Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Murrant v Commissioner of Police, NSW Police Force [2017] NSWCATOD 115 Hearing dates: 13 December 2016 and 24 February 2017 Date of orders: 26 July 2017 Decision date: 26 July 2017 Jurisdiction: Occupational Division Before: S Leal, Senior member Decision: (1) The decision of the Commissioner for Police on 26 July 2016 to refuse to grant the applicant a Commercial Agent and Private Inquiry Agent Operator licence is set aside. (2) In its place, the decision is made that the licence is granted. Catchwords: Commercial Agents and Private Inquiry Agents Act – application for operator licence - Police Integrity Commission - whether criminal conviction spent – whether disqualified person – fit and proper – not contrary to the public interest. Legislation Cited: Administrative Decisions Review Act 1997 Commercial Agents and Private Inquiry Agents Act 2004 Commercial Agents and Private Inquiry Agents Regulation 2006 Criminal Records Act 1991 Police Integrity Commission Act 1996 Security Industry Act 1997 Cases Cited: A Solicitor v Council of the Law Society of NSW [2004] HCA 1Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47 Bydon v General Manager, Motor Vehicle Repair Industry Authority [2003] NSWADT 248 Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 Furlong v Commissioner of Police, New South Wales Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Ivanovski v Roads and Maritime Services [2017] NSWCATOD 78 Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368 Re Lenehan [1948] HCA 45; Sobey v Commercial and Private Agents Board 20 SASR 70 Sudath v Health Care Complaints Commission [2012] NSWCA 171 (13 June 2012) Z v Director General, Department of Transport [2000] NSWADT 87 Category: Principal judgment Parties: Peter Jon Murrant (Applicant) Commissioner for Police, NSW Police Force (Respondent) Representation: Solicitor In Person (Applicant) C Campbell (Respondent) File Number(s): 2016/00378769 REASONS FOR DECISION INTRODUCTION 1. This is an application for review of the decision by a delegate of the Commissioner of Police, NSW Police Force ('the Commissioner') to refuse Mr Murrant's application for the grant of a operator licence under the Commercial Agents and Private Inquiry Agents Act 2004 ('CAPI operator licence'). In refusing the application, the Commissioner found that Mr Murrant was not a fit and proper person and that it would not be in the public interest for him to be issued with such a licence. This decision was affirmed on internal review. 2. Mr Murrant has now sought a review of this decision. He represented himself before this Tribunal over the course of a two-day hearing. 3. Mr Murrant is a former police officer who served in the NSW Police Force from 1985 to 1998. He retired in 1998 due to injury and after being served a Loss of Commissioner's Confidence Notice. 4. It is accepted that from 1998, Mr Murrant was a director of a security firm, Blue Falcon Security. It is also common ground that in 2000, Mr Murrant was convicted of giving false evidence to the Police Integrity Commission under s107 of the Police Integrity Commission Act 1996, for which he was sentenced to 12 months periodic detention, with a non-parole period of 9 months. It is also common ground that this is Mr Murrant's only criminal conviction and that it is now a spent conviction. 5. What is in dispute is whether Mr Murrant was involved in the use and supply of prohibited drugs between 1994 and 1998. 6. Under section 20 of the Commercial Agents and Private Inquiry Agents Act 2004 ('the CAPI Act'), this Tribunal is empowered to determine Mr Murrant's application for review, which was lodged within time. In determining this review, I am to decide the correct and preferable decision of the basis of the material before me (section 63 of the Administrative Decisions Review Act 1997). 7. For the reasons set out below, I am satisfied that the decision under review should be set aside and that Mr Murrant should be granted a CAPI operator licence. ISSUES 1. The issues before the Tribunal are as follows: * whether Mr Murrant is a disqualified individual under the CAPI Act; * whether Mr Murrant is a fit and proper person to hold a CAPI operator licence; * whether it would be in the public interest for Mr Murrant to be granted a CAPI operator licence. THE APPLICABLE LAW 1. The CAPI Act established a scheme for licensing persons to carry on Commercial Agents and Private Inquiry Agents activities. The objects of the Act are set out in section 3 which provides as follows: 3 Objects The objects of this Act are: (a) to protect the public in relation to commercial agent and private inquiry agent activities (that is, process serving, debt collection, repossession of goods, surveillance of persons and investigation of persons), and (b) to provide for the licensing of persons carrying out, and persons carrying on business in relation to, commercial agent and private inquiry agent activities, and (c) to establish standards to be observed by licensees in relation to commercial agent and private inquiry agent activities, and (d) to ensure that licensees are accountable for their acts and omissions in relation to commercial agent and private inquiry agent activities. 1. Section 13(1) of the CAPI Act provides that an application for an operator licence must be refused if the applicant is a disqualified individual and may be refused if the applicant has been convicted or found guilty of a minor offence, or if the Commissioner (or on review, this Tribunal) is of the opinion that the grant of the licence would be contrary to the public interest. Disqualified individual 1. Relevant to this matter, section 4 of the CAPI Act defines a disqualified individual to include: (c) an individual who, in the opinion of the Commissioner, is not a fit and proper person (whether because of subsection (2A) or otherwise) to hold a licence; and (d) an individual who has been convicted or found guilty of a major offence. 1. A major offence includes an offence involving fraud or dishonesty, being an offence punishable by imprisonment. 2. Under section 7 of the Criminal Records Act 1991, as in force at the time of Mr Murrant's offence of giving false evidence to the Police Integrity Commission, all offences were capable of being spent, except for 'convictions for which a prison sentence of more than 6 months has been imposed.' Under this section, 'prison sentence' does not include a sentence served by periodic detention. 3. For this reason, it is accepted that Mr Murrant's conviction was capable of being spent and in accordance with section 8 of the Criminal Records Act, his conviction became spent on completion of the relevant crime-free period, being 10 years after the date of conviction. It is therefore also accepted that Mr Murrant is not a 'disqualified individual' within section 13(d) of the CAPI Act. 4. The Tribunal may, however, still determine that Mr Murrant is a disqualified person on the basis that he is not a fit and proper person to hold a CAPI operator licence. The Tribunal may also refuse Mr Murrant a CAPI operator licence if of the opinion that the grant of the licence would be contrary to the public interest. Fit and proper 1. The expression "fit and proper person" is not defined in the CAPI Act nor in the Commercial Agents and Private Inquiry Agents Regulation 2006 (the CAPI Regulation). 2. However there are a number of authorities concerning the meaning of this term. In Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 36 Toohey and Gaudron JJ stated: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. A person's fitness is to be gauged in light of the nature and purpose of the activities that the person will undertake: Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127. Knowledge, ability, moral integrity and the rectitude of character necessary to fulfil the role for which a licence is sought are proper considerations: Sobey v Commercial and Private Agents Board 20 SASR 70. These principles were summarised by the Appeal Panel in Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 at [58] as follows: 1. The very purpose of the words "fit and proper" is to give the widest scope for judgment and for rejection on that ground. 2. "Fit" with respect to an office is said to involve honesty, knowledge and ability. 3. The expression "fit and proper" person, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. 4. Depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed it will not occur, or whether the general community will have confidence that it will not occur. 5. In certain contexts, character (because it provides indication of likely future conduct) may be sufficient to ground a finding that person is not fit and proper to undertake the activities in question. 6. The expression meant that an applicant needed to show not only that he has the requisite knowledge of the duties and responsibilities of the holder of the particular licence but also that he is possessed of sufficient moral integrity and rectitude to be accredited to the public as a person to be entrusted with the work the subject of the licence." 1. The determination of the question of 'fit and proper' is made based on whether the applicant is currently a fit and proper person: Re Lenehan [1948] HCA 45; A Solicitor v Council of the Law Society of NSW [2004] HCA 1 and the courts have held that one criminal offence does not necessarily deprive a person of fitness: Walters J in Sobey, cited in Bydon v General Manager, Motor Vehicle Repair Industry Authority [2003] NSWADT 248 at [7.4]. It cannot be that every proof which he may give of human frailty so disqualifies him': per Kitto J in Ziems v Prothonotary of the Supreme Court of NSW [I957] HCA 46, at p.298. 1. According to the second reading speech for the Criminal Records Act 1991 (NSW) (Hansard, 10th April 1991): ''After an appropriate period, an old criminal record loses validity as a reliable indicator that a person may re-offend. Its maintenance should not therefore prejudice the person's rehabilitation. The discrimination which often follows revelation of an old criminal record impedes the successful rehabilitation of offenders at a time when they have proved they present no risk to society. The unfairness of this form of discrimination has been widely recognized. ... 1. The proposed rehabilitation period of 10 years for adults is based on the findings of recidivism studies carried out in the United Kingdom by the Home Office Research Unit, I972, and in New South Wales by the Bureau of Crime Statistics and Research, 1977. These studies show that the risk of someone re-offending after 10 years of crime free behaviour is negligible. 2. The issue of whether a person is fit and proper in the light of past criminal conduct is a matter of judgement. In considering that issue the Tribunal is required to take into account the nature and seriousness of the original misconduct, any events relevant to an assessment of the applicant's fitness which have occurred since then, the candour with which the applicant has approached the issue of past misconduct, the applicant's explanation of the misconduct, the impact of the effluxion of time, and the applicant's present circumstances and reputation: see Grenfell v Director General of the Department of Finance and Services [2013] NSWADT 57. 3. In cases where 'good character' is part of the legal test for the practice of a particular occupation or profession, the question of reformation of character is significant. Similarly if a person has been 'unfit' in the past, the question arises is to whether they are now a fit and proper person to perform a particular role. See Ivanovski v Roads and Maritime Services [2017] NSWCATOD 78. 4. In Z v Director General, Department of Transport [2000] NSWADT 87, Deputy President Hennessy stated that a person can "live down" their bad reputation and reform their bad character. In the public interest 1. The concept of the 'public interest' is designed to give the broader interests of the community priority over private interests. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657 at 681 the Wilcox CJ and Keely J 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. 1. In Director of Public Prosecutions v Smith [1991] VicRp 6; (1991) 1 VR 63 the Court held: The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. 1. The Tribunal has also found that an applicant's personal interest in retaining his licence cannot outweigh the public interest in having full confidence in the professionalism of people involved in the security industry: Blissett v Commissioner of Police, New South Wales Police; Webb Protection Australia Ply Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114 at paragraph [32]. 2. In Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16 at paragraph [33] the Appeal Panel held: The 'public interest' allows, we consider, for issues going beyond the character of the applicant to be taken into account. These may include concerns in relation to public protection, public safety and public confidence in the administration of the licensing system. EVIDENCE 1. The evidence before me includes part of the transcript of proceedings before the Police Integrity Commission in relation to an operation known as 'Operation Saigon.' 2. Also before me are excerpts from the Operation Saigon Police Integrity Commission Report to Parliament dated June 2001. 3. In addition to giving oral evidence before the Tribunal, Mr Murrant tendered a series of references in support of his application for a CAPI operator licence and documents relevant to his evidence in relation to the former police officer, Mr Christian Bruce. Operation Saigon: Evidence 1. Public hearings in relation to Operation Saigon were held over three phases between February 1999 and March 2000. Phase I of the Operation Saigon hearings focused on allegations that members of the Police Service were using and/or supplying prohibited drugs, were associated with drug dealers, and were involved in secondary employment in the security industry. Mr Murrant gave evidence at these proceedings as did other former police officers including Mr Christian Bruce, Mr Rodney Podesta, Mr David Price and Mr Anthony Binns. Part of the evidence involved telephone intercepts of conversations between Mr Bruce and Mr Murrant. Mr Christian Bruce 1. Mr Bruce told the Police Integrity Commission that he had tried to warn Mr Murrant about police searches he believed would be conducted in December 1998 at Mr Murrant's home and at the business premises of Blue Falcon Security. 2. Mr Bruce told the Police Integrity Commission that; I considered Mr Murrant one of my best friends and I felt it was my duty as a friend to ring him up and let him know that something was going to happy at those premises in regards to cocaine and ecstasy. …I called Mr Murrant back and again we had a conversation which has been played here today. 1. The transcript of Mr Bruce's evidence continues as follows: Q: Is that the conversation where you were asked 'Are you talking in code?' and you said, 'No?' A: I believe it was, yes Q: Were you attempting to talk in code at that time? A: Yes, I was attempting to let him know in some way that wouldn't be obvious outside of Mr Murrant and myself as to what I was talking about.…We were going to meet up for a drink later that night with some other people and I thought, just in case there was some prohibited drugs on his premises or at his work place, that I should let him know prior to such a search warrant being executed, looking for drugs. Q: Do you remember saying this: I have to – have to help someone get rid of all their low maintenance and high maintenance, um, bits and pieces from their work and also their home. Q: What did you mean by 'low maintenance' and 'high maintenance' bits and pieces? A: It was code between Mr Murrant and myself. 'Low maintenance' was referred to as cocaine and 'high maintenance' was referred to as cocaine. Q: Had you used that code previously between you? A: Once or twice, yes 1. In his evidence to the Police Integrity Commission, Mr Bruce gave detailed evidence of his prohibited drug taking, which he said took place on occasion with Mr Murrant and Mr Crotty. 2. Mr Bruce also gave evidence of his social relationship with Mr Murrant and told the Police Integrity Commission that he had 'helped him to buy a puppy dog.' Q: A real dog, I take it, not a reference to drugs? A: That's correct Q: When did that happen? A: I can't recall the date, sir, but it was from the same breeder that – who I bought my German shepherd through, and I took Mr Murrant out and showed him the- where this breeder was and introduced them. 1. Mr Bruce told the Police Integrity Commission that he had travelled to the USA with Mr Murrant for a wedding and that whilst in the USA, Mr Murrant had handed him a package of cocaine. Mr Rodney Podesta 1. In evidence to the Police Integrity Commission, the former police officer, Mr Podesta, admitted using cocaine and ecstasy. He agreed that he had taken cocaine and ecstasy with the police officer, Mr Easton James, but denied taking cocaine and ecstasy with any other police officers. He denied ever using cocaine with Mr Murrant and could not recall discussing cocaine with him. Mr David Price 1. In evidence before the Police Integrity Commission in 1999, the former police officer described Mr Murrant as a close friend of 20 years standing, with whom he socialised and with whom he had travelled overseas two years earlier. 2. Mr Price told the Commissioner that he had never used prohibited drugs himself, had never seen any member of the NSW Police Service using prohibited drugs and, to his knowledge, had never been present when members of the Police Service appeared to be affected by drugs. 3. He denied having been supplied with cocaine by Mr Murrant when they were in the USA in 1998? and denied having snorted cocaine there with Mr Bruce. Mr Anthony Binns 1. In his evidence on 16 February 1999, Mr Binns, who was a detective senior constable at the time, agreed that he was the holder of a security licence and had obtained the security licence for the following reason: I had considered leaving the Police Service and with my experience in the Police Service I believed that security work or work in the security industry in a variety of capacities would require the holding of a security licence. I was also aware that legislation was changing in relation to obtaining security licences and so I thought for those two reasons I would acquire one. 1. Mr Binns told the Commission that he had been friends with Mr Murrant since 1989 and agreed that he had been out socialising and to nightclubs with Mr Murrant, Mr Binns and Mr Bruce. The transcript of his evidence provides, in part as follows: Q: Have you seen anyone use prohibited drugs when you've been out with those persons? A: Not directly, no Q: Have you become aware of any use of prohibited drugs whilst you've been out with those persons? A: No Q: Have you use prohibited drugs yourself? A: No Q: Do you use prohibited drugs yourself? A: No Q: Have you used cocaine? A: No Q: Ecstasy? A: No Q: Are you aware of any use of prohibited drugs by any police officer? A: No Q: Are you aware of the supply of prohibited drugs by any former police officer? A: No Q: Are you aware of the supply of prohibited drugs by any former police officer? A: No Q: Are you aware of the supply of prohibited drugs by a person to a police officer or a former police officer? A: No Mr Murrant 1. In evidence to the Police Integrity Commission on 16 February 1999, Mr Murrant stated that, at the time, he had known Mr Bruce for approximately six years and that he would probably see Mr Bruce once a week or once a fortnight. Mr Murrant told the Commission that during his time as a police officer and following his resignation, he had never seen any other police officer use prohibited drugs. He denied ever having supplied prohibited drugs to any person or ever having kept prohibited drugs in his possession or at his home or in his office. He denied ever having used cocaine or ecstasy. 2. He stated that he had viewed behaviour by nightclub patrons that was consistent with drug taking – groups of people going into the same toilet cubicle – and was aware that a friend of his, Lenny Lambert had 'a problem with substances' but had never personally seen him use drugs. He denied ever having received drugs from Mr Lambert. 3. Having initially denied undertaking security duties, he later agreed that he had been 'helping out at the door' during an event in November 1998 where Blue Falcon Security had been employed to provide security and that he had also performed security duties on 31 December 1998. Having listened to a tape recording played to him at the Commission, he also agreed that he had asked another police officer to perform security work on two occasions. 4. His conviction for providing false evidence to the Police Integrity Commission related to the circumstances of the employment of Mr Binns, then a serving police officer, by Blue Falcon Security. Operation Saigon: Report to Parliament (June 2001) 1. In June 2001, a report regarding Operation Saigon was provided to the NSW Parliament. 2. In his report, the Commissioner of the Police Integrity Commission, Urquhart J, made the following findings in relation to Mr Murrant's role in the security industry: Murrant's evidence about his role in the security industry appeared to be evasive. He claimed that he only formally learned at the time of the Commission hearings in February 1999 that he had been registered as a director of Blue Falcon Security Pty Ltd since January 1998. He maintained that he had not engaged in security duties until presented with evidence that depicted him performing such duties. He then agreed that he had performed security duties and had helped out on the door of the dance party on 13 November 1998. It was obvious from Murrant's evidence that he was aware his lack of a security licence under the Security Industry Act 1997 meant he was unlicensed to perform the security duties in question. Further, a recorded telephone conversation between Murrant and one of his co-directors…on 31 December 1998 indicated that Murrant had reason to hide from the licensing police while working at the Greenwood Hotel that might. Murrant's evidence confirmed that he did perform duties of a security nature that evening. The Commission is of the opinion that Murrant did engage in security duties whilst unlicensed to do so and that he was untruthful in his evidence to the Commission in relation thereto. 1. The report also considers allegations that Mr Bruce had warned Mr Murrant about a proposed police search of Mr Murrant's premises: On 11 December 1998 Senior Constable Christian Bruce…received a briefing which led him to believe that a search warrant was to be executed on the home and business premises of [Mr Murrant]. Intercepts on the home and mobile telephone services of Murrant recorded calls made by Bruce warning Murrant to remove certain items from his property….Bruce said he attempted to talk in code so that he could warn Murrant about what was happening in a way that would not be obvious to anyone else besides Murrant and himself. 1. The Commissioner made the following assessment of Mr Murrant's use and/or supply of prohibited drugs and association with drug suppliers: The Commission is of the opinion that the evidence of Bruce offers a more satisfactory explanation of the intercepted telephone calls between Bruce and Murrant. The Commission finds that the references to 'dogs' in the telephone call between Murrant and Bruce on 26 September 1998 are references to prohibited drugs. The explanation provided by Murrant of the references to 'dogs' in that telephone conversation lacks credibility. The Commission also prefers Bruce's evidence in relation to the calls between Bruce and Murrant on 11 December 1998. The Commission is of the opinion that Bruce was attempting to warn Murrant to remove prohibited drugs from his premises. The Commission accepts Bruce's evidence in relation to the supply by Murrant of drugs and concludes that Murrant was involved in the use and supply of prohibited drugs between late 1994 and late 1998. 1. The report notes that Mr Lambert and Mr Podesta had pleaded guilty to the supply of prohibited drugs and that Mr James was convicted of one count of supply prohibited drug. 2. The report also noted that on 9 May 2000, Mr Murrant had been convicted of one count giving false evidence to the Police Integrity Commission and recommended that consideration be given to the prosecution of Mr Murrant for the offences of supplying prohibited drugs. 3. It is accepted that Mr Murrant has never been charged with any drug-related offences. Mr Murrant's oral evidence to the Tribunal 1. In oral evidence before this Tribunal, Mr Murrant confirmed that he had started working at Business Blue Falcon Security in 1998. He had been an (unpaid) director of the company until he resigned following the direction from the Police Integrity Commission. 2. He receives a police pension following a compressed back injury sustained in 1986 whilst on duty as a police officer, when he was run over by a drunk driver. As a result of the accident he fractured his left wrist and his left foot and now suffers from osteoarthritis. To alleviate his condition, he takes prescription drugs for the pain and for the inflammation. He also follows an exercise regime. 3. In answer to specific questions posed by the Tribunal, Mr Murrant stated he stands by his evidence to the Police Integrity Commission in 1999. He told the Tribunal he does not take recreational drugs. 4. He told the Tribunal that he was seeking a private investigator's licence in order to be able to support his family by working as a private investigator. He believes he would be suited to the job because of his background and experience in investigation and surveillance operations. It would also be flexible work that he could manage in light of his back injury. 5. When asked why he believed he was a fit and proper person to hold a CAPI operator licence, Mr Murrant explained the circumstances behind his conviction for giving false evidence. He told the Tribunal that he accepted the decision of the jury and accepted his mistake. He noted that it had been eighteen years since the date of the offence and that he had 'paid the heaviest of prices' for it and had served a prison sentence for it. 6. He told the Tribunal that for the past sixteen years he has had nothing to do with the security industry and doesn't believe he should be punished further for his offence. 7. He told the Tribunal that the evidence against him the Police Integrity Commission had come from one person, Senior Constable Christian Bruce, who, Mr Murrant told the Tribunal, had been trying to extricate himself from his own position by giving evidence that Mr Murrant had been both a user and supplier of prohibited drugs. 8. Mr Murrant told the Tribunal that in 2002, Mr Bruce had written to Mr Murrant from Bathurst Correctional Centre to tell him that he had made a mistake giving the evidence to the Police Integrity Commission and that he regretted what he had done. On the first hearing date, Mr Murrant told the Tribunal that he no longer had this correspondence because he had since moved interstate. On the second hearing date, however, he advised the Tribunal that he had located part of the letter, which was then tendered in evidence. 9. In part the letter provides as follows: I didn't apologise to you during our phone conversation in mid-'98 as I didn't think that it was possible to apologise for what I did. I regretted my decision the moment that I made it but valued my family's welfare ahead of that of my friends. I had no problem with going to gaol, but wanted to avoid it at all costs for the sake of Mum and Kim. Although it is late, I would like to apologise to you and am duly sorry for the damage I have done to you, your marriage and your family. You asked me once if I thought you were a bad person and I replied 'No.' I don't think that you are and believe I am a better person for knowing you. I am also a better person for realising the mistake that I made in giving evidence at PIC. Whilst I don't pretend I can make amends for my actions you know I am a strong believer in karma. If there is any way I can help you or your family in the future the offer will always be there from me. Whilst I realise I owe you considerably, one day you may need a kidney or something equally essential that I can provide. 1. Mr Murrant told the Tribunal that he had not read the Operation Saigon Report until it had been served on him in these proceedings. He told the Tribunal that he does not agree with the opinions expressed in the Report in relation to his alleged drug use. He told the Tribunal that the drug allegations were wrong. He confirmed that he had never been charged with drug use or drug supply. 2. In evidence before the Tribunal, Mr Murrant provided a motive for Mr Bruce's evidence against him, namely that Mr Murrant had been seeking to recover a debt owed to him by Mr Bruce for the purchase of a 4WD vehicle. In support of his evidence, Mr Murrant produced a copy of a letter written to him on 13 September 2000 by the solicitors Oates & Smith confirming that they had 'filed a Statement of Liquidated Claim in the Local Court in relation to the debt owed to you by Mr Christian Bruce.' 3. In relation to his involvement with Blue Falcon Security, Mr Murrant told the Tribunal that 'when doing office duties in 1998, I made all attempts not to engage in security issues.' Instead, he would do office work including errands such as delivering uniforms. On one night, he had assisted with a bottleneck at an under 18s dance party, to avoid the under 18-year-old guests blocking the street. He checked the under 18-year-old guests were not carrying alcohol in their handbags. 4. The second occasion was on New Year's Eve at the Greenwood Hotel in 1998. Mr Murrant told the Tribunal that: I don't remember but maybe I did deal with intoxicated people. The [Security Industry] Act was new and I was still getting a hold on it. It was common for police to be working in the security industry, including senior police to work in the security industry. 1. In cross-examination before the Tribunal, Mr Murrant accepted that a conversation between him and Mr Bruce had been intercepted on 26 September 1998. 2. He agreed that reference was made to 'dogs' in the conversation. He also agreed that Mr Bruce had told him he was present at a hotel called Scruffy Murphy's Hotel. He agreed that he had explained to the Police Integrity Commission that the conversation had been about dogs, and not about drugs, as had been alleged, and that his question to Mr Bruce, 'Did you bring that barking dog?' was not code for speaking about drugs. Rather, Mr Murrant told the Tribunal that he was speaking about 'the dog [Mr Bruce] took in his 4WD.' 3. When asked whether he agreed that according to the transcript from the Police Integrity Commission, 'the effect of Mr Bruce's evidence was that it was a coded conversation where you were talking about drugs not dogs,' Mr Murrant told the Tribunal 'I wasn't talking about drugs, I was talking about dogs.' 4. When asked whether this was a 'doubtful explanation', Mr Murrant told the Tribunal 'perhaps Mr Bruce was a drug user and clearly unhinged.' Mr Murrant told the Tribunal that he believed Mr Bruce was trying to extricate himself, 'because there was some promise or something held out to him to reduce his sentence – that's what I was trying to intimate.' 5. He agreed with the proposition that he considered Mr Bruce's evidence to lack credibility. He also agreed that perhaps Mr Bruce had embellished his evidence to get an advantage for himself. 6. He agreed that Mr Bruce had not been charged at the time he gave evidence to the Police Integrity Commission but told the Tribunal that 'I can tell you he walked through the rollover door.' 7. When it was put to Mr Murrant that his 'explanation that Mr Bruce lacked credibility had no rational basis', Mr Murrant stated that he did not agree and said that 'I made that on the basis that other allegations against other police officers had not been put forward.' 8. When it was put to him that Mr Bruce had telephoned him to warn him about an impending search of Mr Murrant's property and had given the warning in code, Mr Murrant accepted that Mr Bruce may have been speaking in code but described it as Mr Bruce's 'version of code.' He told both this Tribunal and the Police Integrity Commission that he had not understood Mr Bruce to be warning him about an impending search. He told the Tribunal that his subsequent question to Mr Bruce 'Are you talking in code?' as recorded by the telephone intercept was proof that he'd had no idea what Mr Bruce was talking about. 9. It is common ground that on the two occasions search warrants were issued against Mr Murrant, namely on 2 February 1999 and 15 February 1999, no prohibited drugs were found. Mr Murrant told the Tribunal that no drugs were found because there were none to be found. He told the Tribunal that he believed the search warrant had been executed to coincide with his then wife's birthday party, as a means to upset her. According to Mr Murrant, had the police truly believed there was something to find, they would have executed the search warrant earlier. 10. Mr Murrant told the Tribunal that his conversations had been intercepted over an eighteen month period and the 'only conversation picked up that didn't help me' was the discussion about pet food in December 1998. Mr Murrant told the Tribunal that during that eighteen months he had been making calls to a local pet shop owner to deliver pet food to another police officer, Paul Maynard. As a result, Internal Affairs had searched Mr Maynard's house. 11. Mr Murrant told the Tribunal that he had owned German Shepherd dogs for twenty years, both as family pets and for security. According to Mr Murrant, Mr Bruce had purchased his first German Shepherd dog and was helping him to train the dog. When he used the words 'high maintenance' he was referring to fresh meat to feed the dog and when he used the words 'low maintenance' he was referring to dog biscuits. 12. Mr Murrant told the Tribunal that despite Mr Bruce having also make allegations in relation to prohibited drugs against Mr Binns and Mr Crotty and Mr Price, Mr Binns and Mr Crotty remain serving police officers while Mr Price is now a barrister. Character references 1. Mr Murrant provided a series of character references in support of his application, excerpts from some of which are reproduced below. Each of his referees confirmed that they were aware of Mr Murrant's criminal conviction. 2. The Hon Peter Garrett AM, former Minister for the Environment & Arts and former Minister for School Education & Youth, and his wife, Ms Doris Ricono-Garrett provided a reference for Mr Murrant in the following terms: We have known Peter Murrant for over thirty years and are aware of his conviction eighteen years ago in relation to the provision of false evidence…We consider him a person of good character who loved his job in the police force and has well and truly paid the price for the conviction which devastated him for many years. We have experienced Peter as a helpful, loyal and reliable man. 1. Mr Todd Maguire, Senior Firefighter with Fire and Rescue NSW, described Mr Murrant as 'honest, trustworthy, dedicated, co-operative and highly dependable.' 2. Captain Michael Coventry, pilot, describes Mr Murrant as 'an honest and straight up man.' 3. Mr Jason Booth, Director, Richardson & Wrench, wrote in relation to Mr Murrant: I am acutely aware of his difficulties and conviction arising from the Police Integrity Commission Hearing of 1999. Nevertheless, I am of the firm opinion that this was an extraordinary event and I consider him to be a person of good character displaying empathy, fortitude, loyalty, trustworthiness and responsibility in all his actions and thoughts. 1. In his reference, Captain Eric Wennersten, pilot, stated that: I first met [Peter] in December 2002…Peter told me very early in the friendship of his past conviction…and the ensuing 9 month Periodic Detention. Whilst it struck me at the time as extremely uncharacteristic of Peter, I admired his openness and honesty in discussing this issue with me. This spoke volumes to me and showed his strength of character. It had absolutely no impact whatsoever on our friendship, if anything it only strengthened due to his honesty and integrity. I know Peter has suffered enormously due to this conviction and is genuinely remorseful for what transpired. 1. Mr Peter Robinson, who describes himself as a former supervisor of Mr Murrant, describes him as 'honest, loyal, reliable, hardworking, caring, responsible and down to earth. 2. Mr Paul Almond, solicitor and friend of many years standing to Mr Murrant, wrote that: I was surprised to learn of Peter's conviction as I have regarded him as a person of strong character and ability, who is fair minded and thoughtful. I know that he helped to support his mother and family from a relatively young age from the time his father passed away. CONSIDERATION Fit and proper 1. The first issue to be considered is whether Mr Murrant is a fit and proper person to hold a CAPI operator licence. If not, he is a disqualified individual and must, according to section 13 of the CAPI Act, be refused a CAPI operator licence. 2. As is set out above, the assessment of fitness and propriety is a question of fact to be decided objectively in relation to the activities in which the applicant, if licensed, would be engaged It involves three qualities: honesty, knowledge and ability (Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127). 3. I accept that, as a former prosecutor, investigator and supervisor of surveillance operations in the NSW Police Force, Mr Murrant has the ability and knowledge necessary to undertake the work of a commercial agent and private investigator. 4. I must, however, also be satisfied that Mr Murrant 'is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public… as a person to be entrusted with the sort of work which the licence entails.' (see Sobey v Commercial and Private Agents Board (1979) 22 SASR 70) 5. I accept that as Mr Murrant's conviction for giving false evidence to the Police Integrity Commission is a spent conviction, I should not have regard to it in forming my opinion about Mr Murrant's fitness and propriety. (see Kocic v Commissioner of Police, NSW Police Force [2014] NSWCA 368) 6. I can, however, have regard to the other evidence given in the Police Integrity Commission and to the findings of the Commission. 7. I will first consider the evidence in relation to Mr Murrant's engagement in the security industry whilst a serving police officer. 8. On the evidence before me, I am satisfied that Mr Murrant was aware that he needed police approval to engage in unauthorised secondary employment in the security industry and that he knowingly engaged in security duties whilst unlicensed to do so in breach of the Security Industry Act 1997. In making this finding, I accept that, on the evidence before me, that Mr Murrant engaged in security duties without a licence on two occasions in 1998. I also accept that Mr Murrant had not obtained police approval to work in the security industry, namely for Blue Falcon Security. 9. Almost twenty years has now passed and there is no evidence that Mr Murrant has come to the attention of the authorities since his conviction in 2001. Having had the opportunity to hear Mr Murrant giving sworn evidence before the Tribunal, I am satisfied that he regrets his earlier actions and has leant from them. 10. I note that in the second reading speech for the Criminal Records Act 1991 (as reproduced, in part, above) reference is made to UK and NSW studies of recidivism, which found that the risk of someone re-offending after 10 years of crime free behaviour is negligible. I give weight to these studies in finding that, given Mr Murrant's length period of crime free behaviour, there is little risk of his offending in the future. 11. I will now consider the findings of the Police Integrity Commission that Mr Murrant was involved in the use and supply of prohibited drugs. While it is not open to me to make a determination in substitution for the findings of the Police Integrity Commission, I should satisfy myself as to the strength for licensing purposes that should be accorded to these findings. (see Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47; Sudath v Health Care Complaints Commission [2012] NSWCA 171 (13 June 2012)) 12. To do this, I will consider the findings in the context of all the information now before me. 13. Whilst the Police Integrity Commission recommended that Mr Murrant be prosecuted in the relation to the supply of prohibited drugs, it is not disputed that Mr Murrant has never been charged with any drug-related offences. Furthermore, in the sixteen years that have elapsed since the Commission's recommendation, there is no evidence before me to indicate that Mr Murrant has since come to the attention of the authorities either in relation to prohibited drugs or for any other reason. Having regard to the findings of recidivism studies referred to above, I am satisfied that Mr Murrant's risk of offending in the future is negligible. 14. On the evidence before me, I am satisfied that Mr Murrant has consistently denied taking prohibited drugs or supplying prohibited drugs. In the transcripts provided to me in relation to Operation Saigon, Mr Bruce is the only witness to implicate Mr Murrant in drug related offences. All of the other witnesses whose evidence is before me deny ever having seen Mr Murrant taking prohibited drugs. 15. I give some weight to the evidence by Mr Murrant that Mr Bruce may have had a motive to implicate him in light of money he owed to Mr Murrant and that Mr Murrant wanted to have repaid. As evidence of this debt and Mr Murrant's desire to have it repaid, I give some weight to the letter from the solicitors Oates and Smith dated 13 September 2000 confirming that a Statement of Liquidated Claim had been filed in relation to debt. 16. I give less weight to the letter tendered by Mr Murrant, which is simply signed 'Chris.' Even if I could be satisfied that the letter was written by Mr Bruce – which, on the limited evidence before me, I cannot be – the letter itself is of little assistance to Mr Murrant in that while it expresses regret in giving evidence against Mr Murrant, it does not state that the evidence provided was false. 17. I give weight to the fact that, on the evidence before me, no prohibited drugs were ever discovered either at Mr Murrant's home or in the premises of Blue Falcon Security. 18. I do, however, share some of the concerns of Mr Campbell, solicitor for the Commissioner of Police, in relation to the discussion of a code allegedly spoken by Mr Murrant and Mr Bruce. The taped telephone conversation of Mr Bruce telling Mr Murrant that he had to 'help someone get rid of all their low maintenance and high maintenance…from their work and also their home' makes little sense if, as Mr Murrant asserts, 'low maintenance' means dog biscuits and 'high maintenance' means fresh meat for pet food. I agree with Mr Campbell that Mr Bruce's words make more sense if he was instead using a type of code whereby 'low maintenance' referred to ecstasy and 'high maintenance' referred to cocaine. 19. On the evidence before me, however, I cannot be satisfied that this was a code understood by Mr Murrant. Indeed, Mr Murrant's response to Mr Bruce 'are you talking in code? – as recorded in the telephone intercept - makes it clear that he is baffled by Mr Bruce's conversation and that contrary to Mr Bruce's assertions to the Police Integrity Commission, it would appear that this was not a code such that its meaning would be 'obvious' to Mr Murrant. 20. Also of concern to me is the comment made to Mr Murrant by Mr Bruce that a man called Richard had 'put a pink rinse through his dog, it was a sort of pinky colour' and that, according to Mr Bruce, that had been code for describing a pink ecstasy tablet. Weighed against this is Mr Murrant's evidence that he did not understand what Mr Bruce had been talking about. 21. I give weight to Mr Murrant's evidence before the Tribunal that he has owned German Shepherd dogs for twenty years and that he had been helping Mr Bruce to train his own German shepherd. That Mr Bruce and Mr Murrant has a common interest in German shepherds is corroborated by Mr Bruce's evidence to the Police Integrity Commission that he had helped Mr Murrant buy a German shepherd puppy. I give some weight to this when considering Mr Murrant's evidence to the Tribunal that, during the telephone intercepts, he and Mr Bruce had been talking about dogs not drugs. 22. Noting that the determination of the question of 'fit and proper' is made based on whether the applicant is currently a fit and proper person, I give substantial weight both to Mr Murrant's blemish-free record for sixteen years and to the references attesting to Mr Murrant's good character and honesty. Many of these references were provided by people in public roles and leadership positions who were unequivocal in their support for Mr Murrant and their belief in the strength of his moral character. None of the referees were required for cross-examination by the respondent. 23. While I give some weight to the findings of the Police Integrity Commission, on the evidence before me and for the following reasons, I cannot be satisfied that Mr Murrant used or supplied prohibited drugs between 1994 and 1999: * despite the recommendation by the Police Integrity Commission that he be prosecuted for the supply of prohibited drugs, Mr Murrant was never been charged with any drug related offences; * despite two searches being conducted on his premises in 1999 no prohibited drugs were found there; * on the evidence before me, none of the other witnesses before the Police Integrity Commission gave evidence that Mr Murrant either used or supplied prohibited drugs; * despite the odd use of words by Mr Bruce as captured on the telephone intercepts referred to above, on the evidence before me, I cannot be satisfied that Mr Bruce was speaking to Mr Murrant in a code Mr Murrant understood to be about drugs. Given the admission by Mr Bruce that he and Mr Murrant had a common interest in German shepherds, I accept that it is possible that Mr Murrant understood Mr Bruce's conversation to be about dogs rather than drugs; * I accept that the fact that Mr Bruce owed money to Murrant may have been a motive in his evidence to the Police Integrity Commission. 1. Apart from the findings of the Police Integrity Commission, there is no evidence before me that Mr Murrant has ever been implicated in either the use or supply of prohibited drugs. To the contrary, the evidence before me is that Mr Murrant is a capable, responsible and loyal person who has not come to the attention of the authorities for over sixteen years. 2. Having considered all the evidence before me and for the reasons set out above, I am satisfied that Mr Murrant is a fit and proper person to hold a CAPI operator licence. Public Interest 1. Having considered whether Mr Murrant is a fit and proper person to hold a CAPI operator licence, I must now consider whether it would be in the public interest for him to hold such a licence. As set out above, the applicant's individual interest in retaining his licence must be subordinate to the public interest in ensuring public safety. 2. On the evidence before me, I am not satisfied that the grant of a CAPI operator licence to Mr Murrant would be contrary to the public interest. This is because Mr Murrant has not come to the attention of the authorities for over sixteen years, because he has shown remorse for the conduct that resulted in his conviction for giving false evidence, because he has the support of a range of eminent figures who attest to his integrity and because, for the reasons set out above, I cannot be satisfied that he has ever been involved in using or supplying prohibited drugs. On the evidence before me, I do not believe that there will be any risk to the public if a CAPI operator licence is granted to Mr Murrant. 3. In my view, it would not be contrary to the public interest for the applicant to hold the licence that he is seeking. On this basis, I am satisfied that the correct and preferable decision is that he be granted a CAPI operator licence. ORDER 1. The decision of the Commissioner for Police on 26 July 2016 to refuse to grant the applicant a Commercial Agent and Private Inquiry Agent Operator licence is set aside. 2. In its place, the decision is made that the licence is granted. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 26 July 2017