Joyce v Commissioner of Police, New South Wales Police Service [2000] NSWADT 17 (1 March 2000)

Last Updated: 24 March 2000

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Joyce -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 17

PARTIES: APPLICANT

Paul Joyce

RESPONDENT

Commissioner of Police, New South Wales Police Service

FILE NUMBERS: 993122

HEARING DATES: 26/11/99

SUBMISSIONS CLOSED: 26/11/1999

DECISION DATE: 01/03/2000

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Security Industry Act 1997

CASES CITED: Pollard -v- Commonwealth D P P (1992) 28 NSWLR 659

Doyle -v- Commissioner of Police, New South Wales Police Service (2000] NSWADTAP 1

R -v- Alexander William Madden No 60547 of 1994 (4) and (5)

Bourke -v- Commissioner of Police (1998) NSWADT

APPLICATION: Review of a decision to refuse to issue a security industry licence

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: B Niven, Barrister

RESPONDENT REPRESENTATIVE: S Johnson, Solicitor

ORDERS: 1. Decision of respondent to refuse to grant licence is affirmed.

Reasons for Decision:

Background

1 Mr Joyce applied to the Tribunal to review a decision made by a delegate of the Commissioner of Police. The decision was to refuse his application for a Class 2 security licence because he had been convicted of a prescribed offence involving fraud dishonesty or stealing.

2 Mr Joyce was convicted of the offence of "goods in custody" under s 527C of the Crimes Act 1900 on 3 March 1993. He pleaded guilty to the charge and was fined $100.00.

3 Mr Niven, representing Mr Joyce, submitted that the offence for which his client had been convicted was not an offence involving fraud dishonesty or stealing. In addition, he submitted that Mr Joyce was not guilty of the offence and the facts of the case do not indicate any fraud, dishonesty or stealing.

4 The Tribunal has jurisdiction to hear this matter under s 29(1) of the Security Industry Act 1997 (the Act).

Legislation

5 Under s 16(1)(a) of the Act:

The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law

6 The Security Industry Regulation 1998 (the Regulation) prescribes certain offences in Clause 11. Clause 11(d) provides as follows:

Offences involving fraud, dishonesty or stealing

An offence under the law of any Australian or overseas jurisdiction involving fraud, dishonesty or stealing, being an offence in respect of which the maximum penalty is (had the offence been committed under the law of an Australian jurisdiction) imprisonment for 3 months or more.

7 Section 527C of the Crimes Act 1900,the section under which Mr Joyce was convicted, provides that:

Any person who:

(a) has any thing in his or her custody;

(b) has any thing in the custody of another person;

(c) has any thing in or on premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another; or

(d) gives custody or any thing to a person who is not lawfully entitled to possession of the thing, which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, shall be liable on conviction before a Local Court constituted by a Magistrate sitting alone to imprisonment for 6 months, or to a fine of 5 penalty units.

(2) It is a sufficient defence to a prosecution for an offence under subsection(1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

8 The first issue is whether this offence is an offence involving "fraud dishonesty or stealing." The applicant's submission on this point was that the words "or otherwise unlawfully obtained" in s 527C mean that the offence does not necessarily involve fraud dishonesty or stealing. The applicant's representative submitted that the goods in the custody of the person could, for example, be money obtained from selling drugs. In that case, while the money had been "unlawfully obtained" it did not involve fraud, dishonesty or stealing.

9 Before dealing with this submission I am inclined to examine s 527C to identify whether fraud dishonesty or stealing, in the ordinary sense of those words, are involved in the offence.

10 The meaning of the word "involved" in a similar context to the present case was discussed in Pollard v Commonwealth DPP (1992) 28 NSWLR 659. In that case the Supreme Court was considering whether a person convicted under s 178BB of the Crimes Act 1901 had been convicted "of any offence involving fraud or dishonesty" pursuant to s 227(2)(b) of the Companies Code (NSW). Counsel for the plaintiff argued that an offence "involving" fraud or dishonesty means an offence "of" fraud or dishonesty. In rejecting this view, Abadee J stated, at p 666, that:

The word "involving" appears to have been deliberately inserted in contradistinction to the insertion of the word "of". Further, the argument fails to give the section its ordinary meaning, which in my view, leads to no ambiguity or uncertainty. It appears to me that there is a clear difference between an offence "involving" fraud or dishonesty, and an offence `of" fraud or dishonesty.

11 Abadee J decided that where a person has been convicted under s 178BB, that person has committed an offence "involving fraud or dishonesty".

12 The distinction between the words "of" and "involving" was also acknowledged and applied by an Appeal Panel of this Tribunal in Doyle v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP 1.

13 These cases make it clear that there is no need for fraud, dishonesty or stealing to be a legal requirement of an offence for the offence to "involve" them. It is sufficient that these concepts are present in their ordinary sense.

14 Are fraud, dishonesty or stealing "involved" in s 527C? In R v Alexander William Madden No 60547 of 1994 [4] and [5] the Supreme Court stated that:

The issue which the prosecution must establish under s 527C is not whether the arresting police officer or the court reasonably suspects that the thing was unlawfully obtained; rather, it is whether such a description may objectively relate to the thing itself - that it is something which might reasonably be suspected of having been unlawfully obtained. . . . It is unnecessary to prove that the person charged entertained, or may have entertained, such a suspicion. This is an issue which may be raised in relation to the defence afforded by s 527C(2). . .

The effect of this statutory framework is thus that the state of knowledge of the person charged as to the provenance of the particular things found in his custody is irrelevant to the prosecution case; but, if the court is satisfied beyond reasonable doubt upon the state of the evidence before it that those things may be reasonably suspected of being stolen or otherwise unlawfully obtained, the person charged must, in order to escape conviction, discharge the lesser civil onus upon him of satisfying the court that he had no reasonable grounds for suspecting that they were stolen or unlawfully obtained.

15 The Crown does not need to prove that the person charged stole or otherwise unlawfully obtained the "thing" - generally goods. All that is required is that the person has the goods in his or her custody and that the goods themselves, from an objective point of view, may be reasonably suspected of being stolen or otherwise unlawfully obtained.

16 A person charged under 527C can rely on the defence that he or she had no reasonable grounds for suspecting that the goods were stolen or otherwise unlawfully obtained. That suspicion must relate to the goods themselves.

17 This analysis makes it clear that fraud, dishonesty or stealing are not legal requirements or elements of an offence under s 527C. Are they nevertheless "involved" in the offence? In my view stealing is not "involved" in s 527C because the stealing does not relate to the person charged. Even if a person does have reasonable grounds for suspecting that goods in his or her custody were stolen, that person is not necessarily implicated in the stealing of them. Just because an offence contains the word "stealing" does not necessarily mean that it is an offence involving stealing. It cannot have been parliament's intention to deny a security licence to a person convicted of an offence "involving stealing" unless the stealing relates to that person.

18 My conclusions are different in relation to whether the offence involves "dishonesty." "Dishonesty" is defined in the Concise Oxford Dictionary( 7th edition, Oxford at the Clarendon Press 1982) as "lack of honesty; deceitfulness, fraud." A person would be acting dishonestly or deceitfully where that person fails to disclose to police that goods have come into his or her custody in circumstances where that person has reasonable grounds for suspecting that the goods have been stolen or otherwise unlawfully obtained. The ordinary meaning of dishonesty does not require that the person engage in some positive act. It can include a situation where a person fails to act.

19 It does not make any difference to this conclusion whether the goods in the person's custody have been stolen or obtained by some other unlawful means. The person has still acted dishonestly or deceitfully by failing to take any action which would bring the situation to the attention of police. This conclusion makes it unnecessary to consider the applicant's submission outlined in paragraph 8.

20 The second issue is whether the Tribunal can look behind the offence to the particular facts of the case to determine whether Mr Joyce was in fact guilty of the offence or whether the facts involve any fraud, dishonesty or stealing.

21 In Bourke v Commissioner of Police [1998] NSWADT, Judge O'Connor, President of the Tribunal, held that:

". . . the Tribunal is only able to proceed to satisfy itself that the objective facts as they are called, upon which the Commissioner relied were properly relied upon by the Commissioner. That clearly goes simply to the question of whether there was a conviction or a finding of a charge proven of a kind which fits within the parameters of section 16."

22 In other words, the Tribunal cannot go behind the offence. In particular, the Tribunal cannot make a determination about whether the applicant was in fact guilty of the offence or whether the facts of the particular case involved fraud, dishonesty or stealing. As long as the applicant has been convicted of the offence and that offence fits within the description of a prescribed offence under the Regulation, the administrator must refuse to grant a security licence to that person. For this reason I have not referred to the evidence given by Mr Joyce about the particular circumstances of the offence.

23 I appreciate that these findings operate harshly against Mr Joyce who has been in the industry for a considerable period of time and is required to hold a security licence as part of his business as a locksmith. He was not represented before the court in relation to the criminal charges. He pleaded guilty and was fined a mere $100.00. The circumstances of the offence as explained by Mr Joyce indicate that this case is a prime example of a mandatory rule excluding a person who is otherwise a fit and proper person to work in the security industry.

24 The administrator's decision to refuse Mr Joyce's application for a security licence is affirmed.