
In 2015 his marriage ended acrimoniously. His ex-wife made allegations of drug use by him, as a result of which he voluntarily undertook testing for the screening of illicit drugs. In November and December 2015 he provided urine samples, all of which produced negative results. In February 2016 he provided a hair sample that was tested for the presence of illicit drugs. None were detected. The report had stated that "The amount of hair analysed would approximately cover the 3 months prior to sampling".
The next statutory declaration is dated 27 October 2016. It states that on 1 November 2015 he separated from his wife Sharelle Bass, ending their 14-year relationship. They have two children, one aged 9 and the other 5. In December 2015 Sharelle made a statement to Albury police and he was charged with criminal offences as a result. Following representations made by his solicitor, all the charges were withdrawn. Among the allegations made in the statement were allegations of illegal drug use. When he became aware of them, he voluntarily undertook a 90-day hair sample test in January 2016, which concluded that no illegal drugs were in his system. He also consented to an apprehended violence order (AVO), without admissions, because he could see that he would have no trouble in complying with it.
[7]
Mr Piniotis: oral evidence
In his oral evidence on the first adjourned date the applicant reiterated the circumstances of the 20 May 2016 drug test, saying that he had told police he was surprised about the positive result and had explained to them that he was using one Duromine a day to lose weight, having obtained it from his brother. He had just returned from Thailand, where he had purchased Didrex for weight loss. Asked in chief why he had only told the police about Duromine and the booster but had not mentioned Didrex, he replied that it was because Didrex was sold over the counter.
He had never taken methylamphetamine and did not drink or smoke. Because of his experience in the security industry, he is opposed to drugs. Further, a friend of his had died as a result of drug abuse. He could not understand how he could have received a positive reading on 20 May, and had learned on the Internet that Duromine can give a false positive. It had been a busy time for him. His case is now in the Victorian Local Court, with a hearing date of 20 April 2017.
When it was put to him that his wife had said he had been violent, he replied that he had never been violent, but on one occasion in the course of an argument he had pointed a finger at her, and she had moved into it. He had never pushed her against the wall as claimed. Her evidence that when they were working at the Ritz Hotel they had both been using drugs was totally false; they had been working at the front door, under the cameras.
He had never mishandled any income, and his ex-wife's evidence about the drug episode at Fiji was untrue. It would have been risky to carry illicit drugs through customs. He had never used drugs at the house. As to the showroom, it is on the old Hume Highway; the office there is glazed and could be seen from the outside. He had taken the photograph in the Melbourne motel (exhibit R4) because he was angry when he saw Sharelle using marijuana. She was angry too, and she knew that he was anti-drugs, but he knew she used to use them. He lost trust in her and became more controlling. She had never agreed to a drug test, but he had done so because of her allegations.
The relationship was still strained and he still did not know why she had left. She had said she wanted to destroy his business. The Albury airport contract was still ongoing but he had lost his role as subcontractor. Albury Council required random drug tests. When notified on 9 September 2016 of the respondent's intended suspension of his licence, he organized new arrangements with staff. He had lost a number of clients over the matter, but still had one. The experience had been devastating, as he had lost business and respect. He could no longer do community events. He would be willing to accept conditions if his licence were restored, as in the case of the tribunal's stay. He would still seek his class 1AC licence even if he lost his Master Licence. All his drug tests had proved negative.
[8]
Dr John Lewis
A consultant toxicologist, Dr Lewis provided at the request of the applicant's solicitors an opinion dated 22 February 2017 on whether Duromine or Didrex could have produced a false positive for methylamphetamine (part exhibit A3). His conclusions were as follow:
I am of the opinion that the client should, firstly, find, from the manufacture of the on-site devices, if there is any cross-reactivity of phentermine to methylamphetamine. Cross-reactivity shall be taken to mean, a reaction by a chemically related drug (in this case, phentermine) to the target drug (methylamphetamine). Depending on the percentage of cross-reactivity, it is possible that if the client had taken Duromine, then that medication may have caused the device to record a "positive" reaction. However, it should be noted, that both devices used by the police, would have needed to react to phentermine. If neither on-site device can be shown to react to phentermine, then taking Duromine could not have caused the false positive reaction.
Secondly, the analyst who conducted the test should be asked whether there test was able to unequivocally separate phentermine from methylamphetamine using the LC/MS (liquid chromatography/mass spectrometry) technique.
Thirdly, the client claimed to have taken a supplement containing Didrex. The active ingredient in Didrex is benzphetamine. This is a pharmaceutical preparation used for weight loss. The drug does break down to methylamphetamine; however, it is not clear how much, if any, of the metabolite (breakdown product) appears in oral fluid. Importantly, the preparation does not appear to be available as a prescription item in Australia. I am not aware if the active ingredient, benzphetamine, is present in any gym or other preparation. The client would need to demonstrate that his preparation did contain benzphetamine. If the client has Didrex in a supplement as suggested, then he may be able to demonstrate that it caused the false reaction.
[9]
Other documents
The applicant also tendered a statutory declaration by David Mower dated 13 February 2017 (part exhibit A3) describing discussions with the applicant concerning his various proceedings and his suggestion that the applicant prepare a list of the supplements he was taking and that he should request an expert opinion on the false positive issue. Mr Mower confirms that the applicant uses various supplements in connection with his health and fitness regime.
A statutory declaration by Antoinette Meindse dated 20 March 2017 (part exhibit A3) states that she is the applicant's personal trainer and confirms discussing "various diets and health supplements" with him.
There are also eight separate statutory declarations made in October and November 2016 relating to the applicant's AVO proceedings against Ms Bass (part exhibit A2). They all describe the incidents on 26 March 2016 and 19 September 2016 in which Ms Bass is said to have used coarse and abusive language in the course of a visit to collect the children and in a number of telephone calls.
Also tendered were 10 character references from the following persons (part exhibit A2):
Mark Evans, campus services manager of Charles Sturt University, Albury-Wodonga Campus, 7 November 2016;
Radovan Srdojevic, accountant, 7 November 2016;
Jacqui Finlay, past president of the Albury-Wodonga Football Association (AWFA) and current president of the Riverina branch (undated);
Kiera Hayes, secretary of AWFA, 7 November 2016;
Amanda Wilson, youth development officer of Albury City Council, 3 November 2016;
Bradley Ferris, Albury City Council director of engineering, 4 November 2016;
Ros Wells, events team leader, Albury City Council, 4 November 2016;
Brian Grenfell, director, Zed Bar, Albury;
Michael Davidovic, director, Albury Manor House Pty Ltd (undated);
Sean Barrett, general manager, Ovens and Murray Football and Netball League, 10 November 2016.
The applicant also tendered 12 reports from Dorevitch Pathology dated between 14 December 2016 and 1 March 2017 (part exhibit A3) stating that a number of drugs, including opiates, amphetamine-type substances and benzodiazepines, were not detected.
[10]
Respondent's confidential evidence
On the third hearing date, 19 April 2017, the respondent adduced a quantity of confidential evidence. The hearing was conducted in private pursuant to s 29(3) of the SI Act and non-publication orders were made under s 64(1)(b), (c) and (d) of the CAT Act.
[Not for publication]
[11]
Applicant's submissions
Mr Brock submitted that Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48 was a key case on the issues of what constituted a fit and proper person and the public interest. There was no precise meaning for "fit and proper" and the public interest concept was broad. The respondent had failed, however, to particularize anything against the applicant in relation to public interest. The applicant had a strong record of negative drug tests and his personal affairs did not trigger any public interest considerations. The onus of proof is on the respondent, and cogent evidence is needed.
There were possible concerns about the Victorian laboratory procedures and the potential for a false positive. Dr Perl had not ruled that out, but had said it was unlikely. Nevertheless, individuals metabolized drugs differently and there can be interactions with other substances.
The applicant had not been diligent about prescriptions for Duromine or Didrex, but the reality was that prescription drugs are sometimes shared. Didrex could metabolize into methylamphetamine. As regards Duromine, Dr Perl was not sure that tests could distinguish between phentermine and methylamphetamine, although she had said she would expect that the Victorian laboratory would have had to demonstrate that ability in order to obtain accreditation. In any event, the test said little about the amount consumed, or the frequency with which it was used, or in what circumstances. It was therefore not germane to the issue of fitness and propriety.
Ms Bass's evidence was unacceptable and could not satisfy the requisite standard. First, her credit was debatable as she had broken up with the applicant in acrimonious circumstances. Her complaint to police had occurred after a dispute, and there had been no prior complaints. She had actually said that she wanted to harm him and his business in the 27 October 2016 statutory declaration. There were also financial issues at the time.
A second factor was her own drug use, which meant that the tribunal should view her evidence with caution. The only clear evidence of drug use was the photograph of her smoking the glass pipe. She had said they had ceased taking drugs after their children were born, but later said that he had pressured her to take some, and she had allowed him to use methylamphetamine 100 times, despite the children and the contact order. It was difficult to tell how often she had herself used drugs, as she had initially said it happened on one occasion, but later said three times. The applicant was prepared to take drug tests, and all had proved negative.
[12]
Respondent's confidential submissions
[Not for publication]
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[Not for publication].
[Not for publication]
[13]
Consideration
This tribunal carries out a review of the merits of the original decision, considering all the material taken into account by the original decision-maker, together with any further relevant material, so as to either confirm the original decision, vary it or set it aside and substitute another: "The duty of the Tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which, in its view, was objectively the right one to be made": Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60, 77.
It is commonly accepted that there is no strict onus of proof in tribunal proceedings. In Hardy v Commissioner of Police, New South Wales Police Force [2006] NSWADT 167, Higgins JM explained that "It is well established that proceedings such as these are non-adversarial in nature and that there is no onus of proof in the sense that it applies to other legal proceedings" (at [12]). In the context of licence revocation under the SI Act, however, it has been held that where the issue to be decided is whether circumstances have arisen that would justify licence cancellation or suspension, the onus of proving that such circumstances have arisen devolves on the accuser. In that sense the party alleging that change of circumstances has the onus of proving it: Habib v Commissioner of Police, New South Wales Police Force [2015] NSWCATOD 48, [81].
The standard of proof is the civil standard, the balance (preponderance) of probabilities. That is the case even if the conduct in question may be criminal (Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449). The tribunal is to take into account matters indicating criminal conduct even though the particular offences charged have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account, the tribunal may apply a lesser standard of proof than the criminal standard: Joseph, [60].
The Act establishes a scheme for licensing persons to carry on security activities. The objects of the Act and the public policy served by it were analysed in Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245, [47]:
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 Comissioner of Police, New South Wales Police Force [2005] NSWADT 130. The security industry has a special role in 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.
[14]
Fitness and propriety
The applicant's licences were revoked both on the ground that he was not a fit and proper person to hold the licences and that his doing so would be contrary to the public interest. The question of whether a person is fit and proper in the licensing context has been considered in numerous cases before the courts and the tribunal. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157 the High Court stated that:
The expression "fit and proper person" is of course familiar enough as traditional words when used with references to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty, knowledge and ability…. It is evident that the Commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.
In Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, 65 the Court explained that:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, or whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
It is thus a question of whether the applicant possesses a requisite knowledge of the duties and responsibilities devolving upon him or her as the holder of a particular licence and that he or she is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public as a person to be entrusted with the kind of work that the licence entails: Sobey v Commercial and Private Agents Board (1979) 22 SASR 70, 76. Importantly, as Montgomery JM pointed out in IJ v Commissioner of Police, New South Wales Police Service [2003] NSWADT 230, [27],
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.
[15]
The public interest
The alternative ground for revoking the applicant's licences was that it was not in the public interest for the applicant to hold them.
In O'Sullivan v Farrer (1989) 168 CLR 210, [13], the High Court held that the "public interest" imported a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the legislation might require. In Commissioner of Police v Toleafoa [1999] NSWADTAP 9, [25], which dealt with the revocation of a security licence under the SI Act, the appeal panel described the public interest ground in the SI Act in the following terms:
[A]n inherently broad concept giving the appellant the ability to have regard to a wide variety of factors in choosing whether to exercise a 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 that 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.
The concept does include standards acknowledged to be "for the good order of society and for the well-being of its members": Director of Public Prosecutions v Smith (1991) 1 VR 63. In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681, the High Court said:
The purpose of the reference to public interest is 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 Commissioner's consideration. The effect of the reference is to amplify the "scope and purpose" of the legislation.
In the context of this regulatory scheme, the purpose and scope of the legislation to be amplified is the attainment of a professional and safe security industry, free from persons who engage in unprofessional and irresponsible conduct. Paramount consideration is to be given to public safety: Infarinato v Commissioner of Police, New South Wales Police Service [2004] NSWADT 43, [18]. That being so, the applicant's personal interest in retaining his licence cannot outweigh the public interest in maintaining full confidence in the professionalism of those involved in the industry. Nor should the decision-maker shy from exercising the discretion merely on the ground that the licensee may suffer hardship or inconvenience or both. All the circumstances of the conduct must be taken into account: Hill v Commissioner of Police, New South Wales Police Service [2002] NSWADT 218, [22]; Blisset v Commissioner of Police, New South Wales Police Force [2006] NSWADT 114, [32].
[16]
The confidential evidence
[Not for publication]
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In my view the open evidence alone establishes that the applicant is not a fit and proper person to hold a security licence and that it would be contrary to the public interest for him to do so. [Not for publication].
The decision under review is affirmed.
[17]
Orders
1. The decision under review is affirmed.
2. Pursuant to s 64(1)(b), (c) and (d) of the CAT Act, the recording and transcript of the hearing on 19 April 2017, confidential exhibit CR10 and paragraphs 87, 101, 102, 103, 104, 105, 154, 155, 156, 157 and part 158 of these reasons are not for publication or for disclosure to the applicant.
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
[18]
Amendments
05 May 2017 - Correction of typographical errors
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 May 2017
Parties
Applicant/Plaintiff:
Piniotis
Respondent/Defendant:
Commissioner of Police, New South Wales Police Force
Ms Bass said she had used ice on about three occasions over the last few years. On the first occasion, when she was in Melbourne with her husband, she did not know what it was. After they returned to their hotel room one evening, he produced a glass ice pipe from a bag and a small resealable plastic bag containing a crystalline substance, which she suspected was ice. At that time she had never taken it or seen an ice pipe. The applicant placed some of the crystal substance into the pipe and began smoking it, before handing it to her and saying, "Try this". She was saying that she did not think it was a good idea, but he kept pressing her to take some of it with him, which she did. The second time she used ice was in similar circumstances, and again he handed her the glass pipe for her to smoke, which she did. The third and final time she used ice was again in Melbourne, and again in similar circumstances. She had never used ice on any other occasion and was not currently using any drugs. She had taken it with him out of a desire to please him and not oppose his wishes.
On one occasion the applicant became angrily jealous and abusive when he saw her talking to one of his friends. The next day she took the children to her mother's house, and told the applicant's niece that she was leaving him. He pleaded with her to return, and she told him he had to get off drugs. He replied, "I just want you to come home. I'll do anything to get you and the kids to come home". He began getting drug tested weekly for the following month, and all the tests he showed her were negative. He also discussed seeing a counsellor with her, but decided later not to do so.
She returned home with the children after about two weeks. During the month the applicant was being tested, his attitude and behaviour greatly improved, but subsequently he relapsed, apparently having resumed using drugs. In August 2015, she went on a family holiday to Fiji with the applicant and the children, staying at the Intercontinental Golf Resort. She surprised him in the bathroom of their suite with a glass pipe in his hand. She asked him what he was doing, and he replied "Nothing", then admitted that he was "just having a smoke". She replied, "How could you risk bringing that stuff on this holiday? What if we had got caught and it ruined the kids' holidays?" He said, "It's my holiday too, and I am entitled to have fun". After that incident she decided that the relationship had to end. After the return from Fiji the applicant told her that he had been using drugs, but would give no details. She still does not know how often he was using. There could have been a period during which he ceased using altogether. She believes that because of his business, he has some control over how much he uses, so as to know when he should stop using on certain occasions in order to be able to function. She left him on 30 October 2015, taking the children and moving in with her parents, where she has remained.
During their relationship, they lived together in Mace Court for eight years, and operated a security business together, S and S Piniotis Pty Ltd, trading as Inter City Security Services, which has been in operation since around 1998. Originally a sole trader structure, in 2011 it was changed to a family trust, which was used to manage and disburse earnings from the business. The trust was run for about four years and ceased around 30 December 2014, when it changed back to a sole trader structure, following advice that they could not run a security business as a family trust.
The business provides general security services to various clients in the Albury area, mainly static guard and patrol work. It has been operating successfully and has increased its earnings every year. In the last financial year, 2013 - 2014, she estimates its turnover to have been $1.2 million. Nevertheless, on occasion there was not sufficient money in the accounts to pay wages, as clients had not yet paid their bills, so she would ask him for money and he would withdraw amounts from their home loan, as they had equity in the family home. That said, she estimates that 2013 - 2014 profits were between $100,000 and $150,000.
In the business Ms Bass performed business administration in the form of invoicing, payroll and rosters. The applicant always dealt with moneys received for the business in relation to taxation and superannuation. She really only dealt with staff and clients. When asked to sign any documents as a member of the family trust, she never really questioned it or checked it. She just signed whatever Stephen asked her to. Over the past few years he told her that he was under-declaring the business income to reduce their tax load. He said he needed to increase his expenses and get his earnings down for that purpose. She knew it was the wrong thing to do and told him so, adding that the business had been going well anyway. She worried that they could get into trouble with the ATO and possibly lose significant contracts the business had held, such as providing security services at Albury Airport. She raised this with the applicant on numerous occasions, and he said "If I don't do this, I don't get my lifestyle and my Ferrari". They indeed had an expensive lifestyle and Stephen has a Ferrari under finance, which costs him around $2000 per month.
For the 2013 - 2014 financial year, declarations were made to the ATO that were submitted without her signature. She believes the declarations were submitted some time in November 2015 by the applicant's accountant, Rad ***** of a firm in Wodonga, and that he and Stephen assumed she would simply sign the declarations. The declarations asserted that the trust made about $62,000 in profits and that her income was around $20,000, and the applicant's about $31,000.
She informed the accountant that the declaration the accountant asked her to sign was far from true and that she was not prepared to sign it, and that she wished to seek other advice before signing. She also indicated to the accountant that she believed that as they were separating, he was trying to reduce his earnings in order to avoid paying child support in the future.
In her statement to police, she had referred to a conversation with the applicant at her mother's house on 25 November 2015 when he asked her to sign the declaration, saying that if she did not, he and the accountant would get into trouble. She told him she needed to make further enquiries with her new accountant and would be seeking a settlement for the separation. In that statement she had referred to an incident on 26 November when the applicant had handed her a white envelope at Mace Court containing two pieces of paper: one was a handwritten note which she believed was asking her to sign the tax declaration and had a proposal relating to custody, child support and a settlement. The other was a photograph of her smoking ice through a glass pipe, with a message saying "I don't want to send this to the Border Mail" written above it. She recognized the handwriting on both pieces of paper as being the applicant's.
She believes that the letters effectively demanded that she sign the tax declarations, which was unjustified as they were untrue. She believes the picture of her smoking ice with the comment about the Border Mail was a threat to send that image to the local paper, which distressed her as she did not want people to think she was a drug addict. She had been seriously worried about people she knows seeing the image, as it would damage her reputation, and she believed that signing the tax declaration, which she believed to be untrue, would cause her to get into trouble with the ATO.
She has since spoken with a new accountant, Alan ******, who has advised her not to sign the declaration. He has told her that the records indicate that the applicant has been disbursing the majority of the business income to her, although she had never actually received the money in any of her bank accounts and believed she had not spent the greater part of their income. The whole thing has left her frightened and upset. She has been afraid that the applicant might become violent and physically harm her, arrange for someone else to hurt her, or show the picture of her using drugs to other people and portray her as a drug addict.
In oral evidence in chief the witness said the applicant used to obtain Duromine by having his brother James, who was taking it for obesity, obtain a prescription for him. The last time that happened was about four or five years ago.
The photograph of her smoking ice (part exhibit R4) was taken three or four years ago. At the time the applicant was there and using the drug, and also supplied it to her. The only three occasions on which she had used ice were all in Melbourne, at a time when they were travelling to Melbourne about every three months, mainly for pleasure. She had refused to sign the tax declaration that had been falsified by his accountant, attributing half of the business income to her. She had telephoned police about the incident from her sister's house.
The spouses lived together at Mace Court for nine years. The applicant's Victorian driver's licence gave his address as being at Reservoir, Vic., where his mother lived, but he is a New South Wales resident. He used drugs hundreds of times, from when they had first met. He took ecstasy, cocaine, amphetamines and ice, but mainly ice. He had supplied drugs to friends, according to what she had been told, but did not do so in front of her. She had verbally abused him, but she was upset at the time and wanted to obtain some money for the two children. Initially he was paying only small amounts, but after she obtained a child support order he was to pay $1000 per month, but is currently between $3000 and $4000 in arrears.
In cross-examination the witness said she did not know how often he had used drugs, but thought it was hundreds of times, having frequently seen him taking drugs at the nightclub. After the children were born he had told her he had ceased using drugs, but she had seen from his behaviour that he was still doing so. She had seen bags of ice and pipes in the house. She had pleaded with him to stop, but he was unable to do so. The shed where he would take drugs was located in Wagga Road, which was a showroom for the American antique cars that he imported. It has a glass front, but there is an office out the back. She had found an ice bag in his tool trolley at the shed. He would spend much time at the shed, returning between 9 and 10 PM. Asked whether she knew what the contents of the bag were, she said there were crystals in it but while she did not have them tested, it was obvious what they were. He had said that someone else had given it to him.
Currently there are consent orders in force relating to custody of the children. They have equal shares of custody. The children are to live with her and he has them every other weekend. The orders have been in force since August 2016, to remain in effect until February 2017. She had agreed to the orders, although she harboured some concerns. She intended to seek a drug testing condition in the final orders. She agreed that all the drug test results she had seen were negative and that in April 2015 she had refused his request to take a test herself, but that was because she only used the drug three times. They had both used other drugs at the Ritz in 1999 - 2000, however. All the club staff were doing so, but she would not participate now.
Mr Brock put it to her that when she reported exhibit R4 to the police, she had told them she had used ice only once. She replied that she thought she had said three times, but obviously she had not. She had not used ice as an aphrodisiac. The applicant had carried drugs on the holiday visit to Fiji and she had seen him there with a pipe. She thought the last time he had used ice was in August 2015.
She had confronted him about his relationship with a woman named K** S****, but there had been no arguments about her, and it had not been a source of tension until after their separation. The witness said she was no longer angry and was not making use of the present proceedings to destroy him. She was giving evidence on summons and had not chosen to do so. She agreed that she had threatened him when she was angry. He seemed to be getting on with his life, with a new girlfriend and driving a red Ferrari.
She was then referred to the statutory declaration of David Mower dated 27 October 2016 (exhibit A2, tab 24) concerning a gathering at the applicant's house on 26 March 2016 during which the deponent said that there had been numerous abusive and threatening telephone calls from Ms Bass, witnessed by himself, by John Sinadino and by Anastasia Piniotis (who also provided declarations). She replied that they were all false, although Mr Mower's earlier declaration was accurate.
As regards her concerns relating to the company (exhibit A1, p 61), she reiterated that she had done all the business's accounts except tax, for which the applicant was responsible. She did have access to the operating account, which showed how the company's business was going. She had trusted the applicant and had signed for that reason, as he had said everything was under control. She did not herself earn anything, although she was able to use the company's credit card to buy provisions and clothing for herself and the children. No money was paid into her own account. The applicant attended a gymnasium and took protein supplements and Duromine, as he wanted to lose weight. In re-examination, she said she did not know when he had last taken Duromine.
The hearing was then adjourned at the applicant's request (and over the respondent's objection) until 20 March 2017.
There is no "dietary supplement" containing Duromine (phentermine).
Duromine is a brand name for the drug phentermine. It is a medication requiring a doctor's prescription that is used for the short-term management of obesity in combination with diet, under the strict supervision of the prescribing doctor. Mr Piniotis had not provided any indication or evidence of the drug being prescribed to him by a doctor or when it was prescribed.
The Internet blog that he provided refers to false positive results due to phentermine on urine screening tests that are used in workplace testing. These urine screening tests are all immunoassay based. As indicated earlier, immunoassay tests look for a class of drug and any drug with a similar portion in its structure can result in a false positive test. The sample obtained from the applicant was oral fluid, and although the immunoassay based oral fluid screening test could have also resulted in a false positive, no charges are laid by police until a sample of the oral fluid is confirmed, using the specific drug testing methods employed at an accredited laboratory.
Dr Perl would not consider the results of the hair testing (sample obtained in January 2016) since the hair sample was obtained and analysed months before he was stopped for the oral fluid test in May 2016.
In oral evidence Dr Perl confirmed that Duromine is not detected as methamphetamine. The confirming reanalysis is very specific and cannot be mistaken. Duromine is available on prescription only, for short-term use under close supervision. Only a confined group of patients can use it, persons with no heart problems. It is for weight loss only. If mixed with other drugs such as Viagra, it would increase blood pressure adversely. It is a central nervous system stimulant that causes insomnia. Truck drivers on long-distance routes are known to misuse it in order to remain awake. Since methylamphetamine has become more common, drivers now tend to use it instead because it is much stronger. It is also known as "ice" or "crystal meth".
Referring to the applicant's statement in his statutory declaration of 2 March 2017 (part exhibit A3, para 3(f)) that he had purchased Didrex over the counter from a chemist in Bangkok for weight loss and had taken one pill on the morning of 20 May 2016, several hours before the roadside test, Dr Perl said that Didrex is not available in Australia. According to the pharmacopoeia, it is not legal in Thailand, but it is permitted in the United States. Roadside sampling is based on saliva. The test on site gives a response and the sample is sent to the laboratory. When the drug is absorbed into the saliva, it is broken down into metabolites that include 2 percent methamphetamine. At a low level, it may not be detected. The roadside test is an immunoassay that will detect ecstasy, methamphetamine and amphetamines.
The laboratory detection limit of 25 nanograms could not be produced by one Didrex tablet. It would not be expected that any of the methylamphetamine produced would be of a high enough concentration to generate a positive result. The fact that he said he had taken the Didrex tablet 6 hours before driving gave more confidence to her conclusions, as the test was even less likely to detect it.
In cross-examination Dr Perl agreed that the test did not show how much methylamphetamine had been ingested, only that it was present. It is necessary only to show the presence of the drug, not the quantity or the level of impairment caused. While it does not permit such conclusions, it does indicate a high level, at the upper end, even for a therapeutic level. It was true that people do metabolize drugs differently. But a 2 percent metabolite would not produce a detectable level of methylamphetamine.
Although Didrex is not legal in Thailand, in practice it might be available, as in Australia. But if obtained in that way, it might not be the real thing. The laboratory tests used involve the identification of molecular weights, and is very sensitive. If a plastic blood vial had been used, drug levels could be reduced, but not in the case of methylamphetamine. These days there was very little scope for human error. It would not have been possible to obtain a 25 ng reading from one Didrex tablet. Asked if taking Didrex over a two-week period would increase the levels observed, Dr Perl replied that it would depend on how much the subject was taking. If he followed the manufacturer's directions, a positive result should not be produced. There would be no buildup of levels because use was sporadic. The most relevant factor was the tablet taken on 20 May. Nevertheless she had no reason to change her conclusion that there would be no detectable level of metabolites.
In re-examination Dr Perl stated that if the applicant had taken four Didrex in four days, there would not be a positive result as one tablet per day would not be detectable.
In February 2016 he began dating K** S**** G*****. Sharelle became upset and on 5 March 2016 she telephoned him and abused him for having a new girlfriend. Later a voice message was recorded that said "Steve, as you took a lot of photos, if you think I didn't walk through that office and take photos of absolutely every document before I left, then you're a bit mistaken. I was a lot ahead of you, let me tell you. So, if I was you, I'd keep me f******g happy and I'd keep that whore away from my children. Because if I find out she's anywhere near my kids - and they will tell me - then I will make your life hell, and I will ruin and bring down InterCity Security and every staff member that works for you - with the absolute truth, because I'm not the one doing illegal things, you are, and I've got documents to prove it. I've got a lot of photos, just like you had a lot of photos".
He felt threatened and intimidated by the message, which he believed was intended to prevent him from seeing his new girlfriend. He also felt that she was going to mentally harm their children by asking them to spy on his relationship. On 26 March 2016, Sharelle called him six times between 8:43 am and 9:23 am. The first three calls were witnessed by John Sinadino and Anastasia Piniotis (his mother), as Sharelle was on the speaker phone. During the third call she made the following threats: "You took that slut to a restaurant again and you spent my money and the kids' money on her. You give me $75 a week. I want $500 a week off you or I will bring Inter City Security down. I will destroy your business. I told the kids about you and K** S****and I'm not bringing them around. Tell your mum and your family they will not see the kids". His child support payment at that time was approximately $75 a week [for each child], but he felt Sharelle was demanding $500 a week, and if he did not pay, then she would carry out her threat to destroy his business.
He was so distressed by the demands and threats that he phoned a personal friend, Mr David Mower, and asked him to come over to his house. He arrived within 30 minutes and a written record of the calls was prepared. There were a total of 21 telephone calls or attempted calls from Sharelle during that day. David Mower continued to sit with them and recorded the calls as they occurred. In late August 2016 he began dating his new partner, Ms Tracey Scammell. Sharelle once again became upset because he had commenced a new relationship on 19 September 2016 an altercation occurred when Sharelle arrived 10 minutes early to collect the children in accordance with the Family Court orders. He believes that her conduct frightened and shocked all the children present. That was the first time Sharelle had seen his new partner Tracey with him, and he feared that her use of foul and abusive language could intimidate her and make her and her children feel unsafe if they continue to have a relationship with him. On 25 September 2015, Sharelle applied to vary the AVO against him, claiming that he had been spying on her, which he denied. Later that day, she made another call, which was answered by their daughter, in the course of which she asked numerous questions about Tracey. He believed that Sharelle would harm their children emotionally by continually pressuring them to act as her informants or agents as she attempted to interfere in his relationship with his new partner. This statutory declaration constituted the grounds for an AVO he was seeking against Sharelle.
The next statutory declaration, dated 15 November 2016, sets out in considerable detail the applicant's extensive, and apparently successful, experience in a wide range of industries, and in particular the growth of his security company in the Albury-Wodonga region, and his cooperation with New South Wales and Victoria police. He has also conducted a small business operation in the importation of vintage car bodies from the United States, as he has a particular interest in classic cars. He states that he is happy these days with his new partner Tracey and their total of six children.
A further statutory declaration dated 14 November 2016 details continuing disputes concerning the AVO, child support and custody. It adds little to the evidence relevant to the issues in the present case.
The next statutory declaration is dated 13 February 2017 (part exhibit A3). It relates how he denied using methylamphetamine at the time of the drug-driving test by Wodonga police and informed the police at the time that he took gym supplements only and asked them if they could cause a false positive reading. Specifically, he said to the police that "I use gym supplements, including a booster and Duromine for weight loss". The booster he referred to was DHEA 50 mg capsules. He specifically mentioned those substances at the time because he knew both of them to be prescription substances. The other supplements he took as part of his fitness regime were all available over the counter and he did not consider that they might be important.
When he returned home from the roadside test, he conducted an Internet search that revealed that the booster, DHEA, was a steroid-type substance and does not produce false positives for methylamphetamine in roadside tests. The search also revealed that Duromine does in fact often produce false positives for methylamphetamine in roadside tests. On that basis he believed that it must have been the Duromine that produced the positive reading and did not consider whether the positive result might be caused by any other supplement that he was taking at the time of the test.
He was confused by Dr Perl's expert opinion stating that Duromine could not produce a false positive in the laboratory test, and began to consider if there was some other source for his positive test result. He also began to question if one of the other gym supplements that he was taking at the time might be the cause of the positive result. He then sets out a list of eight "Gym Supplements" including various nutrients and also Duromine and Didrex.
He continued: "I understand Didrex is a brand name for the drug Benzphetamine. Further research and a preliminary informal advice from a Pharmacologist suggests that Didrex may be the cause of the false positive as I understand that Benzphetamine metabolises to methylamphetamine… A formal report from a suitably qualified pharmacologist/toxicologist is yet to be obtained".
The applicant's statutory declaration of 2 March 2017 (part exhibit A3) adds further information in relation to his list of "supplements", including Duromine, as to which he said he had used his last tablets in the days before the roadside test on 20 May 2016 he used the product for weight loss. He took one pill on 18 May, and the final one on 19 May. He had believed that this product was the source of his false positive, so he did not use it further.
In para 3(f),he deals with Didrex:
I obtained Didrex over-the-counter from a pharmacist in Bangkok, Thailand, during a short holiday in April 2016, the month before the roadside test. I told the pharmacist I wanted something to help me with weight loss and he recommended Didrex and sold it to me over-the-counter. I had never heard of Didrex before and because it was simply sold to me over-the-counter it did not occur to me that there may be any problem with its use in Australia. I simply thought it would be available over-the-counter here. After I returned to Australia, I commenced taking Didrex regularly as part of an effort to lose weight. I recall that I took one pill of Didrex on the morning of 20th May 2016, several hours before the roadside test. I then consumed the rest of these pills during the following weeks to help with weight loss. During this time I believed Duramine to be the cause of the roadside test result and, because I had obtained Didrex over-the-counter, I did not consider it likely to be a cause of the positive test result. Subsequent "Internet" research suggests that the active ingredient in Didrex is benzphetamine. Further research suggests that when benzphetamine is metabolised by the body some by-products of that process are amphetamine and methylamphetamine.
In cross-examination Mr Piniotis was asked about the statement in his 15 September 2016 declaration that he had 25 permanent staff. At that time, he said, he had no full-time staff, but only casuals. They were mainly employees, with some subcontractors. Now he had only one permanent client left, Wodonga City Council, and none in New South Wales. He had lived at Glenroy for 10 years, following their purchase of some land there and the construction of their house. He spends some time at Reservoir, Vic., with his mother. His driver's licence had always been a Victorian one, and he had never changed it. He agreed that he had told police that he lived at Reservoir, but he had also given them his postal address.
He had obtained the Duromine from his brother in early 2016. His brother had offered it to him because he knew he was depressed and had given him a packet and a handful of tablets. The applicant said he was aware that a prescription was needed. He had used most of them before 20 May, often on the day after he had had a large amount to eat. When it was put to him that his ex-wife had said he had obtained the drug from his brother while he was living with her, he said that evidence was false. He was unaware that his brother's last prescription for Duromine had been issued in 2014, but he had used Duromine and Didrex before 20 May, although he had known nothing about either drug. He had raised the question of the Didrex on learning that Dr Perl had said Duromine could not produce a false result. He had therefore thought that the cause must have been another substance and had looked into the matter.
When it was pointed out to him that his statutory declaration of 2 March 2017 did not say that he had used Didrex in Thailand, he replied that he had also used it in Thailand but was not sure how many. But he thought it was about 8. He had been overseas for between 12 and 13 days. He had 1 or 2 Duromine left in Australia and had taken them after his return, as well as one Didrex a day, but not every day. All the tablets were mixed up together in one container. He had not changed his story after reading Dr Perl's certificate. He had taken Didrex from April to 20 May, but had only searched for information about Duromine because he had obtained the Didrex over the counter. He denied having made up his statements about Didrex.
It was then pointed out to him that his wife had said he was a regular drug user. He replied that when he was young, he had experimented with marijuana and ecstasy, but had decided that drugs were not for him. He still did not know why Sharelle had left him, but said she had received psychological treatment. Her statement dated 26 November was fabricated.
Some questions were then put to the witness about exhibit R4, subject to a certificate under s 128 of the Evidence Act. He agreed that the handwriting on it was his, but said her statement to police on 26 November 2015 was a false statement. She had left on 2 November. At the time he did not know what the glass pipe she was smoking was as he had never seen one in real life. He took a video so that he would be able to ask her later why she was using an illicit substance, so that she could not deny it. As drugs have the effect of changing her persona, he had concluded that she was using at the time. He had been in the bathroom of the motel room when he took the video, and she did not know he was there. He was upset, but did not want to raise the issue with her at that time because they had to collect the children and it would have caused chaos. He had confronted her about it the next day.
Tax had nothing to do with the dispute. She had been keeping him away from the children and making ludicrous demands for money. He had offered her more than she was entitled to and had never asked her to sign anything. She had to sign her own tax return, but that was all. He had been asking her for 50 percent access, but she had walked out of a mediation.
When asked if the photograph constituted a threat, he replied that he was entitled to 50 percent access. Sharelle had been using drugs, which had been causing mood swings. It was not a threat, he had simply wanted her to stop using. It when it was put to him that exhibit R4 did not say that, he replied that the picture did.
It was then put to him that his email of 2 November 2016 requesting character references (exhibit R7) told the intended referees nothing about the circumstances of the revocation of his licence. It had simply said "As you may be aware, there has been a review taking place in relation to my Security Industry Licences in recent months. I am requested to present supporting documentation in relation to my 20 years service in the industry". That, he said, was because he did not know what type of reference was needed. He had used the word "review" because English had not been his best subject at school. When Mr Zoppo pointed out that 'review' was not the same as 'revocation because of failing a drug test', he replied that he had still not been convicted on the drug driving charge. He had never used "ice", despite what Sharelle had said in her 9 December 2015 statement to police (exhibit R1, pp 53ff).
In that statement (para 37) she had said that he had asked her to sign the tax declarations, which she had been unwilling to do as they were untrue. He stated that she had never had to sign any documents relating to tax for the business. She had been confused. He had never asked her to sign any business documents and she had never received half the income of the business.
In para 3 of his email of 12 September 2016 to Peter Giorgiou, manager of the SNP Security Albury airport branch, which (as SNP's subcontractor) was 95 percent of the applicant's business (exhibit A2, tab 44), he had written "I have today provided my solicitor Mr Graham Lamond with evidence that I was taking the weight loss medication Duromine (phentermine) on prescription from a doctor at the time of the test". He admitted that statement was false but said it was a typing error and he should not have said it.
As regards exhibit R7, he said in re-examination that when he wrote "review" he had been referring to the respondent's ongoing internal review of his licence revocation.
Further, her description of the Fiji episode was incredible, as was her account of drug use at the garage, which was a showroom. Her evidence that he had supplied methylamphetamine to others was hearsay. Although his brother's last prescription for Duromine was in 2014, he could have given the applicant his leftovers. The business had been doing well until Mr Piniotis's licences had been revoked. There is no evidence that his work in the security industry had ever been compromised. Her evidence was uncorroborated, whereas his was corroborated.
Mr Piniotis had worked in Albury since 1996 and there had been no prior complaints against him or his employees. He had received a police appreciation award and was a gold member of the security industry association.
He had explained his original non-disclosure of his Didrex use on the basis that he had not thought it relevant because he had not required a prescription for it. The test on 20 May 2015 does not constitute an ongoing issue as the applicant's drug use has stopped. His email requesting references in connection with a "review" was expressed in that way because an internal review was in fact in progress. In any event, that word appeared only in one email. The references show his community service and customer testimonials. They bear witness to the trust in which he is held.
There was a lack of evidence to discharge the onus of showing that he is not a fit and proper person, but there is much evidence of his hard work. He is willing to accept conditions on his restored licence. As regards the public interest, it is significant that his services have been at the Albury airport and Charles Sturt University. He has also provided employment in the Albury-Wodonga district.
In reply the respondent argued that the referees who wrote letters of support for him might not have been aware of the drug test or the revocation of his licence. There was no acknowledgement of those matters in the references. As regards the use of the word "review", it was necessary to look at the entire email. It was well expressed and showed no signs of being rushed. Describing the proceedings as a "review" must have been deliberate.
Ms Bass had committed to a version of the events that is consistent with the evidence. The letter from the applicant and the accompanying photograph were the trigger for her complaint to police. The evidence was consistent with her detailed statement of 9 December 2015.
The applicant had undertaken drug tests that proved negative, but the one test that he did not himself arrange, he had failed. When he undertook the other tests he was under an interim order, so he expected to be tested and consequently would avoid using drugs at that time.
The hearing on 20 March 2017 was extended to 5:15 pm in an attempt to complete the matter, but without success. The matter was therefore again adjourned part heard (to 19 April 2017) for the purpose of taking confidential evidence and hearing confidential submissions.
The tribunal has also held that the Commissioner's discretions should be exercised in such a way as to promote the objects of the Act: Cusumano v Commissioner of Police, New South Wales Police Service [2001] NSWADT 50, [23].
The same point was made in Haining at [22]. As one of the objects of the Act is to regulate security activities, licences are conditioned on the overriding need to ensure public safety and the protection of property. The Act was designed with the 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, New South Wales Police Force [2007] NSWADT 114, [11].
The respondent's evidence on the "fit and proper" question is essentially in two parts: the evidence relating to the drug test on 20 May 2015 and the evidence of Ms Sharelle Bass.
As regards the drug test, it is not disputed that the applicant failed a roadside drug test on 20 May 2015 and was issued with an infringement notice. It is clear that a confirmatory analysis carried out by Dr Mark Chu, a forensic toxicologist and approved analyst at the Victorian Institute of Forensic Medicine at Monash University on or about 4 July 2016 detected the presence of methylamphetamine in the sample of oral fluid collected from the applicant (exhibit R8). The applicant has not been convicted of the drug driving charge, having maintained from the outset that the result must have been a false positive as he had not used methylamphetamine before the test. His trial on the charge is to be heard in the Victorian Local Court on 28 June 2017.
The applicant had provided a statutory declaration denying the use of methylamphetamine in May 2016. He stated that at the time he was taking a "dietary supplement" containing Duromine to lose weight. Dr Perl was asked to prepare an expert certificate on that question, and also gave oral evidence.
Dr Perl stated that there is no "dietary supplement" containing Duromine, which is a brand name for phentermine. It is a medication requiring a doctor's prescription that is used for the short-term management of obesity under strict medical supervision. Only a confined group of patients is able to use it. Mr Piniotis had provided no indication or evidence of the drug being prescribed for him by a doctor.
The witness said that the confirmatory testing at the Institute of Forensic Medicine was high-performance liquid chromatography with tandem mass spectrometry (HPLC/MS). Using that dual method, Dr Perl would have confidence in the confirmed presence of methylamphetamine. Duromine is not detected as methamphetamine as the re-analysis is very specific and cannot be mistaken.
In one of his later declarations Mr Piniotis had said he had purchased Didrex over the counter from a chemist in Bangkok and had taken one pill on the morning of 20 May 2016, several hours before the roadside test. Dr Perl said that Didrex is not legally available either in Australia or, according to the pharmacopoeia, in Thailand. Dr Perl said that when Didrex is absorbed into the saliva, it breaks down into metabolites that include 2 percent methylamphetamine. The laboratory detection lower limit of 25 ng/ml could not, however, be produced by one Didrex tablet. It would not be expected that any of the methylamphetamine produced would be of a high enough concentration to generate a positive result. The fact that he had taken the Didrex tablet 6 hours before driving gave more confidence to her conclusions, as the test was even less likely to detect it. Even if the applicant had taken four Didrex in four days, there would not be a positive result as one tablet per day would not be detectable. There would be no buildup of levels because use was sporadic. While the test did not show how much methylamphetamine had been ingested, it did indicate a high level, at the upper end even for a therapeutic level. Although people do metabolize drugs differently, a 2 percent metabolite would not produce a detectable level of methylamphetamine. Dr Perl saw no reason to change her conclusion that there would be no detectable level of metabolites from taking Didrex.
The 22 February 2017 opinion by a consultant toxicologist, Dr John Lewis, who was asked to advise whether Duromine or Didrex could have produced a false positive for methylamphetamine is very tentative and basically does little more than suggest further lines of inquiry for the applicant. He acknowledges that Didrex does break down to methylamphetamine, but says it is not clear how much, if any, of the metabolite appears in oral fluid.
Dr Perl's evidence was thus not disturbed or damaged in cross-examination, or significantly doubted by Dr Lewis's opinion. I therefore find on the preponderance of probabilities that the confirmatory laboratory test results were correct and that the applicant at the relevant time was driving with more than the prescribed level of methylamphetamine.
As regards Ms Bass's evidence, the applicant impugned it on the ground that during their marriage breakup she had threatened to destroy him and could not be regarded as a witness of truth. Her evidence was also uncorroborated. Ms Bass admits having used abusive and threatening language to him during that period, apparently in connection with child support and his bringing K*** S****into contact with the children, but says she is no longer angry and is not using the present proceedings to destroy him. She points out that she did not seek to give evidence against him (she did not prepare a witness statement, the respondent relying on her contemporaneous statement to police) and gave oral evidence only on summons.
It is well known that in circumstances of an acrimonious divorce, even well-meaning people can give way to the temptation to exaggerate, to attribute improper motives and to see wrongdoing where there is none. On balance, however, her evidence appears to be essentially reliable. She freely admits her own misdeeds. Although uncorroborated by open evidence (except by the video still shot in exhibit R4), her evidence has a degree of particularity and verisimilitude that makes it broadly credible. It is to be preferred to the applicant's evidence, inter alia for the reasons set out below.
The main relevance of Ms Bass's testimony is her account of the applicant's alleged use of prohibited drugs over a long period. She stated that when they were both working at the Ritz Hotel (now called the Bended Elbow) in Albury in about 2001 they had both used amphetamines and ecstasy, as well as alcohol as, she said, everyone else at the hotel was doing. They had ceased using when they came to have a family.
Mr Piniotis denied that episode altogether, saying that they were working at the hotel's front entrance under the cameras and could not have used drugs in those circumstances. Even if they had been working at the front entrance the whole time, however, that would not preclude the possibility of other opportunities to ingest amphetamines and ecstasy, particularly in oral form, at the hotel.
The next incident occurred when they were visiting a friend's house in Melbourne and Ms Bass was later told by her friend's husband that Mr Piniotis had been smoking "ice" with one of the other persons present. She was not particularly concerned about it because she did not see him using drugs on that occasion and thought that if it happened, it was an isolated incident. The evidence on that point is, however, wholly hearsay and I prefer not to give it significant weight.
After their second child was born in 2011 she noticed a deterioration in his mood. He was spending more time at his "shed" where he used to restore classic cars, and where she saw him associating with known drug users. In 2013 she found a small resealable plastic bag containing a crystalline substance at the shed. She spoke to him about it and he said it belonged to one of his friends, but because of his behavioural changes she was becoming suspicious that he was using the drugs.
The applicant's response to that evidence was that as the shed was a showroom containing an office (presumably a sales office) behind glass partitions, it would be impossible to smoke methylamphetamine there without being observed from the old Hume Highway in front. But he did not deny that he conducted repair and restoration work on classic cars at those premises, and it would be unlikely that he would do so in a showroom. There would presumably have been a workshop at the back, and it is common for commercial workshops to incorporate a small enclosed office. Ms Bass's evidence about the shed and finding a packet of a crystalline substance there was given on the first day of the hearing. In the long interval before the part-heard adjourned date, the applicant had ample opportunity to take photographs of the premises if he had been in a position to contradict her testimony, but no photographs, or a diagram, were tendered.
On one occasion they were talking about drugs one evening and Mr Piniotis told her that using "ice" was "No different to having a beer or a glass of wine". When she remonstrated with him over the possible prejudicial effect of a drug arrest on the children, he replied "I'm not a dealer. They only come after dealers". That was an implicit, but unequivocal, admission that he was using methylamphetamine.
Ms Bass admitted that she had herself used methylamphetamine three times while on visits to Melbourne. On each occasion it was at the applicant's urging. He would produce a glass pipe, place some of the crystalline substance in it for her and encourage her to partake of it, at the same time smoking it himself. Although she knew it was a bad drug, she acquiesced in order to please him.
The applicant denied those incidents, as he maintained he had never taken methylamphetamine at all. He said that the picture of Ms Bass smoking a glass pipe (part exhibit R4) was taken during a visit to Melbourne when they had been staying in a motel. She had been smoking marijuana, and as he was opposed to all drugs, he disapproved of her action and wanted the picture as proof with which to confront her so that she could not deny it. He did not know what a glass pipe was for, never having seen one in real life. He had taken the video from the motel bathroom when she was unaware that she was being filmed. His intention had been to raise the matter with her the following day, as he did not wish to provoke an argument before they had to go out to collect the children.
That denial is not credible. Mr Zoppo submitted that it was "laughable". The picture appears to have been taken at short range, perhaps a metre or a little more, and not surreptitiously from a motel bathroom. And while it is presumably possible to smoke marijuana from a glass pipe, as a matter of common knowledge that is not the usual way of ingesting cannabis. Methylamphetamine or some similar drug is much more likely to have been in use. Further, his claimed diffidence about commenting on the matter at the time seems greatly out of character.
His hand-written note on the picture stating "I don't want to send this to the Border Mail" also conflicts with his denial, as it depicts an attempt to secure her cooperation by means of a threat, rather than an attempt to dissuade her from using marijuana. It is also evidence in itself of conduct tending to show that the applicant is not a fit and proper person to hold the licenses.
After a major argument in April 2015 Ms Bass left home with the children and went to stay at her mother's house. He pleaded with her to return, and when she declared that "You've gotta get off these drugs", he undertook to take drug tests. She did not remember whether she had asked for it or if he had offered, but he took tests weekly for the following month, all of which proved negative. That does not, of course, prove methylamphetamine use at other times, but it does tend to show that if he was using the drug, he had some control over the habit and his consumption was intermittent. It is also supported by Ms Bass's evidence that she did not know how often he had used drugs but that he was able to abstain when business commitments required it.
The witness also described an incident during a family visit to Fiji in August 2015 in which she came upon the applicant standing in the hotel bathroom with a glass pipe in his hand, which he quickly placed in his pocket. When she challenged him over it, he said "I was just having a smoke" and "It's my holiday too and I'm entitled to have fun". The applicant categorically denied that occurrence, adding that it would have been too risky to try to carry prohibited drugs through customs. Ms Bass's account, however, seems the more probable one.
As has already been indicated, there are a number of reasons for preferring Ms Bass's evidence to the applicant's. One is his demonstrated propensity to take liberties with the truth. He repeatedly describes Duromine (and later Didrex) as a "dietary supplement" or a "gym supplement" as if it were something like a vitamin pill, but Dr Perl explained that there is no dietary supplement containing Duromine, that it is available only on a doctor's prescription for the short-term treatment of obesity under close medical supervision and only a limited class of patients is able to take it safely. Didrex is not available legally in Australia at all.
In his 12 September 2016 email to Peter Giorgiou he states that he had been taking Duromine "on prescription from a doctor at the time of the test", an assertion which he admitted in cross-examination to be false. He claimed, however, that it was a "typing error". The proposition that "on prescription from a doctor" could be a mere typographical error is too absurd to require refutation.
Similarly, his email of 2 November 2016 requesting character references stated that there had been "a review taking place in relation to my Security Industry Licenses". He gave evidence that he had used the word "review" because English had not been his best subject at school, but that is inconsistent with the fact that the rest of that email is clearly and grammatically expressed in the style that one would expect of a business manager. His explanation that he had been referring to the respondent's internal review and that he had not mentioned the licence revocation because he had not been convicted on the drug driving charge is prevarication. The applicant was plainly attempting to mislead the intended referees, an attempt that seems to have been successful, as none of the references displays any hint of awareness of the true facts.
A number of other evasions and implausible denials might also be mentioned:
His claim that the injury to his wife's lip, causing it to bleed, resulted when he had been pointing his finger at her and she had walked into it seems improbable.
His explanation for his failure to mention Didrex in his earlier statements, or that he had used it in Thailand was that he had purchased the preparation over the counter and could not remember how many he had taken in Thailand is difficult to reconcile with his admitted regular use of prescription drugs without a prescription. The assertion that he could not remember how many he had taken in Thailand was not responsive to a question about why he had previously not mentioned Didrex. The Didrex account has much more the air of a later invention.
His 15 September 2016 statutory declaration stated that he had 25 permanent staff, but he admitted in cross-examination that at the time he had only employed casuals, and no full-time staff. The casuals were mainly employees, with some subcontractors. But the claim that he had 25 permanent staff, implying full-time staff, was misleading.
Ms Bass's account of the Fiji drug-taking episode is specific and includes credible details. The applicant's denial on the ground that it would have been too risky to take drugs through customs is insufficient, given the abundant evidence of his risky behaviour with drugs in other contexts.
His failure to produce any photographs, or even give a detailed description, of the workshop and showroom despite the issue having been squarely raised on the first day of the hearing casts doubt on his denial of Ms Bass's evidence about his drug-taking in the workshop.
His explanation of the photograph in exhibit R4 and the incident that it depicts is implausible on a number of levels. His claim that he did not know what the glass pipe was for but thought it contained marijuana seems dubious in light of his own admitted earlier experience with drugs. His claim that he took the video because he was reticent about raising the question of his wife's drug use at the time conflicts with the evidence portraying his forceful, and at times aggressive, personality. His claim that the note on the photograph stating that "I don't want to send this to the Border Mail" was not a threat but an attempt to dissuade her from using marijuana is not credible. Nor did the picture show that he was not making a threat, as he attempted to claim; that assertion was quite meaningless. The note cannot have been anything other than a threat.
I am therefore satisfied that the saliva test showing more than the prescribed level of methylamphetamine in the oral fluid was correct and that the applicant had used the drug on that day. I am also satisfied that he has a long history of illegal drug use but has mendaciously denied it. His use seems to have been intermittent and he has some ability to control it, notably when he is aware that he is liable to be tested, or when business commitments require it.
A number of subsidiary matters should also be taken into account.
At the time of the drug test he told Victoria police that he lived at Reservoir, Victoria, which was untrue as he was a long-term New South Wales resident.
He admits that he had never changed his Victorian driver's licence to a New South Wales licence, even though he was legally required to do so within three months of taking up residence in the state.
He has admittedly habitually used prescription drugs without a prescription.
He attempted to coerce his then wife by means of a threat.
There is also evidence that he engaged in tax evasion, which he denies. As no documentary material supporting that allegation was drawn to my attention, I prefer not to make any finding on the point.
In the applicant's favour are the references from a number of businesses, the university, and others in the district attesting to the high standard of the security services that he has provided. Those tributes are entirely credible as far as they go, given the fact that the applicant's business has flourished. It is also true, as Mr Brock pointed out, that there is no evidence that the services provided were ever compromised by drug use (at least outwardly), and that none of his employees has ever been convicted on a drug charge in the course of employment, or on any other charge.
As against that, by telling his contacts that he needed the references for the purposes of a "review" was a deliberate attempt to mislead, an attempt which, as I have pointed out above, appears to have been successful, as none of the references allude to the drug charge or the licence revocations. The referees' expressions of confidence are also undermined by the applicant's own evidence that he has lost business and respect as a result of these events. The references therefore do not greatly assist the applicant's case.
My conclusion is therefore that the applicant's repeated disregard for the law in relation to drugs and other matters, his willingness to attempt to coerce by means of a threat and his proven lack of credibility show that he lacks the qualities of character needed to make him a fit and proper person to hold the licences in question. In particular, he does not satisfy the higher standard required of persons licensed in the security industry, given its special role in maintaining public order, in protecting property and in ensuring public safety at community venues.
As the discretion must be exercised in light of the activities that the person will be engaging in, the Act's objects and purposes are relevant. They include the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in it are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, New South Wales Police [2005] NSWADT 130. As was pointed out in Haining, the security industry has a special role in ensuring that public order is maintained, and that the public and public venues are safe.
In the present case there is no evidence that the applicant or those employed by him have directly jeopardized public safety, for example through the display of aggressive behaviour. The applicant has, however, shown a disregard for the law over an extended period, in particular the law relating to narcotics. That is particularly relevant to the duties of a security organization, as the availability, distribution or use of drugs frequently presents a problem at certain types of community venues, such as music festivals or, on occasion, sporting fixtures. It cannot be in the public interest for a person with a history of long-term drug use to be given responsibility for detecting or preventing such use at community functions, on a university campus or in other settings, especially those where there may be large numbers of children or young persons.
I therefore find that it is not in the public interest for the applicant to hold either of the security industry licences in issue in this case.