Doyle -v- Commissioner of Police, New South Police Service (GD) [2000] NSWADTAP 1

Appeal Panel

CITATION: Doyle -v- Commissioner of Police, New South Police Service (GD) [2000] NSWADTAP 1 APPELLANT PARTIES: Benjamin Doyle RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 999017 HEARING DATES: 21/12/99 SUBMISSIONS CLOSED: 12/21/1999 DATE OF DECISION: 02/15/2000

Principal matter DECISION UNDER APPEAL: BEFORE: Hennessy N (Deputy President); Wilson K - Judicial Member; Bolt M - Member CATCHWORDS: statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993019 DATE OF DECISION UNDER APPEAL: 09/08/1999 LEGISLATION CITED : Security Industry Act 1997 Pollard v Commonwealth DPP (1992) 28 NSWLR 659 CASES CITED: Inspector-General in Bankruptcy v Matthews, (20 December 1990, unreported Federal Court of Australia) Bourke and ors v Commissioner of Police [1998] ADT APPELLANT REPRESENTATION: K Harkness, solicitor RESPONDENT G Doherty, solicitor ORDERS: The decision under appeal is affirmed.

REASONS FOR DECISION Background 1 This is an appeal against a decision of Judge O'Connor, President of the Tribunal, made on 8 September 1999. That decision affirmed the decision of the Commissioner of Police (the Commissioner) refusing Mr Doyle's application for a Class One licence under Security Industry Act 1997 (the Act). 2 The Commissioner refused Mr Doyle's application for a license because he had been convicted on 24 November 1995, of an offence under s 178BB of the Crimes Act 1900. The offence was making a false statement with intent to obtain financial advantage. The legislation 3 Section 16(1)(a) of the Act, entitled "Restrictions on granting licence -- criminal and other related history" states that: (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant: (a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, 4 Clause 11 of the Security Industry Regulation 1988 (the Regulation) prescribes certain offences including offences involving fraud, dishonesty or stealing. Clause 11(d) states that: For the purposes of section 16 (1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales: (d) Offences involving fraud, dishonesty or stealing An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more. 5 Section 178BB of the Crimes Act 1900 states that: 178BB. Obtaining money etc. by false or misleading statements Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years. Outline of submissions 6 The three submissions put to Judge O'Connor by the applicant are the same as those put as grounds for this appeal. They are: (a) that the offence set out in s 178BB of the Crimes Act 1900 does not fall within Cl 16 of the regulation as it was not one involving fraud dishonesty or stealing; (b) that Cl 16 of the Regulation was made beyond the power conferred by s 11 of the Act, that is that it was ultra vires, and accordingly the decision taken under it was invalid; (c) that the Tribunal erred in Bourke's case in finding that it did not have any discretion to vary the Commissioner's decision in cases of this kind. 7 The basic circumstances of Mr Doyle's offence were that he gave a false name when booking into a hotel. He later left the hotel without paying. Mr Doyle admitted that he had been convicted under s 178BB of the Crimes Act 1900 in 1995. Despite his counsel's assertion at the first hearing that "he was convicted of recklessness" rather than of knowingly making a false statement, his solicitor clarified at the hearing before the Appeal Panel that he knowingly gave a false name. 8 The first ground was the one on which the applicant placed most reliance. However he submitted that that section is capable of being breached without actual dishonest intent and therefore, it is not an offence "involving fraud, dishonesty or stealing" as prescribed by Regulation 11(d). Decision at first instance 9 Judge O'Connor decided that: A reasonable approach should be adopted to determining whether a specific offence can properly be described as one involving "fraud, dishonesty or stealing". These are all offences involving the deprivation of someone else's property with some requisite intent. It would, I consider be artificial to sub-divide this group of offences as between those that depended on proof of a positive criminal intent as against an intent based on reckless disregard for the consequences of conduct (as to which, see Smith [1982] 7 A Crim R 3437 (Victorian Court of Criminal Appeal) and Stone's case (1955) 56 SR (NSW 25). Whether the intent is actual or founded on reckless disregard for consequences, it is reasonable, I consider, to describe the conduct involved as "dishonest." 10 Judge O'Connor adopted the ordinary meaning of "dishonest" in concluding that the kind of conduct to which s 178BB is addressed would ordinarily be regarded as dishonest. Meaning of "an offences involving fraud, dishonesty etc" 11 Several statutes have implications for people convicted of offences involving fraud or dishonesty. These include s 227 (2)(b) of the Companies Code (NSW) concerning directors of companies and s 155(3B)(a) of the Bankruptcy Act 1966 concerning trustees. However our research has revealed only one case where s 178BB has been considered directly. In Pollard v Commonwealth DPP (1992) 28 NSWLR 659 the Supreme Court was considering whether a person convicted under s 178BB of the Crimes Act had been convicted "of any offence involving fraud or dishonesty" pursuant to s 227(2)(b) of the Companies Code (NSW). Abadee J decided that where a person has been convicted under s 178BB, that person has committed an offence "involving fraud or dishonesty". 12 In Pollard, counsel for the plaintiff argued that an offence "involving" fraud or dishonesty means an offence "of" fraud or dishonesty. In rejecting this view, Abadee J stated that: The word "involving" appears to have been deliberately inserted in contradistinction to the insertion of the word "of". Further, the argument fails to give the section its ordinary meaning, which in my view, leads to no ambiguity or uncertainty. It appears to me that there is a clear difference between an offence "involving" fraud or dishonesty, and an offence 'of" fraud or dishonesty. 13 This view is supported by a comment of von Doussa J in Inspector-General in Bankruptcy v Matthews, (20 December 1990, unreported Federal Court of Australia). This case involved an application for the cancellation of the applicant's status as a trustee in bankruptcy under s 155(5B) of the Bankruptcy Act 1996. In the course of his decision, von Doussa J commented at [20] that: In the present case the respondent has not been convicted of an offence of fraud or dishonesty. The Court has however found, according to a lesser standard of proof, that he engaged in conduct in relation to the two cars of a serious kind which involved fraud and dishonesty. 14 Counsel for plaintiff in Pollard further submitted (at 667E) that s 178BB should be contrasted with s 178BA where the word "dishonestly" is used. Section 178BA states that: Whosoever by any deception dishonestly obtains for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever shall be liable to imprisonment for 5 years. 15 According to counsel in Pollard, in s 178BB the only intent necessary is an intent to obtain money, a valuable thing or financial advantage. This view has subsequently been supported by Hunt CJ In R v Stolpe at 22 where it was said that: A comparison between the terms of s 178BA and s 178BB makes it clear that the inclusion of an ingredient of dishonesty in the former and its omission in the latter was deliberate. In order to prove an offence under s 178BA, it is necessary for the Crown to establish that, notwithstanding that the accused obtained the relevant advantage by deception, he also did so dishonestly; although in many cases the deception will be powerful evidence of dishonesty, it may not be so where, for example, the Crown has not eliminated any reasonable possibility that the accused honestly believed that he had a right to obtain that advantage. In order to prove an offence under s 178BB, the Crown does not have to prove dishonesty; it is sufficient to establish that there was an intent to obtain money or valuable thing or any financial advantage. To make a statement with knowledge of its falsity may well involve dishonesty, (See Pollard v DPP (1992) 28 NSWLR 659 at 672) but again it need not do so where, for example, there may reasonably be a claim of right involved. Therein appears to lie the principal distinction between the two offences, in that, so it seems, an offence will be committed under s 178BB notwithstanding the reasonable possibility that a claim of right exists, but no offence will committed under s 178BA in those circumstances. 16 Abadee J in Pollard did not accept that "involved" meant that fraud or dishonesty were legal requirements of the offence. In particular, he stated at p 669A and B that: "If a person knows he is making a false statement, that is a form of dishonesty. To do so with reckless disregard as to whether it is true or false appears to me capable of equally being regarded as dishonest. Indeed, someone who is prepared or willing to seek a financial advantage by making a statement without regard to whether such is true or false, without regard to what the true position might be, could well be thought to be acting dishonestly." 17 According to Gillies in Criminal Law, (4th edition, LBC Information Service 1997, at 780), No court has attempted to distinguish the concepts of fraud and dishonesty. The words have been identified on numerous occasions as being synonymous." 18 Abadee J supports this contention in Pollard at 667C saying that "frequently fraud has a meaning interchangeable with dishonesty." Gillies makes the following general comments in relation to fraud and dishonesty at 781: To act fraudulently or dishonestly, involves, broadly speaking, the doing of an act which prejudices another's rights. Such conduct will typically be associated with acts of deception, or trickery, or cheating - such are the connotations of these words in ordinary usage.. . . To act dishonestly for the purposes of criminal liability requires the performance of an act by a person possessed of a relevant state of mind (that is a dishonest state of mind). (words in brackets added). 19 We agree with Hunt CJ in Stolpe that in order to prove an offence under s 178BB, the Crown does not have to prove dishonesty (or fraud). The question then is whether offences "involving fraud, dishonesty etc" means that fraud or dishonesty must be a legal element of the offence or whether it is enough that fraud or dishonesty are involved in a way which most people would understand those terms. 20 Pollard is authority for the second interpretation. Similarly, even though Hunt CJ in Stolpe made the point that the Crown does not have to prove dishonesty, His Honour went on to make the comment that: What is important to emphasize is that directions to a jury in relation to s 178BB should never suggest that dishonesty is not involved (as distinct from being required) in the offence, for that may divert the jury from a proper consideration of the seriousness of actions of the accused. 21 We take this to mean that while dishonesty is not a requirement of an offence under s 178BB, a jury should nevertheless be told that dishonesty is "involved". This supports the view that s 178BB is an offence "involving fraud dishonesty etc." 22 A further submission of the applicant was that the Regulation should be interpreted narrowly because of the impact of the licensing scheme. In Bourke and ors v Commissioner of Police [1998] ADT, Judge O'Connor said that: The impact of this scheme as reflected in the appeals that are here this morning is clearly quite draconian in relation to circumstances where people have had quite minor past convictions. 23 There is no doubt that the Act and Regulation have had considerable adverse impact on people employed in the security industry who would generally not be considered as any kind of threat to the good name of that industry. However, presumably parliament did not intend the legislation to be punitive. As with similar provisions such as s 227 of the Companies Code, it is designed to ensure that people employed to protect the public are beyond reproach. For this reason we are satisfied that the provisions should be given their natural meaning, rather than a narrow construction. 24 Consequently, on the basis of the decisions in Pollard and Stolpe, and the reasoning outlined above, we are satisfied that an offence under s 178BB of the Crimes Act 1900 involves fraud or dishonesty. 25 No additional material was brought to the Appeal Panel's attention in respect of the second and third issues outlined above. We have read Judge O'Connor's reasons in relation to these issues and have found no error of law. Consequently pursuant to s 114(2)(a) of the Administrative Decisions Tribunal Act 1997, Judge O'Connor's decision at first instance is affirmed.