Zaitoune v Commissioner of Police, NSW Police Force

The Commissioner's reasons for the stay application

1. The Commissioner contends two reasons which support the application to stay the substantive application.
2. First, the continuation of the proceedings may interfere with or prejudice the Applicant's criminal trial, as well as that of his co-accused. The Commissioner submits that there is a strong public interest in the Applicant, his co-accused and the Crown having a fair criminal trial. He Commissioner contends that the continuation of the substantive proceedings may interfere with or prejudice the right of the Applicant, his co-accused and the Crown to a fair trial, which is itself sufficient to justify the stay of the proceedings.
3. Second, if the Tribunal were to conduct a merits review of the Commissioner's decision to revoke the Applicant's security licence prior to his criminal trial, it would do so without evidence relevant to the Applicant's alleged criminal offending because a Commonwealth legislative secrecy provision probits the Commissioner from giving as evidence in these proceedings evidence relied on by the Crown in its prosecution of the Applicant. However, after the Applicant's criminal trial, the Commissioner may tender the material as evidence in the current proceedings. The Commissioner submits that there is public interest in the Tribunal conducting a merits review with all relevant material before it. Given that, at present, the public interest cannot be satisfied, the proceedings should be stayed until it is possible to satisfy the public interest.
4. The Applicant opposes the request for a stay and submits that he should be entitled to enforce his rights for administrative review of the Commissioner's decision based upon all relevant material in the possession of the Commissioner at the time the decision was made and in determining this substantive application.

Background to criminal proceedings

1. It is relevant to set out a summary of the background to the criminal proceedings which I have adopted from the submissions of the Commissioner. The allegations are not in dispute. They are however, denied by the Applicant.
2. In February 2018, NSW Police Criminal Groups Squad began an investigation into drug supply activities and money laundering through the Star Casino, code named Strike Force Tippet. Targets of Strike Force Tippet included the Applicant, and two men named Gagandeep Pahwa and Raymond Shlemon. Ms Shlemon's business Global World Group Pty Limited ('GWG Pty Limited') provides contracting security services such as guards, alarms and back to base monitoring.
3. In November 2020, Mr Pahwa provided Strike Force Tippet detectives a sworn statement implicating several associates in money laundering and tax evasion offences by creating fake invoices for security and cleaning services that did not occur.
4. Mr Pahwa alleges that he worked for the Applicant and Mr Shlemon and his business GWG Pty Limited. Mr Pahwa alleges he, and Mr Shlemon, would make false invoices for work that did not occur and provide them to the Applicant. These false invoices were then allegedly paid with illicit cash holdings which were laundered through the Star Casino.
5. On 21 May 2016, an Australian Taxation Office ('ATO') comprehensive audit into Mr Shlemon and GWG Pty Limited was commenced. This was following an internal assessment in 2015 identifying unexplained wealth and risk reviews for Mr Shlemon's 2012 to 2015 financial years.
6. Mr Pahwa alleges the Applicant and Mr Shlemon planned to pay Mr Wei $150,000 to make the audit 'go away'. In August 2016, it is alleged that the Applicant, Mr Pahwa and Mr Shlemon met with the Applicant's brother at a railway station in Sydney and handed over what is alleged to be money to Mr Wei.
7. The Commissioner sets out that a large part of the evidence gathered against the persons of interest include call charge records which show a number of calls between the parties, including on Mr Wei's personal number. The phone records also show that in August 2016 the related persons' telephones were identified through a phone tower, which supports Mr Pahwa's evidence concerning their presence at the time the money was allegedly handed over.
8. In February 2021, NSW Police referred the matter to the ATO's Fraud Prevention and Internal Investigations Unit. The Australia Commission for Law Enforcement Integrity Unit received a referral with respect to that. Investigations were undertaken between the ATO, NSW Police and the Australian Federal Police, the Department of Home Affairs and the Australian Transaction Reports and Analysis Centre and the Australian Securities and Investment Commission.
9. On 9 August 2022, the Applicant was placed under arrest for being complicit with Mr Shlemon for the alleged bribery of the ATO officer, Mr Wei.
10. In the Applicant's written submissions he agrees with the summary of the alleged facts as set out above. He denies the criminal allegations against him.

The Tribunal's power to stay proceedings

1. Section 30(2)(a) of the Civil and Administrative Tribunal Act 2013 ('the CAT Act') grants power to the Tribunal to make interlocutory decisions. This includes the power to grant a stay. This is not in dispute.
2. There is no automatic entitlement to have a civil proceedings stayed where a related criminal proceeding is pending. In considering such an application the Tribunal must balance 'justice between the parties', taking account of all relevant factors (see Franken v NSW Land and Housing Corporation (2016) NSWCATAP 154 at [74]). In considering this, the Tribunal is to have regard to whether there is a 'real … danger of injustice in the criminal proceedings'; see McMahon v Gould (1982) 7 ACLR 202 at 206.
3. The Appeal Panel in Franken summarised the principles concerning the grant of a stay in civil proceedings pending the outcome of criminal proceedings. In that decision McMahon was considered as follows: '… there is no universal right of a respondent to have civil proceedings postponed until after the hearing of criminal proceedings. To the contrary, the obligation is upon a respondent in the civil proceedings to show 'it is just and convenient that the (applicant's) ordinary rights should be interfered with'. As to the 'right to silence', a respondent to civil proceedings must show that there is a 'real and not merely notional danger of injustice in the criminal proceedings'. In this regard the High Court said in Zhao at [35]: 'The Courts will not grant a stay of civil proceedings merely because related charges have been brought against a person and criminal proceedings are pending. More is required. To warrant a stay of the forfeiture proceedings, it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial.'''

Evidence filed in the proceedings

1. The Applicant relies upon an Affidavit affirmed on 7 November 2023 with annexures.
2. The Respondent relies upon two Affidavits of Christina Rebecca Rae affirmed 23 October 2023 and 15 November 2023.
3. The parties' legal representatives made oral submissions at the hearing of the interim stay application. No witnesses were called for cross-examination.

The Respondent's case

1. The Commissioner contends that the substantive proceedings in this Tribunal may prejudice both the Applicant's and his alleged co-offenders' criminal trial.
2. Ms Natasha Purvis, a Senior Federal Prosecutor with the Commonwealth Department of Public Prosecutions ('the CDPP'), has carriage of the prosecution of the Applicant on behalf of the CDPP. Annexed to the Affidavit of Ms Rae affirmed 23 October 2023 is a letter from Ms Purvis to the solicitor of the Crown Solicitor's Office, who acts on behalf of the Commissioner, dated 4 October 2023. The letter in effect explains the CDPP's concern about 'the potential adverse impacts' of the substantive proceedings on the trial of the Applicant and his co-offender.
3. Ms Purvis identifies a number of possible prejudicial outcomes on the Applicant's and his co-offender's criminal proceedings which may occur if the substantive proceedings occur before the criminal proceedings in mid-2024. Those prejudicial outcomes include: '(i) abrogation of the Applicant's right to silence; (ii) unfairly comprising the Applicant's and his co-offender's defences; (iii) affecting evidence to be used in the criminal proceedings, for example, a line of questioning at the Tribunal might inadvertently indicate the evidence of another witness.'
4. Ms Purvis also proffers a view that any protecting orders the Tribunal may have jurisdiction to make would unlikely remove the risk of prejudice to the Applicant and his alleged co-offender.
5. The Commissioner submits that the letter of Ms Purvis supports the proposition that there is a real risk that the continuation of these substantive proceedings will cause injustice to or prejudice criminal proceedings. Significant weight should be given to these matters in circumstance, particularly, where the co-offender is not involved in the proceedings or in a position to protect his interests.
6. The Commissioner submits that in adducing evidence before this Tribunal in the substantive application, she may summons the CDPP, the Australian Federal Police and other Commonwealth Government agencies for the material they hold relevant to establishing the allegations made against the Applicant, which have been considered in revoking his security licence. As well, the Commissioner submits it is likely with Pahwa and other witnesses involved in the criminal proceedings would likely be the subject of a summons in these proceedings as their evidence is relevant to the question the Tribunal is to determine, that is, the correct and preferable decision concerning the revocation of the Applicant's security licence.
7. Similarly, the Applicant may call evidence from these or other people in his evidence to rebut the underlying material in support of his alleged criminal offending.
8. The Commissioner sets out that the central issue in dispute in the substantive proceedings concerning the revocation of the Applicant's security licence, is whether he did in fact breach s 141(1) and 11.2(1) of the Criminal Code, which will necessarily involve an examination of the evidence that establishes the criminal charge. Other matters such as whether the Applicant was complicit in a scheme of false invoicing for security and cleaning services and money laundering at the Star Casino, will relate to whether this allegation can be established on the balance of probabilities relevant to the Applicant's fitness and propriety to hold a security licence.
9. The Commissioner contends that in accordance with the principles set out in McMahon, the proceedings should be stayed pending the determination of the related criminal proceedings. This is because there is a 'real … danger of injustice in the criminal proceedings' and a 'risk of prejudice' to the conduct of both the Applicant's and his alleged co-offender's criminal trials.
10. The second submission the Commissioner makes is that if the proceedings were not stayed, the Tribunal would conduct administrative review without a portion of the evidence, namely, pages 24 to 31 of the s 58 bundle which had been redacted because of a legislative secrecy provision. The Commissioner contends that s 38(6)(a) of the CAT Act demonstrates that Parliament intended for the Tribunal to have all relevant material before it when determining applications for administrative review. She says that consistent with this obligation, is the objects of the CAT Act which are to 'promote public confidence in Tribunal decision making in the State'. In the Commissioner's submission, public confidence in Tribunal decision making is best promoted by ensuring that all relevant material is before the Tribunal when it reviewed administrative decisions.
11. Given that a large proportion of the evidence against the Applicant in relation to the charge under s 141(1) of the Criminal Code, is relevant to the central issues in dispute in the substantive proceedings, without the redacted information, if the Tribunal were to undertake administrative review it may be contrary to s 38(6)(a) of the CAT Act and the objects of the Act. It follows that it would not be in the public interest for the administrative review proceedings to occur before the Applicant's criminal trial.

The Applicant's submissions

1. It is not in contest that the Applicant has pleaded not guilty to the offences in which he is to stand trial before the New South Wales District Court at Parramatta in August 2024. Despite these criminal proceedings, the Applicant seeks the Tribunal to proceed with case management of the substantive administrative review proceedings prior to the commencement of the criminal proceedings. He contends that the law has long recognised a strong presumption of innocence that must be afforded to him when facing a criminal charge. This extends until (and if) there is a subsequent finding of guilt.
2. In relation to the prejudice which might be suffered by the Applicant in the criminal trial, should he proceed with the substantive administrative review proceedings, he accepts that such prejudice may exist. However, he contends that he is represented by competent legal practitioners and any prejudice or interference with the defence to the criminal proceedings can be managed without the need for these proceedings to be stayed pending the completion of the criminal trial. This is a very persuasive submission.
3. The Applicant submits that in his criminal proceedings there are no co-offenders. He is the only defendant in relation to that criminal trial. He submits that, it is not correct at this time, to assert that any evidence given by him will affect the trial of any of the co-offenders referred to in the letter of Ms Purvis. It is also of relevance that one of the co-offenders is listed for sentence on 19 February 2024. A second co-offender is currently still before the Magistrates Court yet to enter a plea in respect of the charges to which that person faces. This is not contested.
4. The Applicant submits that even if the substantive proceedings were adjourned or stayed until after the criminal trial, he is able to exercise a right of an appeal which would further delay the determination of the matter in this Tribunal. Also, he submits that there are potential other criminal and civil actions (such as proceeds of crime) that he or his co-offenders may potentially face. In these circumstances the significant delay that may arise should the substantive proceedings be adjourned until the conclusion of each of the other criminal related matters would be disproportionate and an action which would deprive him of his legal right to have the administrative review determined. This is also a persuasive submission.
5. The Applicant contends that it is unfair for the Commissioner to revoke his licence and then to say he must wait until after the trial in August 2024 to have his administrative review decision determined by this Tribunal. He submits that the Commissioner lacks the necessary evidence to support her decision to revoke his security licence that would enable the Tribunal to find that the correct and preferable decision would be to affirm the Commissioner's decision. He contends that the public interest does not lie in the chance that there might be some evidence available, late next year, to support the Commissioner's decision to revoke his licence.
6. The Applicant relies upon the reasoning set out of Wooden J in McMahon that there is no universal right to have civil proceedings postponed until after a criminal proceeding, and that there is an obligation on a respondent (as in this case the Commissioner) to show its reasons why the civil proceedings should be so postponed.
7. The Applicant also relies upon the prejudice he suffers as a result of not having the administrative review completed as soon as possible. In that regard a letter from his Accountant, Ms Crystal Fang, dated 16 November 2023 sets out how the Applicant will personally be affected by not being able to earn an income through holding a security licence. The Applicant in his Affidavit affirmed 7 November 2023 deposes to the significant financial prejudice he has experienced following the revocation of his security licence. Suffice to say, he has lost a significant income in terms of security work between 2022 and 2023 following on from the decision made by the Commissioner.
8. I note the Commissioner filed further evidence indicating that the Applicant has removed himself as a Director of a number of the companies associated with the provision of security services he was both a Director and shareholder of. The Respondent submits that the change in ownership and directorship of those companies does not mean that the Applicant is himself financially prejudiced. This is because of the corporate structure and that his family members have replaced him as Director and shareholders of the associated companies.
9. The Applicant was not called for cross-examination. I accept his evidence, which is corroborated by his Accountant. This is that he himself has suffered personal financial loss following the decision made by the Commissioner which is the subject of review by this Tribunal. I also note that at least one contract which the Applicant deposes was worth $5 million will cease in December 2023 and not be reviewed as a result of the loss of his security licence. I also accept the evidence of the Applicant that he was a contender for other potential security contracts worth several millions of dollars. His ability to pursue those contracts has now ceased following the loss of his security licence.

My consideration

1. In respect of the Commissioner's submission that the determination of the administrative review would prejudice the Applicant's criminal trial, I accept the Applicant's submissions. The Applicant has competent legal advisers who can navigate any prejudice, or damage to his defence, in the criminal proceedings. The stay application before the Tribunal is unusual. This is because it is an application brought by the Commissioner and not the Applicant himself alleging prejudice to his own defence in the criminal proceedings. Where the Applicant has competent legal advisers and is aware of the potential interference or prejudice with his defence in the criminal proceedings, and where he is advised to proceed with the administrative review proceedings, I accept that the stay should not be granted on this ground.
2. In relation to the submission that evidence that might be required to be given by a co-offender might prejudice that person's, or the Crown's, criminal trial, I reject that submission. The co-offender is not a party to these proceedings. It would be unjust, and unfair, to the Applicant to have his legal rights for determination of the administrative review proceedings delayed on the basis of proceedings of which he has no involvement and control of. In that respect I note that one co-offender is subject to a sentencing hearing in February 2024. The Applicant is not a party to those criminal proceedings and will have no involvement with respect to evidence that is put before the Court or submissions on sentencing. Similarly, the co-offender who is yet to enter a plea before the Local Court of New South Wales is not a party to the criminal proceedings relating to the Applicant which are to be heard in August 2024. It would be manifestly unfair to the Applicant in these proceedings that a stay be granted, to which could potentially be an indefinite period, pending whether or not that co-offender enters a plea of guilty or not guilty and when his or her criminal proceedings are to be determined. If and when the co-accused is joined to the criminal proceedings relating to the Applicant in 2024, the question of prejudice or unfairness may then arise. However, that evidence is not currently before me. I am also not satisfied that the Commissioner has demonstrated prejudice to the Crown in the criminal proceedings.
3. The authorities to which I have been taken by each of the parties, relate predominantly to the prejudice that might be suffered by a party to the criminal proceedings. I am not of the view that those principles can be extrapolated to a co-offender who is not a party to either of the proceedings which are the subject of this application.
4. It follows that the request for a stay must be refused. There is insufficient evidence to establish that it is just and convenient that the Applicant's ordinary rights of administrative review should be interfered with.
5. The remaining ground upon which the Commissioner seeks a stay concerns the Tribunal not having all relevant material before it. In oral submissions the solicitor appearing for the Commissioner and the solicitor appearing for the Applicant agreed that there is a provision of Commonwealth secrecy legislation in place which protects the disclosure of information currently redacted in the s 58 bundle. Due to the nature of those provisions I was not able to be informed about the provision itself. The Commissioner also submitted that she is not privy to the information contained in the redacted part of the s 58 bundle as the Commissioner herself is caught by the secret provision(s). It follows, that the Commissioner would not have had the benefit of that information in making the decision to revoke the Applicant's security licence. It is unclear whether any of that information is relevant to the Tribunal's determination of the substantive application. I have assumed that there are no exceptions available for that information to be disclosed to a Court, or a Tribunal, given the submissions made by the parties legal representatives.
6. I have considered the obligations set out in s 58 of the ADR Act which provides: '(1) An administrator whose administrative reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: … (b) a copy of every document or part of a document that is in the possession, or under the control of, the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal.'
7. The Commissioner has complied with that obligation. It is unfortunate that the secrecy provisions, of the secret Commonwealth Act prevent the release of that information. However, I am not satisfied that the Applicant's right to seek administrative review of the Commissioners decision concerning his security licence should be delayed for any lengthy period of time until after his criminal proceedings have been completed. There is also no certainty the criminal proceeding will be concluded in mid-2024. It is not uncommon for adjournments to be granted, which, could, further delay the criminal proceeding. In my view, the Commissioner has made a decision to revoke the Applicant's security licence based upon the information available to her. In compliance with the obligation contained in s58 of the ADR Act, the Commissioner has disclosed the relevant material available to her pursuant to the requirement in s 58 of the ADR Act. There is no prejudice to the public interest in the Tribunal determining the application for administrative review based upon that information, which is currently available, and, which formed part of the information available to the Commissioner when the decision was made to cancel the Applicant's security licence.
8. Having accepted that the Applicant is experiencing financial prejudice and distress, together with emotional and psychological distress as set out in his Affidavit, which was not challenged, I am not satisfied that the stay should be granted. I reject the Commissioner's submission that it would be contrary to s 38(6)(a) of the CAT Act and the objects of the Act in not providing the stay based upon the redacted information not being available. The New South Wales Parliament has enshrined the obligations of agencies in s 58 of the ADR Act and the Tribunal in the relevant provisions of the CAT Act including s 38. The Commissioner has complied with her obligations. It is unfortunate that the Commonwealth Parliament has not considered the effect of secrecy provisions, and included some type of exclusionary provisions so that the subject information could be used in a protected way, where relevant, in determining an administrative review decision, such as these proceedings. No such exclusionary provision has been brought to my attention.
9. When considering all the facts and circumstances of this matter and the submissions of each of the parties together with the evidence filed I am not satisfied I should exercise a discretion to grant a stay of the administrative review proceedings until after the conclusion of the criminal proceedings.
10. The public interest and administration of justice is best served by allowing the Applicant to exercise his right for administrative review. I find it just and convenient to allow him to do so.

ORDERS 1. The application for a stay order is refused. 2. The proceedings are listed for directions with a date to be fixed by the registry.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 December 2023