Appeal Panel CITATION: Joyce -v- Commissioner of Police, New South Wales Police Service (GD) [2000] NSWADTAP 17 APPELLANT Paul Joyce PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 009011 HEARING DATES: 25/08/2000 SUBMISSIONS CLOSED: 08/25/2000 DATE OF DECISION: 09/13/2000 Principal matter DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Hoeben GMM - Judicial Member; Antonios Z - Member CATCHWORDS: statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993122 DATE OF DECISION UNDER APPEAL: 03/01/2000 LEGISLATION CITED : Security Industry Act 1997 Joyce v Commissioner of Police, NSW Police Service [2000] NSWADT 17 Purdon v Dittmar [1972] 1 NSWLR 94 Aldridge v Marks (1943) SR (NSW) 69 CASES CITED: Grant v The Queen (1981) 55 ALJR 490 R v Chan (1992) 28 NSWLR 421 Commissioner of Police v Bourke and others [1998] NSWADT 1 Doyle v Commissioner of Police [1999] NSWADT 84 APPELLANT REPRESENTATION: B Niven, barrister RESPONDENT G Doherty, solicitor ORDERS: Decision under appeal is affirmed. 1 This appeal raises a question of statutory construction. 2 The appellant is a master locksmith who conducts a business at North Ryde. 3 The Commissioner of Police has refused to renew his Class 2B and 2C security industry licence. The licences are issued pursuant to the provisions of the Security Industry Act 1997 (the Act). A Class 2B licence authorises the holder to sell security equipment, to carry out surveys and inspections of security equipment and to give advice about security equipment. A Class 2C licence authorises the holder to install, repair, service or maintain security equipment. 4 The appellant was notified of the refusal on 3 May 1999. He applied for review of the decision by the Tribunal. The Tribunal affirmed the Commissioner's decision: Joyce v Commissioner of Police, NSW Police Service [2000] NSWADT 17 (Gen Div, 1 March 2000). 5 The Act, s 16(1)(a) requires the Commissioner to refuse to renew a licence where the applicant has a conviction imposed within 10 years of the date of the application falling within categories set down in the Security Industry Regulation 1998 (the Regulation). In his application the appellant disclosed that he had incurred a conviction for the offence commonly known as 'goods in custody' within the last 10 years. The Commissioner regarded the offence as one falling within a prescribed category. The Tribunal below agreed with that view. The appeal raises the question of whether the Commissioner and the Tribunal properly construed the relevant provisions. 6 The relevant provisions in the Act and the Regulation are as follows. Act, section 16(1)(a) '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 was made, been convicted in New South Wales of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.' Regulation, cl 11(d) The following is a prescribed category - '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 … imprisonment for 3 months or more.' Appellant's Offence 7 After pleading guilty to the charge, the appellant was convicted at Ryde Court on 3 March 1993, of an offence against s 527C of the Crimes Act 1900 and fined $100. The offence for which the appellant was convicted has a maximum penalty of six months imprisonment. 8 Section 527C provides (emphasis added): '(1) Any person who: (a) has any thing in his or her custody; (b) has any thing in the custody of another person; (c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another; or (d) gives custody or any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained , shall be liable on conviction before a Local Court constituted by a Magistrate sitting alone to imprisonment for 6 months, or to a fine of 5 penalty units. … (2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.' The Question of Law 9 The question is whether s 527C creates an offence which can properly be characterised as an offence 'involving fraud, dishonesty or stealing.' 10 Counsel for Mr Joyce submitted that the Tribunal's critical omission was that it failed to recognise that the extended area of operation of the provision (to cover things 'otherwise unlawfully obtained') took the provision outside the sphere of one 'involving fraud, dishonesty or stealing'. 11 The Tribunal dealt at length in its decision with the construction of the terms 'involved' or 'involving': see [2000] NSWADT 17 at [10] to [14]. We agree with its analysis to the effect that these words have a broad scope. It is not required that 'honesty' be an element of the offence in order for an offence to belong to the cl 11(d) category. 12 We understood counsel for the appellant to concede as much, as his main submission was that the offence nevertheless had to be one of a 'dishonest nature.' 13 Counsel referred the Panel to the case of Purdon v Dittmar [1972] 1 NSWLR 94 (CA, Sugerman P, Holmes JA Taylor AJA). In this instance the thing giving rise to the charge was money which was the proceeds of an unlawful sale by the defendant of a drug of addiction. It was accepted that the money was 'unlawfully obtained' with the question being whether such conduct unconnected to stealing fell within the scope of s 40(1)(a) of the Summary Offences Act 1970 (s 527C is a materially unaltered restatement of that provision). In the Magistrate's opinion, the words 'or otherwise unlawfully obtained' were to be read eiusdem generis with the prior word 'stolen'. He applied the leading decision of Jordan CJ for the Full Court in Aldridge v Marks (1943) SR (NSW) 69, esp at 70 where the provision then in force, s 27 of the Police Offences Act 1901, was strictly construed. Consequently as the money was not stolen, though unlawfully obtained, the charge was dismissed. 14 On appeal, the Court of Appeal found that the Magistrate had erred in law. Section 40(1)(a) had involved a critical variation to the previous provision, s 27 of the Police Offences Act 1901. In the previous provision the material words were 'which thing may have been reasonably suspected of being stolen or unlawfully obtained.' In the then recently enacted 1970 provision the word 'otherwise' had been inserted between 'or' and 'unlawfully'. 15 The Court of Appeal ruled that the inclusion of that word broke the nexus which the Magistrate had considered was found in the provision. 'Otherwise' was to be construed as covering forms of unlawful obtaining other than stealing. The authority of Purdon v Dittmar on this point was accepted by the High Court in Grant v The Queen (1981) 55 ALJR 490 at 492 per Mason, Aickin and Wilson JJ. 16 In his written submissions counsel for Mr Joyce describes the position that now applies in consequence of Purdon v Dittmar in relation to s 527C as being that it 'is not restricted to offences of a dishonest nature but relates to any unlawful activity such as the sale of drugs.' 17 The contention, as the Appeal Panel understands it, is that a thing may be unlawfully obtained in circumstances where the unlawful event that taints the thing may not be affected in any sensible way by dishonesty. 18 Murphy J in Grant v The Queen in a separate judgment agreeing with the conclusions of the other judges gives an example that might illustrate this point. (The question in that case was whether money derived from the original thing that was the proceeds of the unlawful transaction fell within the meaning of a 'thing unlawfully obtained'). 19 Murphy J's example is that of the receipt of banknotes by a legitimate trader from a starting price bookmaker. In this example the banknotes (assuming for the moment that they were the exact ones that had been paid to the bookmaker by the punter and were therefore covered by the offence provision) resulted from a genuine transaction freely entered into. 20 In this case the argument is that because the modern construction of s 527C allows for possession of a thing to be the subject of prosecution when the thing was derived from a transaction, admittedly unlawful but free of any dishonesty (or fraud or stealing), then s 527C could not be characterised as in all circumstances being one 'involving fraud, dishonesty or stealing.' 21 In our view this submission is flawed in that it seeks to shift the focus away from the object of s 527C to the prior transaction from which the thing now in the possession of a defendant has emanated. 22 The judgments in R v Chan (1992) 28 NSWLR 421 (Court of Appeal, Mahoney JA, Hunt CJ at CL and Abadee J) are, as the Tribunal noted, helpful. That case dealt what the issue of what is required to be proven before a thing can be 'reasonably suspected' to be stolen or otherwise unlawfully obtained. 23 The defendant was charged with the offence of goods in custody. Over 21,000 Australian bank notes totalling $621,000 were found in the possession of an unemployed defendant in a cupboard in his home unit. The Police led no evidence as to what prior transaction might have given rise to the defendant having this amount of cash in his possession. The Court ruled that there was no error in the course adopted by the Police. The Court emphasised that the essential focus of the offence was on the defendant's explanation. Moreover the trial court was not required to form the view that the most likely explanation was that the thing was stolen, merely that such a possibility could be reasonably entertained in the circumstances: see, for example, per Mahoney JA at 424. The central task before the trial court was to assess the plausibility of the explanation of the defendant as to how or she came into possession of the thing: see, for example, per Hunt CJ at CL at 426. 24 So the focus of the offence is on the candour, honesty and plausibility of the defendant's explanation. 25 The offence also needs to be seen in its wider social context. The core object of the goods in custody offence (s 527C) is to curtail unlawful activity by placing an impediment in the way of a secondary trade in the product of unlawful activity. In that way honest transactions and dealing are upheld. 26 For these reasons it is, in our view, appropriate as the Commissioner has done and as the Tribunal did in the decision under appeal, to treat the offence of goods in custody as one 'involving dishonesty' within the meaning of cl 11 of the Regulation. Looking Behind the Conviction 27 The Tribunal did not accede to the second submission made before it, that it look to the circumstances surrounding the offence in this case to ascertain whether it could be said to have involved any dishonesty. As has been customary in the Tribunal in dealing with refusals on grounds regarded as mandatory, the Tribunal simply satisfied itself that the objective facts upon which the Commissioner relied were made out. In this instance the questions were did the offence fall into a prescribed category, did it meet any penalty threshold and was it within the last 10 years. 28 In this regard, we see no reason to depart from the observations made by the President sitting at first instance in the cases of Commissioner of Police v Bourke and others [1998] NSWADT 1 and Doyle v Commissioner of Police [1999] NSWADT 84. 29 We consider this approach is clearly supported by the terms of s 16 of the Act and cl 11 of the Regulation both of which seek to address the offences which give rise to mandatory consequences in a categorical way. 30 In conclusion, we recognise that like many other cases that have become before the Tribunal since the stricter criteria for security industry licences contained in the 1997 Act came into force in July 1998, drastic work consequences can now attach to an isolated minor conviction. Not infrequently, as in this case, applicants have said that they chose to plead guilty at the time as that seemed the convenient course to adopt. Had they been cognisant of the drastic consequences that would later attach to that choice, they would have adopted a different course and tested the case against them. Order 31 Decision under appeal affirmed. 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.