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. Applicant's evidence 9At the hearing before the tribunal the applicant gave oral evidence. He adopted his statutory declaration of 21 May 2013 (exhibit A1) and his two police records of interview dated 19 September 2012 (exhibit A2). He said that at the time of the incident on 3 August he was on duty on the side door of the venue facing Bayswater Road. Later in the evening an altercation started in the foyer near the front door involving two groups of two young women. He did not see the dispute start but remained at his post near the door as two other guards, Stephen and Suli (surnames do not appear to have been widely used in this setting) were handling the matter. 10The other two guards moved the group outside and directed them towards the road. The applicant remained by the door as it was closing time and he had to prevent entry. 11The two groups then started to become aggressive, for what reason the applicant did not know. They were yelling at each other at close quarters and the guards were trying to separate them. The applicant then called the street patrol by radio, signalling a "code yellow" as a warning that a fight appeared to be imminent. The applicant then saw two groups of men pushing each other, about 10 m away, but remained at his post. The two groups of girls then came towards where the applicant was standing and began pushing each other. By this time the guards from the street patrol were with the two groups of men attempting to break up what had now become a rowdy altercation. The applicant separated the two groups of women, who were now near the door, by pushing one group inside, and then ushered the other group of two women towards a cab, which they boarded. He then returned to try to help separate the two groups of men. 12After they had been separated, the applicant returned to his post and saw Stephen apparently giving first aid to a member of one group. One group of men left the scene and two of the street patrol men escorted two others, including the injured man, to a taxi. At no time did the applicant speak to the two men who departed in the cab or to the street patrol guards, nor did he talk to Stephen about the group he was assisting. 13There was some blood on the steps leading to Bayswater Road, and the applicant arranged for it to be cleaned up. He considered that as a normal reaction as by that time everyone had left and he did not think there was any question of preserving criminal evidence. 14The manager at the club that night was Jarrod Rust. The applicant spoke to him about what had happened. The applicant said that at no time did he see any man punching another, but he did see one man lying on the ground with some blood around his mouth when he was ushering the group of girls out. He did not know at how the man came to be there. 15He filled out the security log (exhibit R2, tab 2) at 4:20 a.m. on 4 August. He did not mark the square indicating injury because he did not know how serious it was and had not discussed it with the other guards who had apparently been giving first aid. He had simply thought Mr Firrell had a bleeding nose. Had he known the injuries were more serious, he would have marked that box. 16He had not called the police or an ambulance because the practice was for the street patrol security guards to do that. He had never himself ever called the police but had often summoned the street patrol, so he expected that they would call the police or an ambulance if they thought it necessary. 17He had not received any specific crime scene preservation training and was unaware of the condition relating to that matter in the club licence. He had received no specific instruction from Mr Rust about crime scene preservation, but now understood what was involved and the need to secure the area. At the time he had not considered the spilt blood to be a crime scene but now knew that it could be. He understood the higher duty of care expected of a security guard and was willing to undertake further training. 18In cross-examination Mr Patterson said his training included first aid and an explanation of his duties and of the requirements of public safety, including the need to call the police in the event of an altercation. He also knew that head injuries can be serious 19He had assisted one group of young women into a cab. They had gone willingly and were frightened of the other group of women. He then saw the man on the ground and attempted to break up the group near him where there was much pushing by the men, while one of the women was screaming at the man on the ground. He did not see one of the women kicking the fallen man but did observe a friend of Mr Firrell attempting to protect him. He was aware that the victim was hurt and that others were attempting to get at him, and for that reason became involved to try to protect him. 20Having separated the two groups, the applicant returned to his post at the door. He saw Stephen attending to Mr Firrell over by the water fountain but could not specifically observe that he was administering first aid. He recalled seeing Mr Firrell being assisted into the cab but did not recall that he or had been wearing a different T-shirt. 21In relation to the incident log, he wrote what he recalled but did not attach a more complete report. He agreed that the log entry was not in fact correct but did not believe he had failed in his duty that night. 22When he had started work at The Club, he had been shown over the venue before his first shift began by Fono, the head guard, who explained how the venue operated. He could not recall any mention of the crime scene preservation order or any instruction to call the police if an incident occurred, or how to complete the incident log. His employment at The Club had been terminated shortly after the incident. 23In re-examination the applicant said that when Mr Firrell was with Stephen near the water trough, he could not see what Stephen was doing because other licensed security guards, Suli, Sean (from the street patrol) and Stephen himself, were blocking the view. He knew, however, that they had all received first aid training. He had completed the incident log at the closing of the premises after everyone else had gone, having done so on previous occasions. He had never added a full report to the log and had never been asked to do so. As everyone had left he had not expected any further repercussions from the incident, otherwise he would have added more detail than he had. Respondent's evidence 24Detective-Sergeant Mark Carter gave evidence on behalf of the Commissioner. He adopted his statement and attachments (exhibit R2) and said that Fono, who was employed by the subcontractor CPS Group Security, was supposed to train the other guards at The Club as required by the venue licence conditions. 25There was, however, no record of any training, of any induction package or of any instruction in relation to the crime scene preservation order. 26The applicant had become aware before the interview with police that the victim had suffered a serious assault and that the police had concerns about the conduct of security. It had been the applicant's version of events at the interview that had changed Det.-Sgt. Carter's mind and had led him to conclude that action should be taken about his licence. 27The witness agreed that there was no evidence that the applicant had seen the victim being punched or kicked, but pointed out that the applicant had been near where those actions had occurred. As he had said in his statement at para. 78, the applicant's failure to call police made it impossible to apprehend the perpetrators of the assault. He agreed that no one else had contacted the police either, but said he was not sure of what action the street patrol had taken and the police had assumed that the patrol guards thought others had summoned the police. 28As the applicant was the guard who had completed the log, the police investigators had assumed that he was in charge of security on that night and therefore had a duty to call the police. The street patrol did not complete the incident log and had been summoned by The Club security itself. Although all security guards have the same duties, the others were in different circumstances as the applicant was the one who completed the form and cleaned up the spilt blood, besides being present when the incident occurred. 29The witness agreed, however, that the security log entry was the only evidence to show that the applicant had been in charge of security that night. The street patrol was under no obligation to call the police, as that was the venue's responsibility. In his view the applicant had made a false entry in the log. 30Asked whether Suli, who had supplied the new T-shirt for the victim, was also under a duty to check on Mr Firrell's welfare, the witness said he was not, as the victim was in the care of other licensed security guards. The applicant could not, in his view, take the same attitude as he had filled in the incident log (falsely) and had caused the blood to be cleaned up. He must have been in charge and had at no time said that he was not responsible, as he had completed the incident report. That was the only evidence of obligation; the applicant had felt he was obliged to complete the log and would not have done so if he had not been under any obligation. Respondent's submissions 31The respondent's case that it is not in the public interest for the applicant to hold a security licence was particularized in para. 6 of his written submissions as follows: (i)the applicant was aware that there was a fight but took no steps to call police or make enquiries as to whether someone had called the police; (ii)the applicant was aware that Mr Firrell was on the ground injured as there had been a fight and he had seen blood. The applicant nevertheless took no steps to call an ambulance or to enquire as to someone had called an ambulance; (iii)the applicant saw the injured man being placed in a taxi to be sent away but took no steps to ensure his well-being; (iv)the applicant had been trained in crime scene preservation but arranged for a cleaner to clean away the blood; (v)the applicant was aware of the need to complete a security log of any incidents, recording all relevant details but his completion of the incident report was not an accurate description of what had happened and was deficient. 32At the hearing Mr Mattson submitted that the case was not about how others have been treated but about his own discharge of his responsibilities. A security licence was a privilege and his responsibilities under it could not be delegated. In the event he had not made the appropriate enquiries or called 000 himself. The head guard was Fono, but he was not present that night and accordingly the responsibility of the applicant, as the other two guards present, was personal. 33The applicant had admitted in cross-examination that he had a responsibility for public safety. He had been trained in first aid and knew that head injuries could be serious. He had also been trained to call the police in the event of an incident. 34The tribunal in IJ v Commissioner of Police [2003] NSWADT 230 at [27] had declared that a higher standard is applicable to licensees within the security industry because of the special role it plays in ensuring public order is maintained, in safeguarding community assets and private property and in ensuring that venues are safe. In Feuerstein v Commissioner of Police [2007] NSWADT 114, the tribunal observed at [11] that the Act was designed with the clear intention of providing the community with confidence in a professional security industry, where competence, integrity and accountability were provided and maintained to a high standard. 35When the applicant had returned to the premises after assisting the two women to board the cab, he had seen a fight and the victim on the ground. Mr Firrell and his cousin had referred to his being struck and kicked, once by one of the women. The applicant said he could not recall anything other than the groups pushing each other. He knew, however, that one man was hurt ; he saw blood around his mouth and said he wanted to protect him from further injury. 36Others had taken the victim away, but in cross-examination the applicant said he had not actually seen first aid being administered . Nevertheless, he had not enquired about it. He had arranged for a quantity of blood to be cleaned up but had taken no action despite the evidence of injury. 37It was from those facts that public concerns arose. Other guards were present at the time, but that was not enough -- the applicant had a high personal responsibility in relation to his own conduct. He should have called the police when he returned to his post from assisting the women and helping to break up the fight, but made no enquiries about whether the police or an ambulance had been called. In cross-examination the applicant had admitted that he could have logged the incident in a more detailed manner, but still did not think he had failed in his duty. That raised the question of how he might behave if a similar situation arose again. It was significant that he had not made any enquiries about further training since his licence was cancelled. 38The format of the incident log shows clearly what is required by way of factual information. The fact that the form provides a space of only two lines is irrelevant, because the form makes it clear that a full report can be annexed. The brief report given provided no evidence on which the police could prosecute the perpetrators for assault. It was not for the applicant to assess how much detail was required. 39In his reply on behalf of the applicant, Mr Miller contended that the applicant had had no contact with Mr Firrell. He had endeavoured to break up the scuffle and did so. Other guards had taken the victim into their care and the applicant could see that he was being attended to. As the doors of the premises were still open, he had returned to his post at the side door. He had not spoken to the other guards because they had already departed. He had no general duty to check on Mr Firrell's condition as the other guards were taking care of him and he was entitled to assume that they were doing their job. Det.-Sgt. Carter had conceded that Suli was under no such general duty, for the same reason, and the same should be true for the applicant. As he had stated in the record of interview, he had inserted no names or details in the log because he had none and assumed that other guards would have obtained that information. Consideration 40The tribunal's task is to determine on the balance (preponderance) of probabilities whether the applicant's conduct and qualities are such that it is not in the public interest for him to hold a security licence: Jovanovic v Commissioner of Police [2010] NSWADT 115 at [80]. The tribunal is required by s 63 of the Administrative Decisions Tribunal Act (ADT Act) to decide what the correct and preferable decision is, having regard to the material before it. 41The respondent's grounds for contending that it is not in the public interest are summarized in para.31 (i) to (v) above. As regards ground (i), it is not quite correct to say that the applicant was aware that there was a fight at the time it was occurring. He had summoned the street patrol because a fight seemed imminent. He had seen the results afterwards when the victim was lying on the ground, but not the fight itself. In the first of the two passages relied on by the respondent in this context, it was put to the applicant that there was "a bit of fighting", but the applicant replied "I don't know if it was fighting but they were like, I think there was a bit of pushing and shoving and all that, but that's all I saw" (exhibit A1, first interview, Q 71). In the second, he says only that "they [one group of men] were trying to get to him" (id., Q 84). That is consistent with his evidence at the hearing. 42He had not called the police because the established practice was for the street patrol to do so. That evidence was uncontradicted. In all his time as a security guard he himself had never had to call the police (exhibit A1, first interview, Qs 85 to 91). Further, he and the other guards were outnumbered and were preoccupied with trying to re-establish order (id. Qs 93 to 98). 43The applicant admits the correctness of ground (ii) as far as it goes, but his unchallenged evidence is that he saw blood around Mr Firrell's mouth and thought that he had suffered a bleeding nose or something of that nature. He was unaware of the seriousness of the injuries and had seen other licensed security guards, who he knew to have been trained in first aid, attending to the injured man. 44Det.-Sgt. Carter testified that in those circumstances the other guards could assume that the injured man was being assisted, but the applicant could not, because he was in charge of security at that time, in the absence of Fono, the head guard. The only evidence pointing to the applicant's special responsibility as acting head guard, however, was the fact that he had completed the incident log. From the evidence, however, it appears that the applicant may have filled in the log simply because everyone else had departed and he had done so on other occasions.The absence of any evidence from Fono, from Mr Rust, the duty manager, or from the licensee, Mr Sholtz, is significant on this point. 45The applicant does not dispute the correctness of ground (iii), but in his evidence explained that he did not speak to the other guards before they left the scene and was unaware of the seriousness of Mr Firrell's injuries. As was noted above, he had observed the injured man being attended to by other licensed security guards who had been trained in first aid. He had also seen Mr Firrell walking, apparently unaided, to the taxi (exhibit A1, first interview, Q 134). 46Ground (iv) asserts that the applicant had been trained in crime scene preservation and should therefore have known not to have the blood cleaned away. In his statement (exhibit R2, paras. 34 to 37), Det.-Sgt. Carter reported being told by Mr Beau Sholtz, the club licensee, that all security staff were trained in crime scene preservation and that the applicant specifically had undertaken an induction package that included crime scene preservation. 47The applicant's unchallenged evidence, however, was that his only training or induction for his duties at The Club consisted of a kind of guided tour of the premises conducted by Fono, who explained how the venue operated, but no training in crime scene preservation or any instructions about it. As neither Fono nor Mr Sholtz gave evidence in these proceedings, the tribunal is able to accept the applicant's version of events in this regard with greater confidence, in light of the well-known principles enunciated in Jones v Dunkel (1959) 101 CLR 298. Support for that conclusion is also to be seen in Det.-Sgt. Carter's evidence that he found no record of any training or induction program given to the applicant, a state of affairs he clearly considered unsatisfactory. 48As regards ground (v), there is no doubt that the security log entry dealing with the 3-4 August incident was sketchy and inadequate, to the extent that it may have frustrated police efforts to apprehend the perpetrators. The applicant in particular neglected to tick the box for "Injury". 49The applicant's explanation is that he had not spoken to the other guards about the victim's injuries and by the time he came to complete the incident log everybody else had departed and he did not know the seriousness of the injuries inflicted. He had not made any false statements but omitted to note any injury because he thought only superficial harm had been done. He was not asked to make a full report. He saw no reason to think that the incident would entail any repercussions such as a police investigation and, in particular, as the magistrate also found, had no intention to hinder any such investigation. Nevertheless, he agreed that in retrospect he should have given more detail. 50In Comalco Aluminium (Bell Bay) Ltd v O'Connor (1995) 131 ALR 657 at 681, the court said: The purpose of the reference to public interest is to ensure that private interests are not the 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. 51In the context of this regulatory scheme, the purpose and scope of the legislation to be amplified is the attainment of a professional and safe security industry, free from persons who engage in unprofessional and irresponsible conduct. Paramount consideration is to be given to public safety: Infarinato v Commissioner of Police [2004] NSWADT 43 at [18]. 52That being so, the applicant's personal interest in retaining his licence cannot outweigh the public interest in maintaining full confidence in the professionalism of those involved in the industry. Nor should a decision- maker shy from exercising the discretion merely on the ground that the licensee may suffer hardship or inconvenience or both. All the circumstances of the conduct must be taken into account: Hill v Commissioner of Police [2002] NSWADT 218 at [22]; Blissett v Commissioner of Police [2006] NSWADT 114 at [32]. 53The evidence shows that on the evening in question the applicant made an incomplete and inadequate entry in the incident log in relation to the confrontation that had occurred. To some extent that may be understandable given that he had not seen the fight himself and the other two guards who had attended to the injured man had left the scene. But from the amount of blood that had to be cleaned up, the applicant should have realized that something more than a bleeding nose or other superficial injury might have been involved. It may be significant that the two guards in question, Stephen and Suli, gave no evidence in these proceedings. 54The applicant made no enquiries about Mr Firrell's well-being, but relied on the other licensed guards, who he knew to have been trained in first aid, to take whatever action was required, and remained at his post at the side door, which was still open. The respondent contended that the applicant should have taken a more active role as he was in the position of head guard at the time. The only evidence of that, however, was the fact that he completed the incident log. In my view that fact falls short of establishing that the applicant was in charge of security on the evening in question. There is no evidence to show that the applicant had actually been deputized as head guard and again, perhaps significantly, the actual head guard, Fono, gave no evidence in these proceedings. 55The applicant did not call the police or an ambulance, but he did summon the street patrol. In his evidence he stated that it was the practice for the street patrol to contact the police if necessary and that he himself had never had occasion to do so in his entire 13 years as a licensed security guard. That evidence was uncontradicted. 56The applicant arranged for The Club's cleaners to remove the blood spilt on the front steps but, as the Local Court found, not with any intent to hinder an investigation, which he thought unlikely to take place in any event. His conduct in that regard it appears to have been due to his lack of any training in crime scene preservation. While Mr Sholtz did tell police that new guards were given such training, he did not indicate that he had given it himself, but rather that it had been delegated to other staff, presumably to Mr Sholtz or Fono. But the applicant's uncontradicted evidence was that he had received no such training and that his only induction had consisted of a rather perfunctory tour conducted by Fono. Again, Fono gave no evidence in this case. 57To a great extent, the breaches of good practice relied on by the respondent appear to have stemmed, not only from a lack of training, but also from a failure to establish clear lines of responsibility and to ensure that all guards were made clearly aware of their individual responsibilities. That lack of clarity had led to the growth of a local usage whereby responsibility for calling the police to deal with violent incidents was de facto delegated to the street patrol. 58The applicant's lapses in this case are mitigated by his lack of any intention to hinder an investigation and by the fact that his failures to meet the required standards involved no violence, corruption or other unlawful or improper conduct on his part. 59The applicant has never been convicted of any offence and has no connections with criminal elements. A former employer, Mr Rick Faalogo, operations manager of CPS Group Pty Ltd, in a letter dated 9 November 2012 described the applicant's work with that company in highly positive terms. Mr Brian Ane wrote on 29 October 2012 of the applicant's extensive volunteer work with Hillsong Church Pacific Island Extension since 2007. His activities have included organizing fund-raising, team leading, venue control at the church men's conference, playing drums, youth work and participation in the church band. The applicant has a stable domestic background and has been married for seven years. In his 13 years as a licensed security guard he has never been the subject of a complaint. The parties were unaware of any evidence to indicate whether that record was unusual or not, but it seems to me that for someone working in the security industry, and no doubt encountering, and having to deal with, aggressive and intoxicated persons, it is quite impressive. 60The applicant has been without his licence now for almost a year and has had time to reflect on the public's expectations of those working in the security industry. He now has a clearer understanding of the duties involved and is willing to undertake further training. Crime scene preservation is clearly one of the areas in which further training would be appropriate. 61Subject to that, I am not satisfied that it would be contrary to the public interest for the applicant to hold a security licence. 62The decision under review is therefore set aside. ********** 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. Decision last updated: 22 August 2013