Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Steele v Commissioner of Police, New South Wales Police Force [2017] NSWCATOD 127 Hearing dates: 13 February 2017 Date of orders: 22 August 2017 Decision date: 22 August 2017 Jurisdiction: Occupational Division Before: DAC Robertson, Senior Member Decision: (1) The decision under review is affirmed Catchwords: LICENSING – Security Industry Act – security licence – fit and proper person – public interest Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Security Industry Act 1997 (NSW) Weapons Prohibition Act 1998 (NSW) Weapons Prohibition Regulation 2009 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Flood v Commissioner of Police, NSW Police Force [2011] NSWADT 88 Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 Hughes and Vale Pty Ltd v The State of New South Wales [No 2] (1955) 93 CLR 127 IJ v Commissioner of Police [2003] NSWADT 230 O'Neill v Commissioner of Police, NSW Police Force [2005] NSWADT 130 Police v Toleafoa [1999] NSWADTAP 9 Robinson v Commissioner of Police, NSW Police Service [2005] NSWADT 5 Sobey v Commercial Agents Board (1979) 22 SASR 70 Category: Principal judgment Parties: Michael Steele (Applicant) NSW Police Force (Respondent) Representation: Counsel: C Zoppo(Respondent) Solicitors: In Person (Applicant) Lindsay Taylor Lawyers (Respondent) File Number(s): 2016/00378791 REASONS FOR DECISION 1. This is an application for review pursuant to the Administrative Decisions Review Act 1997 (NSW) of a decision of the respondent Commissioner of Police to revoke a security licence held by the applicant, Mr Steele, under the provisions of the Security Industry Act 1997 (NSW). 2. Mr Steele was first issued with a Class 1 ABCD security licence on 15 June 2005. He most recently renewed that licence on 27 June 2016. By virtue of s11(1) of the Security Industry Act, a Class 1 ABCD licence authorises the holder - A - to patrol, protect or guard any property while unarmed (and whether while static or mobile), B - to act as a bodyguard or to act in a similar capacity, C - to act as a crowd controller or to act in a similar capacity, D - to patrol, protect or guard any property with a dog, 1. The Commissioner revoked the licence by notice dated 3 August 2016. The notice of revocation was served upon Mr Steele on 12 August 2016. Mr Steele sought an internal review of the decision to revoke his security licence. By a notice dated 13 August 2016 a delegate of the Commissioner of Police affirmed the Commissioner's decision to revoke the licence. 2. On 27 September 2016 Mr Steele filed in the Tribunal an application for review of the decision to revoke his security licence. Mr Steele's application for review was heard on 13 February 2017. At the conclusion of the hearing directions were made for the exchange of written submissions. The Commissioner's submissions were received by the Tribunal on 6 April 2017. Mr Steele's submissions were received by the Tribunal on 3 May 2017. 3. The documentary evidence filed by the parties included the documents produced to the Tribunal by the Commissioner pursuant to s58 of the Administrative Decisions Review Act (which became Exhibit A), together with a fact sheet and two photographs relevant to a charge of having custody of offensive implements in a public place which arose subsequent to the revocation of Mr Steele's security licence. At the date of hearing Mr Steele had not been tried on that charge. The fact sheet became Exhibit B, the photographs became Exhibit C. 4. The evidence filed on behalf of Mr Steele included bundles of submissions and documents filed on 4 January 2017 (Exhibit 1) and 10 February 2017 (Exhibit 2), a search warrant and seizure notice dated 27 July 2016 (Exhibit 3) and a statement by Mr Steele dated 25 January 2009 (Exhibit 4). 5. Mr Steele gave oral evidence and was cross-examined by Mr Zoppo, solicitor, who appeared for the Commissioner. 6. The Commissioner led oral evidence from Detective Senior Constable John Turco relating to the execution of the search warrant included in Mr Steele's evidence. Detective Senior Constable Turco was cross-examined by Mr Steele. Applicable law 1. Section 15(1)(a) and (3) of the Security Industry Act provides: 15 Restrictions on granting licence—general suitability criteria (1) The Commissioner must refuse to grant an application for a licence if the Commissioner is not satisfied that the applicant: (a) is a fit and proper person to hold the class of licence sought by the applicant, or … (3) The Commissioner may refuse to grant an application for a licence if the Commissioner considers that the grant of the licence would be contrary to the public interest. 1. Section 26(1A) of the Security Industry Act provides: (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. 1. Thus the Commissioner was required to revoke Mr Steele's licence if not satisfied that Mr Steele was a fit and proper person to hold a Class 1 ABCD licence. The Commissioner was additionally entitled to refuse to grant Mr Steele a licence if he considered that the grant of the licence would be contrary to the public interest. 2. Pursuant to s63 of the Administrative Decisions Review Act, the Tribunal is required, in determining an application for an administrative review, to decide what is the correct and preferable decision having regard to the material before it. 3. The objects and purposes of the Security Industry Act were described by a member of the Administrative Decisions Tribunal in O'Neill v Commissioner of Police, NSW Police Force [2005] NSWADT 130 at [37] as follows: While the Act does not specifically prescribe its objects and purposes, the provisions that are contained therein clearly indicate that these are the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity. Fit and proper person 1. The meaning of the expression "fit and proper person" has been considered in numerous authorities. In Hughes and Vale Pty Ltd v The State of New South Wales [No.2] (1955) 93 CLR 127 at 156 to 157 Dixon CJ, McTiernan and Webb JJ stated: The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it"—Coke. …It is evident that [by a provision which permitted the Commissioner for Road Transport to refuse a licence if satisfied that the applicant was not a fit and proper person to hold the licence] … the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or definite criteria and which in truth involves a very wide discretion. 1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 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. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76 Walters J held: …in my opinion, what is meant by that expression [fit and proper person] is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence…, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails… 1. The meaning of "fit and proper person" has also been canvassed in a number of decisions of the Administrative Decisions Tribunal. In Haining v Commissioner of Police, NSW Police Service [1999] NSWADT 6 the President of the Administrative Decisions Tribunal stated at [41]: Whether a person is "fit and proper" to hold a licence in a regulated industry will be affected by general considerations relating to the character of the person, special considerations that take account of the nature of the industry in issue and the public policy objectives leading the legislature to regulate the industry. 1. In IJ v Commissioner of Police [2003] NSWADT 230 the Tribunal held at [27]: A higher standard is applicable to licensees in the security industry because of the special role it plays in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe. 1. In Robinson v Commissioner of Police, NSW Police Service [2005] NSWADT 5 the Tribunal stated at [30]: The primary issue … is whether the Applicant is able to demonstrate qualities that would allow the Tribunal and the public to have confidence in his honesty, knowledge and capacity in relation to these licences. 1. In Austin v Commissioner of Fair Trading & Commissioner of Police [2016] NSWCATAP 179 an Appeal Panel of this Tribunal held, at [58]; 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. Public Interest 1. In Police v Toleafoa [1999] NSWADTAP 9 at [25] the Appeal Panel of the Administrative Decisions Tribunal stated: The "public interest" is an inherently broad concept giving the appellant the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual. As the possibility of refusing an application on the ground of character is dealt with elsewhere in the same section, it is reasonable to infer that the Parliament intended that the public interest discretion operate in areas to which the character ground was not relevant or, possibly, in circumstances where an objection on character grounds would not be sufficient in its own right to warrant refusal. 1. In Flood v Commissioner of Police, NSW Police Force [2011] NSWADT 88 the Tribunal held at [38]-[39]: 38 'Public interest' embraces standards acknowledged to be 'for the good order of society and for the well being of its members': Director of Public Prosecutions v Smith (1991) 1 VR 63. The purpose of a reference in legislation to 'the 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 [decision-maker's] consideration': Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors (1995) 131 ALR 657 (at page 681). The relevant interest is therefore the interest of the public, as distinct from the interest of an individual or individuals: Director of Public Prosecutions v Smith. 39 The discretion to issue a licence must be exercised keeping in mind the activities that the person will be engaged in if the licence is granted. Accordingly, the objects and purposes of the Act are relevant i.e. the regulation of the security industry to maintain public safety and to ensure that those who are licensed to operate in the industry are appropriately qualified and persons of integrity: O'Neill v Commissioner of Police, NSW Police [2005] NSWADT 130. The security industry has a special role in ensuring that public order is maintained, in safeguarding community assets and private property and in ensuring that the public and public venues are safe: Haining v Commissioner of Police [1999] NSWADT 6. The interests of the whole community must be considered. The Commissioner's submissions 1. The Commissioner submitted that Mr Steele was not a fit and proper person to hold any security licence and moreover that the grant of such a licence to Mr Steele would not be in the public interest. 2. In support of the proposition that Mr Steele was not a fit and proper person and that the grant of a security licence to Mr Steele would not be in the public interest, the Commissioner relied upon thirteen incidents in New South Wales over a number of years recorded in reports held on the NSW Police data base ("COPS reports") as well as two convictions for assault in Western Australia in 1995 and the fact sheet and photographs relating to the charge of possessing offensive implements on which Mr Steele had yet to be tried. 3. Mr Steele provided written submissions and gave oral evidence in relation to each incident. It is convenient to address each incident in turn. I will deal with them in chronological order. I note that there were two incidents recorded in COPS reports included in Exhibit A and the subject of cross examination of Mr Steele which were not referred to by Mr Zoppo in his written submissions. I will not consider those incidents further. I note that neither incident resulted in charges being brought against Mr Steele and Mr Steele denied all the substantive elements of each incident. 1. Convictions for assault in Western Australia in 1995 1. Records produced by the Western Australian Police disclose that Mr Steele (under another name) was convicted in Western Australia in 1995 on two offences of assault and assault occasioning actual bodily harm. 2. The fact sheet in respect of those offences, which was included in the Commissioner's documents, Exhibit A, states that on consecutive nights Mr Steele had assaulted patrons while employed as a doorman at a nightclub. 3. In oral evidence Mr Steele accepted that he had been convicted of the offences but denied that he had been involved in the incidents from which the charges arose other than on the periphery. Mr Steel attributed the blame to another doorman who had been charged along with him. Mr Steele asserted that in respect of one of the charges the complainant had been hit by an unknown third party, not by Mr Steele. Mr Steele asserted that he had only been convicted because the Magistrate had relied upon evidence from a witness who had not been involved. 4. In his written submissions Mr Steele stated "I contested the charge as to the best of my ability at the time but due to severe financial problems, was unable to fight as hard as I wanted and was also later unable to get the convictions overturned". 2. Allegations of threats of physical harm – July 1998 1. The COPS report relevant to this incident records that Mr Steele's former flatmate had alleged that Mr Steele had made threats of physical harm if he did not receive payment of his bond moneys in full after he had been evicted from the flat they had shared. The former flatmate sought to retain the bond moneys by reason of damage caused to the room Mr Steele had occupied. Mr Steele denied making any threats of physical harm to his former flatmate. He accepted there had been disagreements between them over the repayment of the bond moneys. Mr Steele stated that he had not been aware that any report had been lodged with the Police until he received the documents relied upon by the Commissioner in revoking his licence. Mr Steele stated that the bond money had been returned to him. No charges resulted from this incident. 3. Conviction for animal cruelty and assault – November 2000 1. The COPS report concerning this incident records that Mr Steele was reported to have been observed "punching a small dog repetitively to the head and body". When a bystander had sought to record Mr Steele's vehicle registration number, the bystander had been approached by Mr Steele and threatened. The bystander then alleged that when he sought to walk away Mr Steele grabbed him by the neck and shirt. The documents relied upon by the Commissioner record that Mr Steele was convicted of common assault and committing an act of cruelty upon an animal. Mr Steele was fined and placed on a bond. 2. Mr Steele asserted in his evidence that the bystander had embellished and exaggerated his story to make Mr Steele "seem like the bad guy". Mr Steele accepted that he had hit the dog but denied punching it repeatedly. Mr Steele accepted that he had spun the bystander, Mr B, around by his shoulder but denied hitting him. The COPS report recorded that Mr B had suffered a cut to his bottom lip and a rip to his shirt. Mr Steele's evidence was that he did not know how the cut to Mr B's lip got there. 3. Mr Zoppo submitted that Mr Steele's evidence before the Tribunal was inconsistent with his written version outlined in his written evidence. It is not clear that this is the case, but it is apparent that Mr Steele sought to downplay the extent of the physical altercation between himself and Mr B. In his written submissions Mr Steele asserted that Mr B "was never assaulted" yet in his oral evidence Mr Steele did accept that spinning Mr B around by his shoulder was an assault. 4. Alleged assault on customers – November 2004 1. The COPS report in respect of this incident records that after two patrons had been asked to leave a bar due to their level of intoxication, a verbal dispute arose which continued outside the premises. The COPS report records that one patron claimed that he patted Mr Steele on the back to apologise for arguing with him. Mr Steele claimed that the patron had hit him in the back. The two patrons both claimed that Mr Steele had pushed them back against the wall. Mr Steele claimed that this was self-defence. The Police concluded there was insufficient evidence to determine which party assaulted the other first and resolved to take no further action. 2. Mr Steele in his evidence to the Tribunal maintained that the patron had struck him first and his actions had been in self-defence. 5. Alleged intimidatory conduct in road rage incident – 13 March 2008 1. The COPS report in respect of this incident recorded a complaint by a Ms M that, after she had admonished Mr Steele for throwing litter from his vehicle, Mr Steele tailgated her and at one point held up a "crowbar type object". Ms M reported that Mr Steele followed her to her place of work and remained appearing to watch her for about three minutes before driving off. Ms M did not wish to provide a statement or take the matter further. 2. Mr Steele in his written evidence stated that he had no idea there had been any incident or report until he received the Commissioner's documents. At the same time Mr Steele was able to state that he had not been following Ms M to her place of work but rather had driven to a chicken shop, that because of the shop's location it had been necessary to double back at a roundabout, and that it was "simply a coincidence" that he had appeared to be following Ms M. 3. In oral evidence Mr Steele acknowledged that he had heard something from Ms M and had maybe made eye contact. He denied ever having had a crowbar in his car. 4. The fact that Mr Steele was able to recall the incident suggests it was not mere coincidence that Ms M had gained the impression that Mr Steele had been following her. It suggests Mr Steele was conscious of his interaction with Ms M at the time and had responded to her in some active way. 5. Mr Zoppo stated in his submissions "one may ask how can the appellant honestly give evidence on oath about where he was going in 2008 when he can't remember the incident?" In his written submissions Mr Steele acknowledged having eye contact with Mr M but "wasn't sure it was her who offed my dog at the time. I was not following this woman but going to buy dog food". The inconsistency of this submission with Mr Steele's evidence to the Tribunal does not enhance his credibility. 6. Alleged fight at place of work – July 2008 1. The COPS report concerning this incident records that a fight broke out at a hotel at which Mr Steele was working as a security officer between Mr Steele and a patron of the hotel. The report states that the fight started as a result of the patron refusing to erase photos he had taken of Mr Steele with his mobile phone following a minor dispute. The report states that Mr Steele admitted grabbing the throat of the male patron. The report records that the dispute continued outside the hotel "where the patron commenced to punch Mr Steele whilst using his wife as a shield". The COPS report records that the Police omitted to take details of the patron and were unable to identify him from inquiries of other witnesses and therefore took no further action. The COPS report also records that the Police were informed that Mr Steele had been sacked from his position at that hotel "as he had been involved in prior assaults of a similar nature". 2. Mr Steele's evidence was that the patron had commenced the aggressive conduct and that the patron had commenced taking photographs of the manager and Mr Steele and been asked to leave. Mr Steele stated that the patron had "tried to run off up the road", that he had "followed him and tried to restrain him again", that the patron had punched Mr Steele in the face several times, that the patron had tried to run away again and that Mr Steele had chased him up the street and caught up with him. Mr Steele's evidence was that he had told the Police what actually happened and they didn't seem to care "thinking that I was the aggressor". 3. In his written submissions Mr Steele stated that he had "showed great restraint and detained the man until Police arrived". Mr Steele denied that he was sacked from his position at that hotel. He stated that he continued working for the same company but had asked to be removed from that particular hotel. 7. Physical confrontation in which Mr Steele was alleged to have used a baton – April 2009 1. The COPS report concerning this incident records that, after three persons had run from a taxi pursued by the taxi driver, one of those persons was intercepted by Mr Steele, at which time the other two persons stopped running. The report states that Mr Steele began swinging an extendable baton and abusing the three persons. The report records that Mr Steele grabbed one of the persons by the throat, threw him against a shutter screen outside a shop and hit him with the baton. The report records that Mr Steele hit a second of the persons with the baton and eventually convinced the persons to pay the taxi driver who departed. The report records that Mr Steele continued to detain the three persons and refused to provide his identification or permit them to see his security licence which he had attached around his neck. The report states that Mr Steele continued to hit each of the three persons with his baton causing two to become unconscious. The report states that the three persons had subsequently given statements to the Police suggesting they had not been assaulted. 2. Mr Steele's evidence to the Tribunal was that he had not sought to arrest any of the three individuals, that he was carrying a metal extendable baton which he believed he was entitled to use, and that he understood that the extendable baton was a prohibited weapon but believed he was authorised to carry it and use it. Mr Steele stated that he had brought his baton out when he began to be hit by members of a crowd that had gathered. He said that one of the persons he had intercepted sought to stab him with a pen or a pencil. He denied hitting any of them with the baton. Mr Steele gave evidence that he had provided his name to those persons and that he not sought to conceal his security licence, he had simply kept it close because people tried to grab it. 3. Although the COPS report suggests that no further action was taken, Mr Steele gave evidence to the Tribunal that he had written a report on the incident and provided a copy to the investigating police officer and that he had subsequently been charged but that the case had been dismissed as the witnesses did not attend Court. Although Mr Steele denied arresting any of the persons, he acknowledged that he had his arms around one of them and that that person was unable to leave. 4. The Commissioner submitted that the fact that Mr Steele admitted detaining a person without witnessing the commission of an offence was itself evidence of Mr Steele's unfitness. The Commissioner also relied upon the fact that Mr Steele admitted carrying an extendable baton but could not point to any authority which would allow him to possess and use an extendable baton which is a prohibited weapon under the Weapons Prohibition Act 1998 (NSW). 5. In his written submissions Mr Steele made allegations against the prosecuting officer who he suggested had some grudge against Mr Steele personally or security officers generally. These allegations were entirely uncorroborated and not directly relevant to the question of Mr Steele's fitness to hold a security licence. 8. Alleged possession of prohibited weapon, namely hand cuffs – December 2009 1. The COPS report in relation to this incident records that Mr Steele was observed by Police while working as a security guard "holding an unknown female in a headlock dangling handcuffs in her face". At the time Mr Steele was engaged in security activities as a crowd controller/bouncer at a licensed venue. As such he was performing duties pursuant to a Category 1C security licence and was not authorised to use or be in possession of a prohibited article. 2. Mr Steele explained the incident in which the police observed him in possession of the handcuffs as being horseplay involving a stripper working at premises nearby who had asked if she could use the handcuffs in her show. Mr Steele asserted that she had taken the handcuffs from him and he was taking them back from her when the Police came on the scene. 3. In his oral evidence Mr Steele asserted that he had a permit to carry handcuffs as he had done a course and was cleared to carry batons and handcuffs. He admitted that he was aware that handcuffs were possibly prohibited but was not aware what legislation governed that issue. He stated that he had always been told he was allowed to carry a baton and handcuffs. He claimed that was because of the course he had undertaken. 4. The COPS report records that no further action was taken as the Police had not taken custody of the handcuffs at the time and CCTV did not clearly depict Mr Steele being in possession of the handcuffs. Mr Steele was issued a warning. 5. In his written submissions Mr Zoppo noted that Mr Steele had acknowledged being in possession of handcuffs and that it was clear that the evidence established that Mr Steele had in fact committed the offence of possession of the handcuffs without a permit notwithstanding that he had not been charged or convicted of that offence. 6. In his written submissions Mr Steele stated: "I have always believed I was permitted to carry a baton and handcuffs legally. If I wasn't I would never have (a) been allowed to do the course; (b) received a certificate on completion of the course; (c) been able to carry these items while working in the industry – including directly in front of police on many, many occasions". 1. That submission fails to acknowledge the circumstances in which the Weapons Prohibition Regulation 2009 (NSW) permits the possession and use of handcuffs and extendable batons without a permit. That is only by licensed persons employed to carry on security activities and only when patrolling, protecting or guarding cash or other valuables or when patrolling, protecting or guarding an airport or other infrastructure. (See Regulation 4 and clause 3(1)(i) of Schedule 1 to the Weapons Prohibition Regulation 2009 and s4(1)(c)(iv) and (v) of the Security Industry Act). 2. The fact that Mr Steele is not aware of the circumstances in which as a licensed security officer he was permitted to carry handcuffs and/or an extendable baton is a matter of concern. 9. Custody of a knife in a public place – June 2012 1. The relevant COPS report in respect of this incident states that Mr Steele was stopped for a random breath test and registered a low range PCA. The report states that whilst Mr Steele was being arrested the Police noted a large meat cleaver lying on the rear seat of Mr Steele's vehicle and subsequently located a combat knife in a bag which Mr Steele had been wearing around his waist. The report states that, when asked why he was carrying the meat cleaver, Mr Steele responded "I cook sometimes" and followed with abusive language. 2. Mr Steele stated in his written evidence that he bought the meat cleaver earlier that day before going to the pub and he had acquired the meat cleaver because he "had to cut up carcasses for his dogs". He denied telling the Police he had the meat cleaver because he cooked sometimes. He stated that the knife was a folding knife which he used for work. 3. Mr Steele's criminal history report records that the PCA charge was the subject of a section 10 bond (that is a bond pursuant to s10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) and that the charge of having custody of a knife in a public place was dismissed. 4. In oral evidence Mr Steele stated that the knife was a 26 centimetre knife although he disputed that it could be called a combat knife. He explained that the knife was "simply a work tool". The relevant work, as explained by Mr Steele, was that he was working for a friend who had a construction company and he needed a knife while moving materials for "cutting straps and opening boxes". Mr Steele acknowledged that he had not told the Police the reason he was carrying the knife. He explained in his written evidence that "I didn't reply as I was pretty unimpressed by the treatment I had received so far and the smart smug attitude from the police". 5. Mr Steele stated in his written evidence that both the knife and the meat cleaver had been returned to him. In his written submissions Mr Steele stated that the meat cleaver "was used for cooking" notwithstanding that in his written evidence he had denied having told Police when asked why he was carrying a meat cleaver that "I cook sometimes" and had asserted that he had told the police he had the meat cleaver to cut up meat for his dogs. 10. Involvement in physical confrontation with a patron at a hotel – April 2013 1. The COPS report in respect of this incident states that the Police were called to a hotel and brewery where Mr Steele was performing security duties with a dog due to a report of an assault to a male patron who had been requested to leave the hotel. The COPS report states that Mr Steele struck the patron across the left side of his forehead causing a laceration that required four stitches. The COPS report records that the patron declined to provide a statement and no further action was taken. The COPS report records police having spoken to five other witnesses at the scene and records "all witnesses were extremely consistent that the [patron] did not act in a threatening way towards [Mr Steele]". The COPS report records that Mr Steele followed the patron across the road as the patron was walking away and also recorded that the manager immediately dismissed Mr Steele from his duties following the incident. 2. In Mr Steele's written evidence he stated that the patron had been evicted from the hotel by other security guards and that he was directed to keep an eye on him and prevent him from re-entering the premises. Mr Steele asserted that subsequently a number of the patron's friends arrived and the patron made threats to both Mr Steele and his dog and spat on Mr Steele's uniform. Mr Steele stated that he was forced to defend himself against "12 to 15 very hostile people" and that eventually he was assisted by other guards who put the people who had been attacking him on the hotel's courtesy bus and took them away. 3. Mr Steele asserted that he had fallen out with his employer over this incident, as he felt that the employer had not been concerned for his safety, and disputed the suggestion that he had been sacked. Mr Steele alleged that all the witnesses interviewed by Police were friends of the patron and were themselves involved in the attack on Mr Steele. 4. In oral evidence Mr Steele suggested this incident was used by the manager to dismiss him because the employer didn't want to pay Mr Steele what he was owed. 11. Altercation between Mr Steele and his neighbours – November 2015 1. The COPS report of this incident records that Mr Steele was alleged to have verbally harassed his neighbour and that when the neighbour commenced recording him on her mobile phone Mr Steele sought to take the phone from the neighbour. Mr Steele is also alleged to have taken a child's scooter from the neighbour's husband and thrown it over a fence. The COPS report records that no further action was taken as the witnesses did not wish to take any further action. 2. In his written evidence Mr Steele stated that the neighbour had been filming him on the relevant day without any justification. Mr Steele attributed the filming to a prior confrontation two or three days earlier in which Mr Steele asserted he had been physically and verbally abused and threatened. Mr Steele alleged that the neighbours were dealing drugs from their premises. Mr Steele stated that he did not verbally abuse the neighbour who was filming him, he merely walked over to confront her, whereupon she started screaming. Mr Steele stated "while my hands were full with this woman and my back was to him, [her husband] came up behind me with a child's steel scooter and in a coward's move tried to smash me at the back of my skull". Mr Steele stated that he took the scooter from the husband and threw it over the fence. Mr Steele stated that he had subsequently gone to Cabramatta Police station and that it was he that reported the incident, not the neighbours. 3. Somewhat inconsistently, Mr Steele's statement then states that the Police showed up and he showed them what had happened and "I showed them the scrape/wound to my left forearm from the scooter". It is notable that, although the COPS report recorded that Mr Steele stated he had a scratch, the conclusion to the report is "nil visible injuries". Mr Steele asserted that he had a "massive red scar" on his left forearm which he had showed to the Police. Mr Steele asserted that the Police "as usual didn't care". 4. In oral evidence to the Tribunal Mr Steele gave a different account of the incident which suggested that he had been putting his dogs in the back of his ute and the male neighbour had come up behind him with the scooter and tried a "surprise attack" with the scooter. 5. The Commissioner submitted that Mr Steele's written statement in some respects corroborates the account recorded in the COPS report in that Mr Steele suggested he was attacked "while my hands were full with his woman", which suggests he was trying to take the mobile phone from the neighbour. In his written submissions Mr Steele did not address this submission, rather making allegations about the neighbours' conduct, in particular relating to drug dealing and "staring and leering" at other neighbours. 12. Alleged threats against police – July 2016 1. The COPS report in relation to this incident states that, while Mr Steele was working as a security guard at a licensed premises in Surry Hills, at 1 am after uniformed police had walked through the premises, Mr Steele is alleged to have approached another security guard outside the premises and stated that the Police had done nothing about an incident when a driver had reversed into his car and that "he should fill his car full of explosives and drive into Campbelltown Police station and kill police". This was reported to management who passed the allegation to the Police. The COPS report records that Mr Steele had been sacked from and no longer worked for the company for which he had been working at the time. The COPS report also records that Mr Steele had arrived at work at the beginning of his shift in army colours and patterned clothing and boots and had signed the security register in illegible handwriting. The COPS report also recorded that Mr Steele had been sacked following this incident. 2. In his written statement Mr Steele denied the incident. He brought to the hearing before the Tribunal the clothes he claimed he had been wearing on that day. The clothes which Mr Steele showed the Tribunal were not full army colours and patterned clothing. Mr Steele denied making any suggestion about blowing up Campbelltown Police station. 3. Mr Steele also produced at the hearing the work shirt from that job, which he insisted he would have been required to return if he had been sacked. In his oral evidence Mr Steele again denied making any statement about blowing up Police or the police station and denied that he had been dismissed from that job. 13. Taking photos of Liverpool Police Station from car park – July 2016 1. The COPS report relating to this incident records that Mr Steele was seen by an off-duty officer taking photos from Level 6 of the multi-storey car park in Liverpool which overlooks the rear security parking area of Liverpool Police station and courthouse. On that occasion Mr Steele was approached by Police and stated that he was there to train and run up and down the stairwells. The COPS report records that Mr Steele was not sweating or out of breath when interviewed. Mr Steele explained the taking of photos on the basis that he takes photos of every location where he trains. Mr Steele was asked to show the photos to Police and handed Police his mobile phone on which they found only two photos taken that day. Those photos appeared to be taken from the roof level of the car park overlooking the rear of the police station. They showed the rear van dock of the police station and courthouse. Mr Steele was searched and found to be carrying a folding multi-tool including a knife blade approximately 5 centimetres in length. The Police asked Mr Steele why he was carrying the multi-tool and he said "in case I need to fix things" and when asked what type of thing he might need to fix Mr Steele stated "Sometimes I need to fix things while I am at work". Mr Steele was not on his way to work at that time. Mr Steele was charged with having custody of a knife in a public place. 2. In his written evidence Mr Steele explained that he had been in the area on other business and had simply decided on impulse to check out the stairwells of the multi-level car park as he thought it was time to try something different to keep his training sessions "alive and interesting". Mr Steele stated that he had taken photos of the stairwells from the top of the car park and also that he took a couple of photos of the back of the police station while he was there. He said he took the lift back down to ground level as he wasn't actually training at the time and when he reached ground level he was approached and spoken to by two police officers. Mr Steele asserted that the multi-tool had a knife blade no more than 3 centimetres long of which 2 centimetres was actual blade. Mr Steel said he carries a multi-purpose tool with him at most times and alleged that he on one occasion assisted Police to cut a seat belt wrapped around a passenger's neck after a car crash to prevent him from choking. 3. In oral evidence Mr Steele confirmed that he had taken more than two photos on the relevant day and that there were more than two photos on his phone from that day. Mr Steele stated that he had made no attempt to conceal the multi-tool. 4. As a result of this incident and the reported threat to blow up Campbelltown Police station a search warrant was executed at Mr Steele's premises on 27 July 2016. The warrant empowered police to search for "explosives, improvised explosive device, parts for manufacturing explosive devices, documents, photographs, computer equipment for the planning of an explosives attack". The warrant was issued on the basis that there were reasonable grounds to believe that there were on the premises things connected with the offence of "destroy or damage building by explosive with intent to murder". The warrant also suggested there were reasonable grounds to suspect a child prostitution offence had been committed on or with respect to the premises. 5. Mr Steele's mobile phone was the only item seized on the execution of the search warrant. 6. Detective Turco who gave evidence in relation to the execution of the warrant stated that the reference to child prostitution should have been deleted. There was no suggestion that Mr Steele was involved in child prostitution. 7. Detective Turco gave evidence that he had examined Mr Steele's phone himself, that he had searched for photos taken on 27 July 2016 and that he had identified only two photos taken on that day, both of which were of the back of the police station at Liverpool and taken from a height. 8. Under questioning from Mr Steele, Detective Turco acknowledged that nothing had been found on Mr Steele's premises relating to any explosive device or any threat to utilise an explosive device. Detective Turco freely acknowledged that he had no personal concern about Mr Steele seeking to carry out any acts of violence against Police and was not aware of any other police officer who had such a concern. Detective Turco stated that he does not believe Mr Steele is a threat in relation to the allegations investigated in July 2016, that is the alleged threat in relation to Campbelltown Police station and the taking of photographs at Liverpool Police station. 9. In his written submissions Mr Steele stated, in relation to the number of photographs on his phone, that "I was unable to take any more photos at the time as I was ordered to leave the area". This is inconsistent with his evidence before the Tribunal which was that there were more than two photos. 10. It was apparently as a direct result of these incidents that the Commissioner determined to revoke Mr Steele's security licence, however the Commissioner relies in support of the revocation upon all 15 incidents. 14. Attack by Mr Steele's dogs on a neighbour's dog – October 2016 1. The COPS report in relation to this incident records that Mr Steele had three dogs unsecured in his yard. The dogs set upon a neighbour's poodle and ferociously attacked it. As a result the poodle subsequently died of its injuries. The COPS report records that Police subsequently attended Mr Steele's premises and Mr Steele was aggressive towards the Police and when asked what had occurred said "I don't know, it was an accident, they shouldn't have left the gate open, nothing better happen to my dogs or else". 2. In Mr Steele's written evidence he stated that he had been walking the dogs past the neighbour's property when the poodle approached showing aggression towards his dogs. Mr Steele conceded that his dogs had then chased the poodle and bitten it. Mr Steele stated that "I immediately intervened and rescued the poodle". However he noted a cut on the left side of the dog's neck. Mr Steele gave lengthy details of subsequent events in which he indicated that the neighbours had not been sufficiently concerned for the welfare of their dog and that the dog had died because the neighbours had not been sufficiently urgent in taking the dog to a vet. 3. In oral evidence Mr Steele acknowledged that his dogs had not been leashed at the time of the incident as he said they were guard dogs and were controlled and only attacked on command. Mr Steele did not dispute that he had spoken aggressively to the Police when they arrived to interview him but said that it was at 3 am and that the Police had told him they might have to seize his dogs which had upset him. 4. The Commissioner submits that Mr Steele's response to the Police investigation as recorded in the COPS report was a "marked contrast" to the explanation that Mr Steele gave in his written evidence to the effect that the poodle was the aggressor and he had taken steps to save it. 15. Having custody of an offensive implement in a public place – December 2016 1. At the date of the Tribunal hearing the charges were still pending in relation to this incident. The fact sheet tendered by the Commissioner in respect of this incident (Exhibit B) suggests that Mr Steele was stopped for using a mobile telephone while driving and that while the Police were speaking to Mr Steele they saw an axe on the rear floor of the car and a steel pole between the driver's seat and centre console. The fact sheet states that, when questioned about the axe Mr Steele became hostile and stated that it was in his car because he was cutting down his neighbour's tree. When the Police asked why Mr Steele needed to have the axe in his car kilometres from his own address when he was using it at his neighbour's house, Mr Steele continued his hostility. The metal pole beside the driver's seat was found to be a long baton about a metre in length made of metal with a metal stop separating the handle from the baton shaft. The Commissioner tendered photographs of the axe and baton (Exhibit C). The fact sheet records that Mr Steele declined to be interviewed about the baton other than saying that he was once a security guard but had had his licence taken away. 2. In oral evidence Mr Steele explained that he had been asked by a neighbour to cut down a tree. He asserted that the neighbour was in his street quite a few houses down from his house. Mr Steele stated that after cutting down the tree he had put the axe in the back of his car and gone directly to an appointment. 3. Mr Steele explained that the baton is a martial arts training tool and that it was in his car from his last training session. Mr Steele stated that the baton was wedged between the passenger seat and the central console and he had forgotten it was there. Conclusions 1. The Commissioner submitted that the COPS reports: "are contemporaneous business records made by a large number of different police officers working from different areas across the State relying on reports made by a significant number of different people often complaining about the conduct of [Mr Steele]". 1. The Commissioner further submitted that Mr Steele's evidence was: "a completely uncorroborated version of many matters that had occurred over a number of years" and that Mr Steele's explanations for a number of incidents were "implausible or difficult to accept." 1. As an example of Mr Steele's implausible accounts the Commissioner specifically referred to Mr Steele's allegations concerning the conduct of the witness involved in incident 3 who reported to police the allegation of animal cruelty of which Mr Steele was convicted. 2. The Commissioner submitted that the Tribunal should not accept Mr Steele's evidence where it was inconsistent with the accounts recorded in the police COPS events reports. 3. I do not accept uncritically the matters recorded in the COPS reports. Frequently they record statements by witnesses who were clearly parties hostile to Mr Steele in relation to the relevant incidents and in a number of instances declined to provide a formal statement or take the matter further. 4. Nevertheless, even taking into account only the matters recorded in the reports which Mr Steele did not dispute, the sheer number of incidents and Mr Steele's responses to them suggest he is not a fit and proper person to hold a security licence. As noted above, the highest standard of conduct is applicable to licensees in the security industry because of the special role they play in ensuring that public order is maintained in safeguarding community assets and private property, and ensuring that public venues are safe. 5. Mr Steele stated, when it was put to him that everybody else seemed to be making up things in the COPS reports, "if I felt that a police officer was hostile towards me I wouldn't be as open as I otherwise would be". In my view Mr Steele did demonstrate a selective memory and a tendency to self-justification in his evidence. As the Commissioner submitted, Mr Steele's explanations were at times fanciful, generally not supported by any objective corroboration, and based solely on memory. Moreover, Mr Steele's inconsistent statements in relation to the number of photographs he had taken on 27 July 2016, in relation to the reason he was carrying the meat cleaver in June 2012, and in relation to the alleged road rage incident in March 2008 indicate that his evidence is not reliable. 6. The fact that Mr Steele has been convicted of assault on two occasions and has become involved in a significant number of incidents involving physical violence between himself and other persons, both while acting as a security guard and when off duty, including incidents with his neighbours, suggest at the least that Mr Steele lacks the necessary self-control to be trusted in the role of security officer. 7. My conclusion in this regard is reinforced by the fact that, in four of the incidents, identified above as incidents 3, 6, 7 and 11, Mr Steele, on his own admission, was active in initiating or continuing confrontations. In incidents 3 and 11 Mr Steele confronted and became involved in physical contact with other persons who had been filming him. In incident 6 Mr Steele twice pursued and sought to restrain the patron who Mr Steele alleged he was defending himself from. In incident 7, Mr Steele detained persons who he had not observed committing any offence. 8. As I have already noted above, Mr Steele's apparent ignorance of the law concerning when he was entitled to be in possession of an extendable baton and handcuffs, also suggests Mr Steele does not have the requisite knowledge of the duties and responsibilities relevant to the holding of a security licence. 9. I also take into account the number of times on which Mr Steele has been found in possession of knives and other potentially offensive weapons. I recognise that Mr Steele had not at the date of the hearing been convicted of any offence relating to the possession of such items (and the Tribunal has not been made aware of the outcome of the charges pending at the date of the hearing) and Mr Steele has provided explanations for having each of the items at the relevant times. However, given the unreliability of his evidence, as demonstrated by his changing position regarding the number of photographs he had taken on 27 July 2016, regarding the reason he had a meat cleaver in his car in June 2012, and regarding the alleged road rage incident in March 2008, I am not persuaded that his explanations either to the Police or to the Tribunal were fully accurate. 10. I also take into account Mr Steele's frequently aggressive and unco-operative attitude towards the Police. Mr Steele sought to suggest he had in fact been an enthusiastic supporter of the Police and had gone out of his way to assist in the prevention of crime and the apprehension of offenders. Mr Steele proffered, as an example of this, a statement he had made to police in relation to his involvement in the apprehension of some suspected drug dealers (Exhibit 4). I do not doubt that Mr Steele has on occasion been willing to assist Police, but it is apparent from the evidence before the Tribunal that when Mr Steele's own conduct has been called into question he has frequently been aggressive and unco-operative. By way of example I refer to incidents 9 and 14. 11. I find that Mr Steele is not a fit and proper person to hold a security licence of any class and also that it is not in the public interest that Mr Steele hold a security licence of any class. I find that the correct and preferable decision is that Mr Steele's security licence should be revoked and affirm the Commissioner's decision to revoke Mr Steele's security licence. ORDERS 1. The decision under review is affirmed. ********** 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: 22 August 2017