CITATION: Brandusoiu v Commissioner of Police, NSW Police Force [2009] NSWADT 222 DIVISION: General Division APPLICANT Tiberiu Brandusoiu PARTIES: REPSONDENT Commissioner of Police, NSW Police Force FILE NUMBER: 083197 HEARING DATES: 30 June 2009 SUBMISSIONS CLOSED: 30 June 2009 EXTEMPORE DECISION DATE: 30 June 2009 BEFORE: Montgomery S - Judicial Member Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes (Sentencing Procedures) Act 1999 Security Industry Act 1997 Security Industry Regulation 2007 CASES CITED: Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 APPLICANT D Leamey, solicitor REPRESENTATION: RESPONDENT A Johnson, solicitor ORDERS: 1. The decision under review is set aside 2. In its place the decision is made that the Applicant's licence is suspended for one year commencing 25 April 2008. REASONS FOR DECISION 1 The Applicant holds a Class 1ABC2ABCDF security licence under the Security Industry Act 1997 ("the Act"). He has held a licence since 1990. 2 On 19 March 2008, the Applicant was charged with three offences following an incident on 19 March 2008 ("the 19 March incident"). The Offences originally charged were: 1 Resist or Hinder Police in the execution of his duty. 2 Assault Officer in the execution of his duty. 3 Resist Officer in the execution of his duty. 3 The Commissioner contends that the Applicant positively interfered with a police officer who was conducting an investigation into a possible theft and behaved in a physically aggressive way towards that officer. 4 The Applicant contends that there was no valid basis for the charges. His version of the 19 March incident raises a number of issues including abusive and excessive behaviour, discrimination, harassment, unreasonable and unlawful arrest, and unnecessary use of force on behalf of Constable Robert Darkin, the arresting officer. The Applicant asserts that he tried to intervene to calm the situation down as Constable Darkin was acting aggressively and abusively towards his wife, Angela Brandusoiu ("Angela"), for no proper reason. The Agreed Facts 5 It is not in dispute that shortly after the 19 March incident and prior to service of the notice of revocation, the Applicant sought legal advice and lodged complaints about the behaviour of Constable Darkin with the Police Integrity Commission; Human Rights and Equal Opportunity Commission; NSW Ombudsman; and ICAC and Paul Lynch MP State Member for Liverpool. It is also alleged that Constable Darkin stalked Angela. On 31 March 2008 Angela made an application for an Apprehended Violence Order at Liverpool Local Court and also commenced a private prosecution against Constable Darkin for Assault. 6 As a result of discussions between the Police Prosecutor and the lawyer for the Applicant, mediation was undertaken. A compromise was reached - the Applicant and Angela discontinued their actions against the Police and the charge of "assault officer in execution of duty" was withdrawn. The Applicant pleaded guilty to the other charges and Magistrate Giles in the Liverpool Local Court found the matters proved but no convictions were recorded, under section 10 of the Crimes (Sentencing Procedures) Act 1999 and the Applicant received a 12 month Good Behaviour Bond for each offence. The Magistrate appears to have imposed a concurrent Bond for the offences. The Police Prosecutor supported the request for section 10 to be applied. The Crown did not appeal the penalty. 7 The Facts Sheet prepared by Constable Darkin was amended by agreement between the parties once the charge of Assault Police was withdrawn. The Agreed Facts as tendered to the Magistrate stated: About 2.10 pm on Wednesday the 19th of March 2008 Police approached an arcade that joins Macquarie Street Mall and George Street Liverpool As Police entered the Hanwell Service Way they have noticed two females looking at a pair of sunglasses. At this time police noticed that the sunglasses still had a price tag or similar attached. Police have noticed a case on a small brick wall. This brick wall separated the females and police. As Police approached the females they have noticed that the ACCUSED Angela BRANDUSOIU had a shoulder strap large bag over her left shoulder. On closer inspection Police have noticed a large amount of black sunglass cases within the bag. Police formed the reasonable suspicion that the ACCUSED had possible stolen or otherwise unlawfully obtained property within the bag and attempting to sell these items. At this time all aspects defined under the Law Enforcement (Powers & Responsibilities) Act 2002 were complied with. Police requested for some identification from the ACCUSED which she provided a current New South Wales driver's licence. Police commenced to record the ACCUSED details in their Official Police Notebook, the ACCUSED shouted "I am going to get my husband." The ACCUSED has then taken off, through the arcade and disappeared into the Macquarie Street Mall area out of sight of Police, whilst still in custody of the bag. About 2 minutes later, the ACCUSED returned with a male, now known as Co-ACCUSED Tiberiu BRANDVISOIU. The Co-ACCUSED has approached police ranting and raving on why police were speaking to his wife, the ACCUSED. Police felt threatened and directed the CO-ACCUSED to back away or he would be arrested for hindering a police investigation. The ACCUSED positioned himself in between police and his wife refusing to allow police to speak to his wife the ACCUSED. Police noted at this time the original bag that the ACCUSED was carrying no longer contained the black coloured glasses cases that were previously sighted within the bag. OFFENCE 1: Co-ACCUSED HINDER POLICE INVESTIGATION Police attempted to speak to the ACCUSED however the Co-ACCUSED cut over the top of the conversation and continued to step in between police and the ACCUSED preventing police speaking to her. As the Co-ACCUSED did this, police have attempted to gain a reactional gap and remove the Co-ACCUSED from the direct path of police. Police have stated, "Again, I am directing you to leave or you will be placed under arrest." At this time the Co-ACCUSED has stepped back in towards police, and as a result police have attempted to effect the arrest on the Co-ACCUSED when the ACCUSED has prevented this from happening by stepping in between the Co-ACCUSED and Police. Police have pushed the ACCUSED out of the way by using both hands and it was at this time that the Co-ACCUSED shouted out, "Get your hands off my wife." As Constable DARKIN stepped back he has disbursed a one (1) second burst of Oleoresin Capsicum Solution into the face of the Co-ACCUSED, the Co-ACCUSED was wearing sunglasses at the time and it appeared to have little to no effect at this time. Constable DARKIN has called for further assistance at this time. The Co-ACCUSED was informed at this point that he was under arrest for hinder and assault police. Several times by Constable DARKIN, each time this was stated the ACCUSED said, "No." OFFENCE 1: HINDER POLICE INVESTIGATING ACCUSED Constable DARKIN has again attempted to place the Co-ACCUSED under arrest, it was at this time the ACCUSED has deliberately stood in Constable DARKIN'S way, grabbing both his arms and shouting out "No." The Co-ACCUSED was heard to shout, "Don't touch my wife, several times at this time. It was at this time that Constable DARKIN has again disbursed a one (1) second of Oleoresin Capsicum Solution into the face of the Co-ACCUSED. Constable DARKIN has again pushed back the ACCUSED and shouted, "Get back." It was at this time that other Police attached to Liverpool arrived at the location, Police has grabbed hold of the Co-ACCUSED at this time and attempted to place him under arrest, the Co-ACCUSED at this time continued to intervene by assisting her husband, and had to be pushed back several times by police to keep her away. Three police struggled with the ACCUSED all standing for a period of time before the ACCUSED was forced to the ground. Whilst on the ground a struggle took place in an attempt to handcuff the ACCUSED. The ACCUSED continued to struggle by thrashing his body about in a violent manner until he was handcuffed. Once the ACCUSED was secured by police, police have placed the Co-ACCUSED under arrest for hinder police in the effect of an arrest. Both ACCUSED and Co-ACCUSED were walked back to Liverpool Police station where they were introduced to the Custody Manager. There both were read and explained the Caution and Summary of Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002 LEPRA. There they both signed stating that they understood their rights whilst being held in police Custody. Police did not offer the ACCUSED or Co-ACCUSED the opportunity to participate in an Electronically Recorded Interview due to the aggressiveness showed by both ACCUSED and Co-ACCUSED towards Constable DARKIN whilst in the Charge room. Both ACCUSED and Co-ACCUSED are now charged with the matters now before the Court. 8 Notwithstanding that agreed facts were tendered to Magistrate Giles at the Liverpool Local Court, there is no agreement between the parties in regard to what actually occurred during the 19 March incident. The account offered by the Commissioner differs significantly from that of the Applicant. 9 It is not in dispute that the Applicant's record also shows a 1992 matter of culpable driving occasioning grievous bodily harm, a 1995 stealing matter and a 1997 common assault matter. The 1992 matter concerned a situation where a passenger was injured. The Applicant was disqualified from driving and ordered to undertake community service. The 1995 matter involved $70 worth of books for which he received a fine. The 1997 matter resulted in the Court finding the common assault charge proved and proceeded without conviction under section 556A of the Crimes Act 1900. 10 On 25 March 2008, a delegate of the Commissioner determined to revoke the Applicant's security licence. The delegate relied on section 26(1)(d) of the Act and clause 29 of the Security Industry Regulation 2007 ("the Regulation"), and considered it to be contrary to the public interest for the Applicant to continue to hold the licence. An internal review affirmed the decision. 11 The Applicant applied to the Tribunal for external review of the determination to revoke his licence. The matter came before me for hearing on 26 and 30 June 2009. Following the hearing I set aside the Commissioner's decision and made a fresh decision and gave brief reasons for my decision. The Commissioner has sought written reasons for the decision and more detailed reasons are now provided. Relevant Legislation 12 Section 26 of the Act provides: "26 Revocation of licence (1) A licence may be revoked: (a) (Repealed) (b) if the licensee: (i) supplied information that was (to the licensee's knowledge) false or misleading in a material particular in, or in connection with, the application for the licence, or (ii) contravenes any provision of this Act or the regulations, whether or not the licensee has been convicted of an offence for the contravention, or (iii) contravenes any condition of the licence, or (c) (Repealed) (d) for any other reason prescribed by the regulations. (1A) 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. (2) The Commissioner may revoke a licence by serving on the licensee, personally or by post, a notice stating that the licence is revoked and the reasons for revoking it. (3) The revocation of a licence by such a notice takes effect when the notice is served or on a later date specified in the notice. Note. Section 31 requires the licensee to immediately surrender the licence if the licence is revoked. (4) The Commissioner may, by serving a further notice on the holder of a licence, cancel a notice revoking a licence before the notice takes effect. 13 Clause 29 of the Regulation provides: "29 Revocation of licence—additional reasons: section 26 (1) (d) For the purposes of section 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." The Commissioner's case 14 The Commissioner contends that the issue to be determined is whether the Applicant can be held out to the public as a person who will use his security licence for the good order of society and whether he can be trusted to work cooperatively with the police as a security licence holder. 15 Ms Johnson pointed to the fact that the Applicant pleaded guilty to two charges, one of resisting an officer in the execution of his duty and the second of resisting or hindering a police officer in the execution of his duties. Ms Johnson submitted that the fact that the pleas of guilty were entered into as part of the mediation does not detract from the fact that guilty pleas were entered. 16 With respect to the 19 March incident the Commissioner relies on the evidence of several police officers. The most significant evidence is that of Constable Darkin, Sergeant Ivan Draper, Sergeant Graham Hibbs and Constable Michael Butterfield. Constable Darkin's evidence. 17 Constable Darkin's evidence is that as part of his duties, he was patrolling in uniform and stopped to speak to Angela and her friend. He became suspicious that Angela was in possession of stolen sunglasses and was attempting to sell them. He estimated that she had fifteen to twenty pairs of sunglasses. 18 He took Angela's licence to check her identity. She left saying that she wanted to get the Applicant. Constable Darkin said he wasn't in a position to stop her because there was a wall in the way. Constable Darkin said that Angela returned with the Applicant and that the Applicant was immediately aggressive towards him. The Applicant insisted on getting between Angela and Constable Darkin, interfered with Constable Darkin's attempts to speak to Angela and became physically aggressive towards him. 19 Constable Darkin said that he told the Applicant that he was under arrest but the Applicant resisted. The Applicant grabbed hold of the front of his shirt and pulled him in towards him using his left hand whilst his right arm was raised with a closed fist. He said that the Applicant swung his fist towards his face. The top three buttons of Constable Darkin's shirt were torn away during the scuffle. 20 Constable Darkin said that he was in such fear for his own safety that he used his capsicum spray on the Applicant. The Applicant was wearing sunglasses at the time and the capsicum spray appeared to have little to no effect at this time. He said that he used his spray for a second time but that even after being sprayed with capsicum spray the Applicant maintained a fighting stance with both his hands clenched into fist and refused to get on the ground. His evidence was that in his six years of policing he has only used capsicum spray about ten times and this was one of those times. 21 Constable Darkin called for back-up and a further three police officers arrived. It took four police officers to subdue the Applicant. 22 Constable Darkin didn't change his version of the 19 March incident significantly under cross-examination and his evidence was consistent with the account that he initially gave of the incident. 23 He denied that he had in fact stalked the Applicant and Angela but conceded that they had coincidently had medical appointments in the same medical surgery in Liverpool. 24 He conceded that it is possible that his own girlfriend was a friend of Zelka Lazarevic, who had corroborated the evidence given by the Applicant and Angela. Ms Lazarevic failed to appear to give evidence at the hearing. 25 Mr. Leamey cross-examined Constable Darkin in relation to service of the Court Attendance Notice regarding Angela's private prosecution. Constable Darkin provided an explanation as to how the Court Attendance Notice came to be provided to him and contradicted the statement by Monica McKenzie, solicitor, which stated that she served him personally. Constable Darkin denied that he was served personally. Sergeant Draper's evidence 26 Sergeant Draper said that he arrived and he saw the Applicant was in a fighting stance. He resisted the attempts to place him under arrest. He disagreed with the suggestion that the Applicant was just wiping capsicum spray from his eyes. He gave evidence that he has known Constable Darkin throughout his career as a police officer and that the conduct attributed to him is not consistent with his knowledge of Constable Darkin. Detective Sergeant Hibbs' evidence 27 Detective Sergeant Hibbs gave evidence that he saw the Applicant thrashing on the ground with three officers having difficulty subduing him. Constable Butterfield's evidence 28 Constable Butterfield was not called for cross-examination however he provided a written statement that the Applicant was behaving in a physically aggressive way towards police even when more than one police officer turned up. 29 Ms Johnson submitted that the evidence from the police officers who attended the 19 March incident is the more credible of the two stories. She submitted that it is not plausible that the police officers were really trying to do a retrofit to cover up Constable Darkin's inappropriate and aggressive behaviour. She submitted that the small inconsistencies between the evidence of the various officers suggest that their evidence reflects their own recollections of a melee from four different perspectives. She says that it is entirely consistent with truthful evidence that each of the officers who arrived at different times would have a slightly different recollection of what happened. 30 She contends that where it differs from that of the police officers, the Applicant's evidence is of less credit. She says that the Applicant and Angela were determined to stick to their story and determined not to accept any aspect of the police evidence as having some credibility and that they were much more exaggerated in their evidence. For example, she referred to Applicant's evidence about Constable Darkin's use of the capsicum spray. He stated that the spray was used three times and that there was a ten second burst, a fifteen second burst and a ten second burst. Sergeant Draper's evidence was that there are eight one second bursts in a can. Three cans of capsicum spray would have been needed and the Applicant made no mention of fresh cans being produced. Ms Johnson submitted that Constable Darkin's evidence that he gave one second bursts of capsicum spray is the more credible. 31 She submitted that it is quite unlikely that the Applicant and Angela were controlled and restrained at all times and that they did absolutely nothing to provoke a sudden attack on them by the police including being sprayed with capsicum spray three times. She says that the conduct attributed to Constable Darkin is entirely inconsistent with the conduct of a police officer who has six years experience; it is inconsistent with what Sergeant Draper said he knows of Constable Darkin, and it is consistent with the ordinary practices of a police officer. 32 Ms Johnson submitted that it is likely that the Applicant and Angela discussed the 19 March incident and that their story became more and more embellished so that Constable Darkin was characterised as being entirely unreasonable, racist, rude and aggressive when in fact that wasn't the case. 33 Ms Johnson further submitted that a security officer needs to remain calm in situations of provocation and react instinctively to help a police officer. In this case the Applicant did not do so and pleaded guilty to two offences that he hindered police. 34 She also contends that the references provided on behalf of the Applicant are of little to no weight. They mostly predate the 19 March incident and the Applicant's evidence was that none of those who gave a reference after that time knew that the Applicant had been charged with it or that he pleaded guilty to the offences. The Applicant's case 35 The Applicant contends that the single issue concerns the Public Interest. He says that he is a fit and proper person and that it is not contrary to the public interest for him to hold a security licence. There are no complaints about the Applicant in his role as a security guard or operator or with any security officers supervised by him. 36 The Applicant does not dispute that he pleaded guilty to the two charges. Mr Leamey referred to the reference by the police prosecutor to the 19 March incident as 'one relatively minor episode'. He says that the Applicant has been adequately dealt with and punished. He pointed to the provisions of section 10 of the Crime Sentencing and Procedure Act and submitted that the Magistrate will have taken into account the Applicant's character, antecedents, age, health and mental condition, also the trivial nature of the offence, the extenuating circumstances in which the offence was committed and any other matter that the court deemed fit. The Court made a finding of fact based on the matters before it and determined that the matter be dealt with pursuant to section 10. Mr Leamey pointed to Judicial Commission Sentencing Statistics for the offences and submitted that these confirm that the penalty imposed is at the lowest end of the available scale. 37 Mr Leamey submitted that there is no mandatory basis to exclude the Applicant from having a licence. He conceded that the Applicant has earlier convictions but submitted that there is nothing in the antecedents that would require the Commissioner to revoke his security licence or refuse to grant a licence. 38 The Applicant also relies upon numerous references provided in relation to both himself and his business. He also relies on evidence that shows acknowledgement given by Superintendent Commander Darcy for the assistance that he gave to Police on 14 November 2001 in apprehending two offenders. He provided the assistance despite that fact that he had been denied a security licence at that time. Mr Leamey submitted that this demonstrates the Applicant's commitment to the public interest and welfare. 39 With respect to the 19 March incident the Applicant relied on his own and Angela's evidence. The Applicant and Angela both provided handwritten account of the 19 March incident prepared in mid 2009. Those accounts are corroborated by an independent witness, Zelka Lazarevic. Ms Lazarevic failed to attend to give evidence at the hearing. 40 The Applicant also relies upon photographs showing injuries that he and Angela incurred in the 19 March incident and Medical Reports in relation to those injuries. Angela's evidence 41 Angela's evidence is that at around 2.00 pm on 19 March, 2008, she and her friend Zelka Lazarevic were speaking. They stopped near the brick wall between the carpark and the arcade that joins Macquarie Street Mall and George Street Liverpool so that Angela could show Zelka a new pair of sunglasses that she had just purchased. 42 They were approached by Constable Darkin who began to unfairly question her. Angela handed her licence over. She was cooperative, although she felt uncomfortable with Constable Darkin's manner. Angela said that she asked Constable Darkin whether she could leave so that she could get her husband and that Constable Darkin allowed this. She left and subsequently returned with the Applicant. 43 Angela notes that shortly after she and her husband returned, Constable Darkin became hostile towards them both and that he became physically aggressive. She said that he tore up her driver's licence and threw it at her. A copy of the torn licence was put in evidence. Angela stated that Constable Darkin physically assaulted her by pushing her several times, and by slapping her across the face with the back of his hand. The photos in evidence show injuries to her face and chest, not to her shoulders. The medical records confirm the injuries. 44 Angela said that the Applicant positioned himself between her and Constable Darkin in order to protect her, and that Constable Darkin became physically aggressive towards the Applicant as well. 45 Angela said that she formed the view that Constable Darkin's conduct was not appropriate and wanted to go to the police station and report him. Despite that, both she and the Applicant were arrested and charged. They followed up their concerns by the complaints to with the Police Integrity Commission; Human Rights and Equal Opportunity Commission; NSW Ombudsman; and ICAC and Paul Lynch MP State Member for Liverpool. This was done prior to the revocation of the Applicant's licence. 46 Angela also contends that in the period after the 19 March incident Constable Darkin had kept her under observation unnecessarily. She considered that Constable Darkin's behaviour amounted to stalking, harassment and intimidation. She pursued those complaints against Constable Darkin by applying for an Apprehended Violence Order. The Applicant's evidence 47 The Applicant's provided a detailed account of the 19 March incident. His evidence with respect to the 19 March incident is consistent with Angela's evidence. He said that Constable Darkin was acting aggressively and abusively towards Angela for no proper reason and that he tried to intervene to calm the situation down. 48 He denied that he acted in the manner asserted by Constable Darkin and he asserts that the violence that took place was on the part of Constable Darkin. He denied acting in a threatening manner or that he had taken a threatening stance. He said that he was sprayed three times with capsicum - a ten second burst, a fifteen second burst and a ten second burst. He maintained that the conduct that the officers construed as his threatening stances was because he was wiping his eyes in response to being sprayed by the capsicum, looking around and being concerned for his balance and wellbeing. 49 He denied that Constable Darkin had told him that he was under arrest or that he ignored any directions that Constable Darkin had given him. He said that there was no valid basis for his arrest and that Constable Darkin's conduct was inappropriate and illegal. Mr Leamey's submissions 50 Mr Leamey submitted that Constable Darkin behaved in ways that would not usually be expected of a police officer. He referred to the evidence that Constable Darkin was patrolling alone and that when he called for back up he used a mobile phone. He argued that Police officers do not normally go one out and they do not normally use a mobile phone to contact other officers, they normally use a radio. No search was undertaken of Angela's bag in relation to the sunglasses. 51 Mr Leamey referred to the statements filed on behalf of the Commissioner and the numerous variations between the original statements prepared in relation to the charges against the Applicant and those prepared for these proceedings. He submitted that the later statements were deliberately and unreasonably written in a way to strengthen the case against the Applicant. Constable Darkin said that he typed the statement himself using a template. Sergeant Draper said that the statement had been prepared for him and that he had signed it. 52 Mr Leamey submitted that Constable Darkin's credibility is in issue. He contends that Constable Darkin's demeanour as a witness was smug at times, and inappropriate. 53 It is not in dispute that Constable Darkin didn't arrest Angela for any offence in relation to the sunglasses. Mr Leamey submitted that Constable Darkin's assertions as to his placing the Applicant under arrest was not corroborated by the other police officers. He argued that the evidence suggests that the Applicant was not under arrest until the very end of the incident. He contends that it is unbelievable that Constable Darkin had formed the view that Angela had sunglasses in her custody and that he did not follow her and apprehended her. He says that Constable Darkin didn't do that because his version is just a retrofit and it is just implausible. 54 Mr Leamey submitted that the evidence of the Applicant and Angela stood up to cross-examination. Therefore the position is that the relevant facts concerning the 19 March incident would be the facts that were agreed by the police. He contends that 1992, 1995 and 1997 matters should not influence the determination of these proceedings. He submitted that the Applicant is of good character. In the circumstances there is no reason to have doubts about whether the Applicant can cooperate with police if he is working in the security industry. His record in the industry from 1990 is excellent. He is not just a security guard but is actually involved in the operation of a security business. Mr Leamey submitted that the Applicant is a suitable person to hold a licence and it is not contrary to the public interest for him to do so. Discussion 55 The task of the Tribunal is to determine what is the correct and preferable decision, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law: section 63 of the Administrative Decisions Tribunal Act 1997. Most of the material before the Tribunal concerns the 19 March incident and it is common ground that the events of that day are significant. 56 The Applicant has held a security licence since 1990 and there is no suggestion that there were any incidents in the course of his role as a security guard that need to be taken into account. It is common ground that the Applicant has previously come to the attention of the police, however it is my view that those matters not do not assist me in determining this matter. 57 One of the few areas of agreement between the parties is that both acknowledged that it would be extremely difficult for the Tribunal to now determine the truth of the original allegations. I agree. It is largely a question of Constable Darkin's evidence against that of the Applicant and Angela. To a great extent with the police officers who arrived on the scene later were not in a position to give evidence of what had already transpired. The other witness who may have been able to be of assistance, Zelka Lazarevic, was not available for cross-examination. 58 I did not find Constable Darkin, the Applicant or Angela to be impressive witnesses. Each was largely entrenched in the position that they had adopted following the 19 March incident and with the exception of minor concessions, they were not moved from those positions by cross-examination. 59 As a consequence, I have been left in the position where I am unable to decide to the required standard what happened in the 19 March incident. 60 I am inclined to the view that the conduct that is attributed to Constable Darkin is implausible. I find it highly unlikely that an experienced police officer in that situation would behave in the way that Constable Darkin is said to have behaved. However, I agree with Mr Leamey's suggestion that in some respects Constable Darkin had departed from what could be regarded as common policing methods. 61 There are aspects of the Applicant's case that I also find implausible. For example, it is implausible that Constable Darkin would have sprayed the Applicant with capsicum three times for the length of time that was asserted. It is more likely that there were two or three short bursts of spray. 62 Of most significance is whether Constable Darkin acted inappropriately, giving rise to the events that followed or whether the Applicant acted inappropriately and that gave rise to the events. In my view it is conceivable that the police officers who arrived to provide back-up to Constable Darkin would have interpreted what they saw in the light of Constable Darkin's call for assistance. They were not in a position to know what had given rise to the scuffle that they observed. They may have assumed that the Applicant was the one who had acted inappropriately and could have interpreted his behaviour in that light. It is conceivable that in such circumstances defensive mannerisms might be interpreted as aggressive. 63 If the Applicant's version of events is correct, he was subject to an assault by Constable Darkin and the rest of the events can be explained. If the Applicant acted in the way that Constable Darkin alleges then the actions of Darkin can be explained. In the circumstances, on the evidence before me I am unable to conclude which was the case. 64 In my view, it is appropriate that I accept the Agreed Facts as tendered to Magistrate Giles in the Liverpool Local Court as the correct version of the 19 March incident. 65 The Applicant pleaded guilty to the charges of 'Resist or Hinder Police in the execution of his duty' and 'Resist Officer in the execution of his duty'. These are factors that I am able to take into account. 66 The Commissioner has asserted that it is not in the public interest for the Applicant to continue to hold a security licence. The authority conferred upon the holder of a security licence is granted with the clear expectation that the licensee utilises that authority for the good order of society and for the well being of its members. The Applicant's individual interest in retaining his security licence must be subordinate to the public interest in ensuring public safety. This position is supported by the decision of Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 where it was stated at 681: "The purpose of the reference to 'public interest is to ensure that private interests are not only matters taken into account: to make clear that the interests of the whole community are matters for the Commissioner's consideration. The effect of the reference is to amplify the 'scope and purpose' of the legislation." 67 The public interest in the context of the Act requires paramount consideration be given to public safety. Having considered the material before me, with a focus upon public safety, it is my view that the conduct of the Applicant as set out in the agreed fact was incompatible with the role of a security guard. I agree with Ms Johnson's submission that a security officer needs to remain calm in situations of provocation and react instinctively to help a police officer and that the Applicant did not do so. 68 It is of no consequence that the Applicant's conduct was not in the course of his duties as a security guard. Nor does the fact that the pleas of guilty were entered into as part of the mediation detract from the fact that guilty pleas were entered. It was appropriate that the Commissioner should take action against the Applicant in light of that conduct. 69 However, it is my view that the correct and preferable decision was to suspend the Applicant's licence for a period of one year. Accordingly, the Commissioner's decision to cancel the licence should be set aside. 70 I am conscious of the fact that the Applicant has been without his licence for more than one year. Accordingly it is my view that he should be permitted to return to the industry immediately. ORDERS 1. The decision under review is set aside 2. In its place the decision is made that the Applicant's licence is suspended for one year commencing 25 April 2008. 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.