Commissioner of Police, New South Wales Police Service -v- Knight (GD) [2000] NSWADTAP 6

Appeal Panel

CITATION: Commissioner of Police, New South Wales Police Service -v- Knight (GD) [2000] NSWADTAP 6 APPELLANT Commissioner of Police, New South Wales Police Service PARTIES: RESPONDENT Robert John Knight FILE NUMBER: 999028 HEARING DATES: 28/03/2000 SUBMISSIONS CLOSED: 03/29/2000 DATE OF DECISION: 05/03/2000

Principal matter DECISION UNDER APPEAL: BEFORE: Needham CA - (Deputy President); Wilson K - Judicial Member; Bolt M - Member CATCHWORDS: leave to extend to the merits - no evidence - opportunity to be heard - relevant/irrelevant considerations MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993156 DATE OF DECISION UNDER APPEAL: 10/28/1999 LEGISLATION CITED : Security Industry Act 1997 CASES CITED: APPELLANT REPRESENTATION: G Doherty, solicitor RESPONDENT In person ORDERS: 1. Appeal for error of law allowed.; 2. Leave to appeal on the merits granted.; 3. Set aside the decision of Mr P M Skinner made 28 October 1999, granting to the Applicant a Class 1A licence.; 4. Substitute the Appeal Panel's decision that the Applicant's application for a licence under the Security Industry Act 1997 be refused.; 5. These orders to become effective 6 weeks from the date of this decisiont.; 6. No order as to costs.

REASONS FOR DECISION 1 This is an appeal by the Commissioner of Police which was heard by a panel constituted by three Members of the Tribunal. The Appellant ("Commissioner") was represented by a solicitor advocate. The Respondent appeared in person. 2 The appeal was brought from the decision of Mr P.M. Skinner, Judicial Member ("the Member") of 28 October 1999 upon an application by Mr Knight under s.63 of the Administrative Decisions Tribunal Act 1997 for review of a decision of the Delegate of the Commissioner of Police refusing the grant of a security licence under the Security Industry Act 1997. 3 The decision of the Delegate was notified to Mr Knight ("the Licensee") on 21 January 1999. The refusal was under s.16(1)(a) of the Security Industry Act on the basis of the Licensee's conviction in 1991 for "Possess Cannabis" at Darwin Court. 4 Subsequent to the refusal, the Licensee made representations to his local Member, who in turn communicated with the Minister for Police and thereafter, the Licensee sought and received an internal review under s.53 of the Administrative Decisions Tribunal Act of the Commissioner's decision to refuse the security licence. Again the grant of a licence was refused on the basis that the Commissioner was satisfied that the Licensee had been convicted of a prescribed offence in respect of a prohibited drug, namely "Possess Cannabis" in 1991. 5 In July 1999 the Licensee applied to this Tribunal for a review of the decision to refuse a licence. The Member decided to grant the licence on the basis that he was not satisfied that the offence to which the 1991 conviction related was in respect of a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 (NSW) such as would fall within the mandatory refusal provisions of s.16(1)(a) of the Security Industry Act 1997. From that decision, the Commissioner of Police has appealed. 6 The factual material before the Member included: (a) Mr Knight's application of 27 September 1998 for a licence under class 1 for the following activities: patrol, guard, watch or protect property (including the guarding of cash in transit), bodyguard and crowd controller or bouncer; (b) a computer criminal record of the Northern Territory Police for the Licensee showing a conviction for "Possess Cannabis" in Darwin on 12 February 1991, fined $200 in default 4 days' imprisonment. (c) a handwritten letter from the Licensee to the Tribunal filed in July 1999 in support of his application for review. 7 The application for a class 1 licence was made on form P601 of the NSW Police Service. Section 3 requires the applicant to answer certain questions entitled "Personal History" of which question 3 provides: "Have you been convicted of an offence within the period of 10 years before the making of this application in New South Wales or elsewhere?" 8 In answer to this question the Licensee failed to disclose his 1991 conviction in Darwin, but disclosed a less recent "DUI" conviction. 9 In his letter to the Tribunal which was referred to by the Member at the review hearing, the Licensee stated: "In 1991 while I was living in Darwin, NT I most foolishly accepted a 'foil' of marijuana as payment for some work that I had done, within one minute of my taking that 'foil' into my possession, a passing policeman saw the 'foil' which I still had in my hand. I was consequently charged, convicted and fined $200.00 for the possession of Cannabis." 10 This account is at variance in two significant respects with the police fact sheet which was tendered on the merits appeal as exhibit A, to which we later refer. 11 At the hearing of the application for review, the Licensee was unrepresented and the Commissioner was represented by a solicitor advocate. The hearing was brief and it would appear from the transcript that unfortunately the Member did not have before him a complete copy of the Drug Misuse and Trafficking Act or, it would seem, any copy of the Security Industry Regulation 1998. These were the two statutory provisions relevant to the decision which the Member had to make under s.16(1)(a) of the Security Industry Act which provides: "(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." 12 Whether the case falls within the mandatory refusal provisions of s.16(1) depends on whether "an offence prescribed by the Regulations" has been committed and this in turn, depends upon the wording of the Security Industry Regulation 1998, relevantly s.11(b), which refers to the commission of an offence under the Drug Misuse and Trafficking Act, NSW. 13 Section 11 of the Regulation is headed "Offences that Disqualify Applicants". Section 16 provides: "For the purposes of s.16(1)(a) and (b) of the Act, the following offences are prescribed offences regardless of whether they are permitted in New South Wales: ... (b) Offences relating to prohibited drugs An offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985 ) committed under: (i) the law of any Australian jurisdiction ..." 14 The Drug Misuse and Trafficking Act 1985 defines "prohibited drug" to mean "any substance, other than a prohibited plant, specified in Schedule 1". Schedule 1 of that Act includes: "Cannabis leaf", "Cannabis oil" and "Cannabis resin". 15 "Prohibited plant" is defined by the Act as meaning, relevantly, "Cannabis plant". 16 The Member held that he was not satisfied that the conviction was in respect of a disqualifying offence because the evidence did not disclose whether the conviction related to cannabis leaf, oil or resin, as opposed to a growing cannabis plant. In paragraph 25 of the Reasons for Decision he said: "There is no direct evidence before the Tribunal to indicate whether the 'cannabis leaf', 'cannabis oil', 'cannabis plant' as those terms are defined by the Drug Misuse and Trafficking Act ..." 17 He decided to grant a security licence. The decision was surprising to the Commissioner since the Member had made statements at the hearing which the Commissioner might reasonably have understood as showing that the Member had no doubt that a disqualifying offence had been committed (subject to clarification of one outstanding matter which the Member had raised during the hearing but which ultimately proved not relevant to the decision). 18 At the hearing, no discussion was directed to the circumstance that the criminal record sheet did not identify the substance to which the conviction related with sufficient specificity to determine whether it was a cannabis product listed in Schedule 2 of the Drug Misuse & Trafficking Act 1985. The issue was not drawn to the Member's attention by the solicitor advocate appearing for the Commissioner who conducted the matter on the assumption that a conviction for 'Possess Cannabis' was a sufficient identification of the substance. 19 At the hearing the Member said: "Mr Knight I think you are entitled for me to be convinced that the wording of the Regulations are right but I think they are and I think my hands are tied really. I don't know there's much I can do. The legislation is mandatory. I have some sympathy for you obviously ... Look all I can say is I will look at the regulations and the law ... but if it comes within the wording of the legislation it comes within the wording of the legislation and ... s.16 says the Commissioner must refuse ... I'll reserve my decision until I can just check out this regulation ... I doubt ultimately that it will change the position." 20 Having said that, the Member asked the Licensee: "Can you tell me the amount involved in 1991 in the Northern Territory?" 21 The Licensee replied: "Yeah. It was a foil of marijuana about a gram." 22 That fact was accepted by the Commissioner (transcript p.6 lines 12-15). 23 This oral evidence from the Licensee informed the Member that the substance to which the conviction related was indeed cannabis leaf, and hence a prescribed drug within Schedule 2. "Marijuana" is defined in the Macquarie Dictionary as meaning either the Indian hemp Cannabis sativa or its dried leaves and flowers, used in cigarettes and food as a narcotic and intoxicant. Clearly, the amount involved and the fact that it was in aluminium foil excludes the possibility that the conviction related to a growing Cannabis plant. The reference to "marijuana" thus identified the substance as cannabis leaf. 24 This oral evidence confirmed the written admission made in the Licensee's letter of July 1999 which referred to his conviction in respect of a 'foil of marijuana'. 25 We are of the opinion that these facts provided sufficient evidence for the Member to be satisfied that a prescribed offence had been committed and that accordingly, the case was one where mandatory refusal of the application for a licence was directed by s.16(1) of the Security Industry Act. 26 Nonetheless, on 28 October 1999 when the decision was given, a licence was granted. At paragraph 10 the Member said: "The Applicant described the circumstances of the offence as involving his possession of a "foil" of marijuana but this further information does not assist me in the resolution of the problem that I outline below." 27 The Notice of Appeal alleges errors of law and also seeks leave to appeal on the merits. The errors of law which are alleged relate to a denial of procedural fairness. The merits appeal broadly, though not in terms, was based on the ground that the Member failed to hold that a 'foil of marijuana' described cannabis leaf. 28 On the hearing of the appeal, we took the course of hearing all submissions and evidence that would be relevant to all grounds of appeal, including the merits appeal if leave were ultimately granted. The parties consented to this course. Further evidence was received on the merits appeal. 29 On the appeal, the Commissioner tendered, without objection, some further material going to the nature of the offence with which the Licensee had been convicted. 30 The Administrative Decisions Tribunal Act does not specifically provide for an Appeal Panel to receive fresh evidence on the hearing of an appeal. Section 115 provides: "(1) If an appeal under this Part extends to a review of the merits of an appealable decision, the Appeal Panel is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned." 31 The expression "material then before it" is not limited to evidence which was before the Tribunal below being evidence before the Tribunal below. 32 Section 115(2) empowers an Appeal Panel to exercise all of the functions of the Tribunal at first instance. Section 63(2) in turn provides that in determining an application for a review "the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision". 33 These provisions, when read together, confer power on an Appeal Panel to receive fresh evidence on the hearing of an appeal on the merits and accordingly in the absence of objection, we received exhibit A. 34 Exhibit A includes a Statement of Facts headed "Precis" together with a copy of the information and an Arrest Sheet for the Licensee. The Statement of Facts included the following evidence: "At about 9.40 p.m. on Monday the 28th of January 1991 the Defendant was urinating on a street light pole situated on the footpath directly outside Number 86 Mitchell Street, Darwin. A mobile police unit observing these actions pulled into the driveway ... and approached the Defendant ... After a brief conversation with police the defendant was asked to empty the contents of his pockets onto the bonnet of the Police vehicle. Complying with this request, the Defendant removed a 10cm long roll of aluminium foil from the rear pocket of his jeans. This roll dropped to the ground and the defendant then placed his foot on top of it. An inspection by police revealed this roll to contain cannabis. When asked if the substance contained in the foil was marijuana the defendant replied Yes, it's marijuana and when asked for a reason for possessing it, stated I'm stupid, that's why. ... The foil of cannabis was seized and later exhibited. Exhibit No.X 87920 refers." 35 The facts disclosed in the police summary diverge substantially from the account of the circumstances of the offence given by the Licensee in his letter to this Tribunal. No challenge was made to the accuracy of the Statement of Facts and we accept it as an accurate account. 36 The Information included in exhibit A was for the indictable offence "Did unlawfully possess a dangerous drug ... specified in Schedule 2. Section 9 of the Misuse of Drugs Act". It bore a handwritten notation "1gm Cannabis". 37 The provisions of the Northern Territory statute occupied some time during submissions on this appeal, however, we consider that it is not relevant except to the extent that we are satisfied that the conviction was under "the law of any Australian jurisdiction" within the provisions of the Regulation s.11(b), to which we have already referred. 38 Exhibit A confirmed the evidence that had been given to the Member below, that the conviction related to possession of marijuana. We are satisfied for the reasons set out above that a disqualifying offence was committed. It was clearly within a period of 10 years before the application for the licence was made. If leave were granted to appeal on the merits, we would refuse the application for a licence pursuant to s.161(1) of the Security Industry Act. 39 We grant leave to appeal on the merits on the grounds that: (a) an error of law was committed on a material issue; (b) the hearing of the merits appeal would involve minimal additional evidence or submissions. 40 The errors of law were the Member's finding that there was no evidence that the substance was cannabis leaf and his finding that the evidence of the Licensee that he was in possession of a foil of marijuana was irrelevant to the issue for decision. 41 These matters were canvassed at length at the hearing of the appeal. Indeed the sufficiency of the evidence before the Member occupied virtually the whole of the hearing of the appeal. 42 In relation to the denial of procedural fairness alleged in the Notice of Appeal, it was submitted that the Member failed to disclose at the hearing that there was any risk of an adverse finding being made, thereby depriving the Commissioner of the opportunity to put submissions of law concerning the provisions of the Misuse of Drugs Act 1990, NT and the opportunity of seeking an adjournment to call evidence showing that the conviction related to cannabis leaf as opposed to a growing cannabis plant. 43 As we have said, the Northern Territory Act does not bear on the issue for decision. The additional factual evidence which might have been brought is that contained in exhibit A. It does little more than confirm the evidence which was already before the Member. 44 We do not accept that there was a denial of procedural fairness. The onus was clearly upon the Commissioner at the hearing to satisfy the Member that a disqualifying offence had been committed and any evidence relevant to that issue ought to have been available at the hearing. 45 The Commissioner was represented at the hearing and had the opportunity to refer to any statutory provisions or regulations that were considered to be relevant to the issue for decision. The Commissioner chose not to do so and left it to the Member to consider for himself and without the assistance of detailed submissions, the application of those statutory provisions to the evidence which was put before him by the parties. 46 Although the Member was clearly of the view at the hearing that a Licence would be refused, he made it clear that he would be giving careful consideration to the regulation and the law before giving his decision on whether the case fell within the wording of s.16 of the Security Industry Act. In those circumstances, we do not consider that the Commissioner was given to understand that the refusal of a licence was a foregone conclusion. 47 We propose to make the orders below and grant leave to the Commissioner to relist the matter for any submissions in relation to order 5. If the matter is not relisted the orders shall take effect according to their terms. 48 We make the following orders: 1. Appeal for error of law allowed. 2. Leave to appeal on the merits granted. 3. Set aside the decision of Mr P M Skinner made 28 October 1999, granting to the Applicant a Class 1A licence. 4. Substitute the Appeal Panel's decision that the Applicant's application for a licence under the Security Industry Act 1997 be refused. 5. These orders to become effective 6 weeks from the date of this decision. 6. No order as to costs.