Sharma v Commissioner of Police, New South Wales Police Force

NCAT Occupational|2017-03-16

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 SI Act provides that "The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant…"
Further, s 26(1)(d) of the Act provides that "A licence may be revoked:…. for any other reason prescribed by the regulations". For the purposes of that provision, cl 25 of the Security Industry Regulation 2016 provides that "For the purposes of s 26(1)(d) of the Act, a licence may be revoked if the Commissioner considers that it is not in the public interest for the person to whom it is granted to continue to hold it".
There is no dispute about the applicable law in this case. The controversy concerns the Carousel Inn episode and its consequences for the applicant's security licence.
The issue in this application is thus whether the applicant is a fit and proper person to hold a security licence and, alternatively or cumulatively, whether it is in the public interest for him to continue to hold a licence.

The evidence

The respondent called no oral evidence but relied on the documentary material, including the s 58 documents (exhibit R1), and in particular on the internal review report dated 7 October 2016 (exhibit R1, p 63). That report describes the Carousel Inn incident as follows: CCTV footage of the incident shows your client [the applicant] acting aggressively particularly towards Timothy Kingham (victim two). The footage shows both victims begin to move towards your client. The client is seen to take up a semi-boxing stance and hit out at both victims but in particular to the second victim in a violent manner. The single strike has initially knocked the second victim down and he appears to be unconscious as a result. The single strike to the second victim is considered quite violent in nature. Although police were on the scene within minutes they did not witness your client strike out at victim to in an overly aggressive manner [p 6].
The applicant in oral evidence adopted his affidavit sworn on 3 February 2017 in which he described inter alia his antecedents, including his obtaining a New South Wales security licence in late 2009. In about late 2013, he commenced employment with SS Security and worked at a number of different sites, including Carousel Inn, Vynyard Hotel, Lilly's Blacktown and RG Magee's at Richmond. By 17 June 2016, he had been based at the Carousel Inn for over a year. He worked there between two and four times per week.
In about early 2015, he was working at the Vynyard Hotel. He and another security guard approached two intoxicated men to ask them to leave the premises. As he was talking to one of them, his friend punched him in the right jaw. As a result, he suffered severe dental injuries requiring multiple surgeries and ongoing care. On numerous other occasions when he has been working at various licensed premises, he has been slapped, spat on and threatened.
At about 8:10 pm on 17 June 2016, bar staff had informed him that a male, who he now knows to be Hayden Richards, was inebriated. He approached Mr Richards with his duty manager, Ryan O'Halloran, to inform him that he had been cut off and was required to leave the venue because he was intoxicated and disruptive.
The applicant offered to call a taxi for him, but he rejected the offer. He then said that his cousin (who the applicant now knows to be Timothy Kingham) had his telephone, and told the applicant he was going to get back his phone. The applicant escorted him to the gaming area to enable him to retrieve his telephone from his cousin. Mr Richards kept asking him to allow him to have another drink, but the applicant told him he could not, as he was intoxicated and had to leave the venue.
Mr Richards then asked to use the bathroom, which the applicant allowed. He waited in the bistro area for Mr Richards to do so. When he emerged from the bathroom, Mr Sharma escorted Mr Richards towards the bistro exit. At that point Mr Kingham appeared holding a glass of beer. The applicant explained to him that Mr Richards was being escorted off the premises because of his level of intoxication. Mr Kingham then proceeded to offer Mr Richards his beer.
The applicant informed Mr Kingham that he was not permitted to supply alcohol to Mr Richards, because he was being escorted off the premises and because the area in which they were was one where alcohol was not permitted. He attempted to return the beer to Mr Kingham. Mr Kingham then became verbally aggressive and abusive, and was swearing at him. He also said to his cousin, "Let's show him how we roll". Mr Sharma then told Mr Kingham that he also had to leave the premises, and he emptied the beer onto the floor.
Mr Richards then pushed the applicant with both hands and raised his fists, causing the applicant to stumble backwards. Mr Kingham also leaned forward towards him, as if he was about to attack him. At that point he feared that he would be further physically assaulted and felt it was absolutely necessary for him to defend himself. He was thinking that the two men would gang up and further attack him. Those feelings were particularly amplified as he had previously been injured in similar circumstances in the past by two men. He thought that if he did nothing, he could be injured by the two men. He feared for his safety and well-being.
He moved the glass from his right hand to his left to avoid the glass possibly breaking and hurting someone. He then slapped each man once with an open palm. He believed that was the least force necessary in the circumstances.
Mr Richards continued to attack him, and at one stage had him on the floor. The applicant gained control of him and was assisted by a passing patron and Mr O'Halloran. The applicant restrained Mr Richards until the police arrived. Riot Squad police came to his assistance within a few minutes. When they arrived they arrested both Mr Richards and Mr Kingham. The applicant observed Mr Richards still being aggressive with police, spitting at them and shouting obscenities.
The police then conducted their own enquiries. The police asked him whether he wanted to provide a statement and press charges against the two men. He replied that he did not, and that he simply wanted the men removed from the premises. His reason for doing so was that he could not afford to lose a shift in order to attend court proceedings. It was never his intention to hurt anyone, he was simply trying to protect himself with the least force possible.
The revocation of his licence has had an impact on all aspects of his life, financially, physically, and psychologically. His relationships with friends and family have been strained as a result of the loss of his licence. He pointed out that he does not have a criminal record and has never been charged with any offence. He has had extensive training in the security industry.
In cross-examination the applicant said he had worked in hotels in the western suburbs of Sydney, where people drink and some became intoxicated. He had been slapped and otherwise assaulted before but had never struck anyone. He did not dispute that Kingham appeared to have been knocked unconscious, but said that he had been assaulted before and did not wish to risk it happening again. He did not think he had over-reacted, as he was defending himself. At first he insisted that he had slapped Mr Richards only once, but later conceded that he had slapped him again shortly afterwards because he was kicking him.
He said that he had taken the beer away from Mr Richards and told Mr Kingham to take it, and although Kingham had his hand on the glass he would not actually take it. The whole time he was swearing and aggressive despite the applicant's warning him.
In re-examination the applicant said that he emptied the glass on the floor because he wanted to prevent Kingham from using it on him. The schooner was made of glass. He transferred it to his left hand in case he had to use his right to defend himself. He had previously been struck in such a situation and the ensuing dental work had proved very expensive. He simply wanted to defend himself. There were other guards in the area, about 30 m away or more. When Richards saw his cousin arrive, he became more aggressive and asked to be allowed to stay. Kingham was swearing at him from the start, saying that Mr Richards was his son and he could do whatever he wanted with him, and the applicant could not do anything.
The applicant also tendered an affidavit by Ms Henar Andre Garrido dated 3 February 2017 in which the deponent said she was 23 years old and had been in a relationship with Prabhat Sharma for the last 15 months. On the basis of her experience during that time, she could say that he is a very kind, honest and trustworthy person. He is concerned more about his relationships with people, as opposed to any materialistic values
He has a very calm personality and avoids confrontation. He never raises his voice, but always talks calmly and rationally whenever they have misunderstandings or arguments. He is not a violent person at all. When she first met Prabhat, he was working as a security guard. He loved his job and enjoyed going to work. He was genuinely happy when he was at work. Since his security licence was revoked, she has noticed that he has been very down and unmotivated. Even his roommates, and their friends and family, noticed the change in his mood and attitude, and they all tried to assist and distract him during this time. Ms Garrido was not required for cross-examination.
The applicant also tendered an affidavit by Rashpal Singh dated 1 February 2017 in which the deponent says he is 52 years of age, a Sikh priest, minister of religion and justice of the peace. He has no criminal record.
Mr Singh said he had first met the applicant in 2009 at the Sikh Temple at Glenwood, at a time when Mr Singh was leading a religious musical group. At that time, the applicant was attending the temple to pray. He started a conversation with Mr Singh, complimenting him on the group's musical ability of. From there on they struck up a relationship. Since then they interact and see each other on a regular basis, fortnightly and sometimes even weekly.
He would describe Prabhat as a very good man with a religious faith. He is kind, honest and very respectful to everyone he comes across and interacts with. He befriends everyone and is liked by all. He often volunteers his time to help, not only in the temple at Glenwood, but also the temple at Revesby and other places.
Prabhat had informed him of the incident at the Carousel Inn on 17 June 2016. From all his interactions with, and knowledge of, Prabhat, he can say that he is not violent or aggressive at all. He is aware that the applicant is very passionate about working in the security industry. He loves his job and is very good at it. Mr Singh was not required for cross-examination.

Respondent's submissions

In his written submissions the respondent contended that the correct and preferable decision was to revoke the applicant's license because his conduct at the Carousel Inn went beyond the expectations of acceptable conduct for a security guard in three respects: 1. The CCTV footage shows the applicant acting aggressively, particularly in relation to Timothy Kingham. 2. The footage shows the applicant aggressively throw a beer from a glass and hit out at both victims, in particular towards the second victim, in a violent manner. The single strike to Kingham is so violent that it lifts him off his feet and he appears to be rendered unconscious as a result. 3. Further, while Richards did push the applicant, he backed away before the applicant struck him and then appeared to strike him again while he was behind a pillar.
The Act established a scheme for licensing people to carry on security activities. The objects of the act were significant and had to be considered. They had been outlined in the Legislative Assembly on 12 November 2002 (p 6544) as being "to ensure that high standards of integrity and conduct are maintained within the security industry. Entry to the industry is restricted by the licensing system in order to protect the public interest by diminishing the likelihood of criminal activity within the industry. The tribunal had analysed the objects of the act and the public interest to be served in exercising the discretion to revoke on public interest grounds in Ibrahim v Commissioner of Police, New South Wales Police Force [2009] NSWADT 245, [47], noting that 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.
While the applicant was not charged with the incident, his conduct, rather than any conviction, is the tribunal's concern: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. It was the conduct, rather than the conviction, that was of concern to the tribunal.
The issue of whether a person is fit and proper to hold a licence has been considered in numerous cases, and in the tribunal. They include Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127, 156 - 157, Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11, 65 and Sobey v Commercial and Private Agents Board (1979) 22 SASR 70. In IJ v Commissioner of Police [2003] NSWADT 230, [27] Montgomery JM had expressed the view that "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". In Haining v Commissioner of Police, New South Wales Police Service [1999] NSWADT 6, [41], the tribunal president made the following comments on the issue in the context of the security industry: Whether a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objective leading the legislature to regulate the industry.
One of the objects of the Act was to regulate security activities so that licences were conditional on the overriding need to ensure public safety and the protection of property. The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard: Feuerstein v Commissioner of Police, New South Wales Police [2007] NSWADT 114, [11]. As regards the public interest, the Appeal Panel had held in Commissioner of Police, New South Wales Police Service v Toleafoa [1999] NSWADTAP 9, [25], in relation to the SI Act, that - 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 relevant interest is the interest of the public, as distinct from the interest of an individual or individuals: Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657, 681. In light of those and other cases, the tribunal could not be confidently satisfied that the applicant can be held out to the public to utilise the authority for the good order of society and the well-being of its members in a position where it is entrusted to patrol or guard, watch or protect the public.
The function of a security officer working in a bar is to protect customers and members of the public from intoxicated and, on occasions, violent persons from themselves. Entry is refused if a person is intoxicated or quarrelsome. It is not in the public interest for the tribunal to reinstate the licences that are the subject of this appeal.

Consideration

This tribunal's predecessor, the Administrative Decisions Tribunal, explained the legislative scheme of the security industry legislation in Feuerstein at [11]: The Security Industry Act, 1997 establishes a scheme for licensing people to carry on security activities. Within the Act there are several provisions that allow the Commissioner to revoke a licence. The Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability are provided and maintained to a high standard. The legislation was enacted to exclude from the industry persons convicted of prescribed offences. In this regard, criminal record checks are undertaken on a regular basis after licences are issued to maintain strict licensing requirements by identifying persons who fail to meet the criteria and revoking their licences.
There is no dispute between the parties about the applicable law or its interpretation. The principles governing the security industry regulatory scheme are, in my view, correctly set out in the respondent's submissions that are summarized above. Nor is it disputed that were a security guard to use violent and gratuitous or excessive physical force against any person in the course of his duties, the Commissioner would be justified in revoking his or her licence. The controversy, therefore, is entirely one of fact.
The respondent's case for revoking the applicant's security licence is based on a single episode, the fracas at the Carousel Inn Hotel at Rooty Hill on 17 June 2016. The notification of revocation of the licence (exhibit R1, p 44) states that the applicant is "depicted in the CCTV footage using excessive force by way of striking a patron to the head in a violent manner". The internal review decision of 7 October 2016 found that the CCTV footage showed the applicant "acting aggressively, particularly towards Timothy Kingham" (exhibit R1, p 68). It "clearly depicts [the applicant's] behaviour to be highly unprofessional for a licensed security officer…. It is my view that [the applicant's] actions demonstrate a course of conduct which sheds a negative light on his character, in that they imply a lack of respect for the law" (exhibit R1, p 69).
A useful summary of the sequence of events is contained in the internal review decision (exhibit R1, pp 63 - 71) which, the respondent in its written submissions said, "demonstrates a careful analysis of the facts in this matter and a correct and proper application of the relevant law". A footnote to that passage refers to p 66 of exhibit R1, which is a summary of the assault and the background to it. That summary was actually prepared by the applicant's solicitors, but the internal review reproduces it in full and without criticism, although it reaches a different conclusion as to the significance of the events described.
As a clear chronological summary it is worth reproducing here. It refers to the two miscreants as Male 1 and Male 2, but for clarity I have thought it better to substitute their surnames. I have also slightly edited it for brevity or clarity and have added some additional points in square brackets.

Richards was asked to leave the premises because he was severely intoxicated and disruptive. Other staff, including acting duty manager Ryan O'Halloran, alerted Mr Sharma to the need to ask Richards to leave, as he was refused service and it was inappropriate for him to remain on the premises.
Richards was offered a taxi, which he declined. Richards then asked that he be permitted to find his telephone, which he believed was with another patron in the hotel [Timothy Kingham].
Mr Sharma agreed to escort him to find his phone. Kingham is believed to be Richards' cousin.
Richards was escorted to the gaming area where he did in fact retrieve his telephone from Kingham, who was at that time aware that Richards was being escorted from the hotel.
Richards then asked to go to the bathroom. As a duty of care Mr Sharma allowed him to use the bathroom, before ejecting him from the hotel without any force being required. The incident that ensued occurred at the door of the bistro exit of the hotel.
Kingham followed Mr Sharma and Richards to the hotel exit. Richards and Kingham stood on opposite sides of Mr Sharma, and there was a conversation clearly taking place between them. Mr Sharma was providing further clarification to Richards as to why he was being refused entry.
Kingham then passed a schooner of beer to Richards. Mr Sharma informed Kingham that he was not permitted to supply alcohol to Richards as he had been escorted from the premises and refused service. They were also in an outdoor area where alcohol is not permitted.
Kingham became verbally abusive and aggressive, and threatened to assault Mr Sharma, who then informed Kingham that he must leave the hotel.
Mr Sharma immediately removed the schooner from Kingham's possession to avoid the potential of being struck with the schooner glass. [The glass was made from glass, not plastic].
Richards uses two hands to push Mr Sharma, who stumbles backwards, and Kingham leans forward to approach Mr Sharma.
[The next paragraph is in the nature of a submission rather than a statement of fact, but it is included for completeness.] Mr Sharma at all times did what was reasonably necessary to protect himself after being assaulted by Richards, in company with Kingham, who was clearly a threat to Mr Sharma as he steps in after Richards assaults him.
Mr Sharma uses an open hand to slap Richards and Kingham once each only. Richards continues to attack Mr Sharma and at one stage is on top of him [on the ground]. There is a 10 second wrestle between Mr Sharma and Richards before Mr Sharma gains control and restrains him by his wrists.
Public Order and Riot Squad police [who happened to be driving past] attended within 90 seconds and assisted Mr Sharma by restraining Richards. [General Duties police arrived a few minutes later.]
[The following also is a statement by way of submission.] The extent of Mr Sharma's physicality is one single open strike - being openhanded to each of the patrons in circumstances where he had been assaulted by persons in company and clearly feared for his safety. The force used was not excessive and constitutes self-defence within s 418 of the Crimes Act 1900.

Police arrested both Richards and Kingham, who both received infringement notices for being excluded persons failing to leave the premises when required. Kingham also received an infringement notice for offensive behaviour in a public place (exhibit R1, p 18). [The hotel management declined to press charges against Richards or Kingham, also simply wishing them to be removed from the premises]. The applicant was not, and has not been, charged with any offence over the incident.
The respondent submitted that Mr Sharma had been an evasive witness, as he had initially refused to admit that he had slapped Richards twice, once when Richards was facing him after the push, and once (partly out of sight behind the pillar) when he was trying to "detain" Richards, who was kicking him at the time. I do not, however, think he was being evasive or attempting to deny the obvious so much as pressing his assertion that he had only struck Richards once in the course of the main part of the altercation. It seemed more like a reflection of his style of argumentation than an attempt to deceive.
As has already been noted, the key piece of evidence is the CCTV footage. It is of good quality and appears to run at the usual video speed of about 22 frames per second, and therefore gives a natural view of the events. There is no soundtrack, however. As the interval between the spilling of the beer and the violent struggle with Richards on the ground is only a matter of seconds and the events move very swiftly, in order to evaluate what happened one must view the footage numerous times, which I have done.
The respondent advanced a number of propositions that he said showed the applicant to be in the wrong. The first was the applicant had started the fracas by throwing the beer from the glass aggressively. Yet the preceding footage, and the undisputed facts about the events inside the Carousel Inn, show the applicant as behaving in a conciliatory and accommodating manner. He escorts Richards back into the premises to allow him to retrieve his telephone, then allows him to visit the men's room, while waiting outside.
When Richards is arguing with him outside the bistro entrance and in range of the camera, Mr Sharma's demeanour is calm and normal, and at one stage he has his hands in his pockets. Meanwhile, Richards is becoming visibly more aggressive, especially after Kingham arrives on the scene and joins in his cousin's broadside of abuse and menacing discourse. The applicant's gesture of pulling the glass (which was less than half full at the time) out of Kingham's partial grip and throwing the contents to the ground was done with a swift and sharp gesture, but without displaying any aggression towards Kingham. He did not, for example throw the beer in Kingham's direction. His action was prompted by fear that the glass might be used on him. Kingham appears not to have regarded the move as an act of aggression, for it was not he who struck first, but Richards.
Next, the respondent submits that after pushing Mr Sharma, Richards did not try to assault him but backed away. But he had already assaulted the applicant by lunging forward and ramming him with both hands, causing him to lose his balance and stagger backwards. Richards then did take a step back to resume his previous position, but stood in a ready posture as if preparing for the next round in the confrontation. But, perhaps because of his intoxicated state, the applicant's swift slap took him by surprise. I assume it was a slap rather than a blow with the closed fist, as the applicant clearly used an open hand when striking Kingham, presumably in order to reduce the risk of injury, so it is safe to proceed on the basis that he delivered a slap to Richards also, albeit a powerful one that was sufficient to bring Richards to the ground. Nevertheless, Richards remained sufficiently dangerous to engage in a violent struggle with the applicant, at one point pinioning him to the ground, until the applicant managed to overpower him.

Order

The decision under review is set aside. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 March 2017

At a glance

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Judgment (6 paragraphs)

Parties

Cases Cited (5)