Patterson v Commissioner of Police, New South Wales Police Force [2013] NSWADT 188

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Patterson v Commissioner of Police, New South Wales Police Force [2013] NSWADT 188 Hearing dates: 14 August 2013 Decision date: 22 August 2013 Jurisdiction: General Division Before: G Walker, Judicial Member Decision: Decision under review set aside Catchwords: Security industry - guard licence -crime scene preservation -duty to public-public interest Legislation Cited: Administrative Decisions Act 1997; Security Industry Act 1997; Security Industry Regulations 2007 Cases Cited: Blissett v Commissioner of Police [2006] NSWADT 114; Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657; Feuerstein v Commissioner of Police [2007] NSWADT 114; Hill v Commissioner of Police [2002] NSWADT 218; Infarinato v Commissioner of Police [2004] NSWADT 43; IJ v Commissioner of Police [2003] NSWADT 230; Jovanovic v Commissioner of Police [2010] NSWADT 115; Jones v Dunkel (1959) 101 CLR 298. Category: Principal judgment Parties: Phil Patterson (Applicant) Commissioner of Police, New South Wales Police Force (Respondent) Representation: Counsel Mr Miller (Applicant) Kazi Portolesi Lawyers (Applicant) Bartier Perry (Respondent) File Number(s): 123370

reasons for decision

Background 1Until 11 October 2012 the applicant Phil Patterson held a category 1AC security licence authorizing him to perform security activities as an unarmed guard and crowd controller. He had been employed as a security guard since obtaining his security licence in 2000. 2On 24 September 2012 the applicant received a notification of revocation of licence under s 26(1)(d) of the Security Industry Act 1997 (the SI Act) and clause 29 of the Security Industry Regulations 2007 (the SI Regulations). The applicant sought an internal review of the decision, as a result of which the Commissioner's decision was held to stand. On 20 December 2012 the applicant applied to this tribunal for a review of the revocation decision and for a stay of the decision while the matter was awaiting determination by the Administrative Decisions Tribunal. The stay application was unsuccessful. 3The applicant was born in 1975 in New Zealand and came to New South Wales in 1996 at the age of 21. He is now a permanent resident of Australia, is married and lives at Emerton, New South Wales. 4He was first employed as a security guard to assist with security for the Olympic Games and subsequently worked at Westfield Parramatta and various venues in central Sydney. In about December 2011 he was engaged by various security companies as a security guard at a cabaret known as "The Club" in Bayswater Road, Potts Point, in the Kings Cross area. He worked every Friday and Saturday from 9 p.m. to 6 a.m. 5On the night of 3 to 4 August 2012, while the applicant was on duty at The Club, an affray occurred during which a Mr Jake Bernard Firrell, aged 22, suffered serious head injuries as a result of an assault by a group of men. Some other guards attended to Mr Firrell and placed him in a taxicab. Following the incident, the applicant arranged for some blood on the stairs from the courtyard at the front of The Club to be cleaned away and later completed a brief security incident log entry which noted that the incident involved violence and aggression, as well as intoxication, but failed to mark the box indicating injury. 6As a result of the incident the applicant was charged with two counts of hindering the discovery of evidence within s 315(1)(b) of the Crimes Act 1900. It was alleged that he had made a false entry in the security log with the intention of hindering the discovery of evidence concerning a serious indictable offence, namely an assault occasioning actual bodily harm, and causing a crime scene to be destroyed with the intention of hindering the discovery of evidence concerning the same serious indictable offence. 7The charges were heard at Downing Centre Local Court on 12 March and 3 April 2013. Following the hearing, the magistrate dismissed both counts on the ground of lack of evidence of the requisite intention (exhibit R2, tab16). 8The issue in the present proceedings, therefore, is whether it is, or is not, in the public interest within the meaning of clause 29 of the SI Regulations and s 26(109)(d) of the SI Act that the applicant should hold a category 1AC or other security licence.