Ashford v Roads and Maritime Services [2017] NSWCATOD 170

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashford v Roads and Maritime Services [2017] NSWCATOD 170 Hearing dates: 01 August 2017 Date of orders: 29 November 2017 Decision date: 29 November 2017 Jurisdiction: Occupational Division Before: DAC Robertson, Senior Member Decision: The decision under review is affirmed. Catchwords: Administrative Review – Passenger Transport Act – authority to drive public passenger transport vehicles - good repute – relevance of conviction - referees attesting to character and reputation but not referring to conviction – fit and proper person – relevance of conviction Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Passenger Transport Act 1990 (NSW) Cases Cited: Farquharson v Director General, Department of Transport [1990] NSWADT 53 Loye v Director General, Department of Transport [2000] NSWADT 145 Singh v Director General, Department of Transport [1999] NSWADT 96 Category: Principal judgment Parties: Spencer Ashford (Appellant) Roads and Maritime Services (Respondent) Representation: In person (Appellant)

Counsel: Mr Wozniak (Respondent) File Number(s): 2017/00093763

REASONS FOR DECISION 1. This is an application for review pursuant to the Administrative Decisions Review Act 1997 (NSW) of the decision of the respondent, Roads & Maritime Services (RMS) to refuse the applicant an authority to drive buses pursuant to the Passenger Transport Act 1990 (NSW). 2. Section 11(2) of the Passenger Transport Act provides: 11 Authorities (1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division. Maximum penalty: 100 penalty units. (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom. 1. Section 12 of the Passenger Transport Act provides: 12 Criteria and procedure (1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant. (3) Procedures for the purposes of this section may be settled by RMS, subject to any provision in that behalf made by the regulations. 1. The RMS opposes the grant of a bus authority to Mr Ashford on the basis that he is not of good repute and is not in other respects a fit and proper person to be the driver of a public passenger vehicle. 2. Mr Ashford made application for an authority to drive a bus or tourist vehicle on 24 August 2016. In that application he disclosed that in 2008 he had been convicted of the offence of cultivating a prohibited plant in respect of which offence he had been sentenced to two years and three months imprisonment with a non-parole period of twelve months. Mr Ashford also disclosed that three further offences, possess prohibited drug, supply prohibited drug and deal with property suspected of being proceeds of crime, had been taken into account in the sentencing of Mr Ashford for the cultivation offence. 3. On 5 January 2017 the RMS notified Mr Ashford that it had determined to refuse his application by reason of his criminal record. Mr Ashford applied for internal review of that decision. On 10 February 2017 the RMS notified Mr Ashford that the internal reviewer had affirmed the decision to refuse the application for authorisation to drive buses. 4. The internal review decision described the reasoning process that led to the decision as follows: Roads and Maritime Services has a continuing obligation under the Passenger Transport Act 1990 to ensure that persons authorised to drive public passenger vehicles are of good repute and in all other respects fit and proper persons. The Act also requires Roads and Maritime to positively 'attest' to applicants' fitness and propriety. This offence is of a serious nature and demonstrates unacceptable behaviour. It also raises questions as to whether Mr Ashford has sufficient responsibility to ensure that whilst holding a public passenger authority, he would behave in the manner expected of the driver of a public passenger vehicle and in accordance with law and custom. The additional information Mr Ashford has provided with his Internal Review request has been taken into consideration however the criminal convictions recorded against him are of a very serious nature, so serious, in fact that the magistrate saw fit to sentence Mr Ashford to a period of incarceration. I cannot attest that Mr Ashford is a fit and proper person for the purposes of the Passenger Transport Act 1990. 1. Mr Ashford applied to the Tribunal for review pursuant to the Administrative Decisions Review Act of the decision of RMS to refuse him the authorisation. The task of the Tribunal is to decide what is the correct and preferable decision and in doing so, it may exercise all of the functions conferred or imposed by any relevant legislation on the administrator who made the decision on behalf of the RMS (Section 63 of the Administrative Decisions Review Act 1997 (NSW)). 2. In support of his application Mr Ashford relied upon a number of references which became Exhibit A. Those references were as follows (I do not consider it necessary to identify the referees by name): 1. A reference from his general practitioner, Dr M H, who states: This is to certify that I have known Mr Spencer Ashford for a period of 4 years now. In that time I have only known Spencer to be a model patient and upstanding member of the Byron Community. He has been a member of the local fire brigade for 6 years. Always punctual and amicable, I have no problem recommending Spencer for any job including bus driving. 1. Ms P L, who states: I have known Spencer Ashford for several years. He regularly takes me to and collects me from various airports. He is always courteous, reliable and punctual and the trip conversation is always entertaining, thoughtful and well informed. I can thoroughly recommend Spencer as a very decent human being who takes good care of his clients and honours his responsibilities. 1. Ms M R, a Justice of the Peace, who states: This is to certify that I have known Spencer Ashford for several years. During this time I have engaged Spencer to take care of not only myself but more importantly my entire family. In this role his integrity, responsibility and initiative is essential. He constantly demonstrates complete commitment to any task he executes. His standards and values are very evidence and a pleasure to witness. At all times Spencer has delivered beyond my expectations. It is a privilege to provide him with a personal reference and I wish him well in his chosen endeavour. 1. An employer, Mr A R, who states: Spencer Ashford has been employed on a part-time basis by [Name] Foods since February 2013 in the capacity of delivery driver/sales rep. He is a valuable team member who is extremely reliable, easy going and efficient. I have no hesitation in recommending Spencer in any position that he is applying for. 1. Mr A H, the Station Commander of the Bangalow Fire Station, who states: Spencer Ashford served with the NSW Fire and Rescue for 5 years from 8/3/2010 to 10/8/2015. Spencer was one of the best fire fighters we have had at the station in a number of years. Spencer was very community minded and caring person and was very passionate about serving the community in his time in the NSWFB. Spencer had a deep love for community and family and at any time if I asked Spencer to help with anything he was always there. Spencer was chosen over a lot of other fire fighters to do a station management course which he passed with flying colours. I had no problems in leaving Spencer in charge at any fire or rescue that we went to with the fire brigade. It has given me great pleasure in writing this reference for Spencer and I would also be very happy to receive a call about Spencer. 1. Mr Ashford submitted that the above quoted references establish that he is a person of good repute. 2. Mr Wozniak submitted in response on behalf of the RMS that the references were not adequate to overcome the fact of Mr Ashford's conviction. Mr Wozniak referred to a decision of the Administrative Decisions Tribunal, Loye v Director General, Department of Transport [2000] NSWADT 145 in which a judicial member of that Tribunal stated that: 22 Mr Loye does not fail to be of good repute simply because he has a criminal history. "The assessment . . . of good character is for the jury; hence it is wrong to direct a jury that evidence of good character is destroyed by proof of convictions . . . " (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19135, citing Manwaring v R [1983] 2 NSWLR 82 at 86 in relation to the character of an accused person). 23 Similarly, this Tribunal in Saadieh v Director-General, Department of Transport [1999] NSWADT 68 made clear in paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence, and not determined only by the existence of a criminal history. 24 This Tribunal has on a number of occasions invoked the authority of Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 to the following effect: A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession (per Waddell J at page 393). 25 His Honour went on to say "Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed most cogent evidence, of bad reputation". This seems at odds with the preceding statement quoted above. A person's repute is an evidentiary issue turning on the estimation of witnesses who know the person. Previous convictions are relevant to this extent: They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are acted on by people generally as the best guide to his reputation and standing (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19165 citing Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER 369 concerning defamation cases) 26 Because convictions are arrived at in open court, it is to be assumed that they are public knowledge and so go to a person's reputation. 27 The Department submitted in these proceedings that a history of convictions is prima facie evidence of bad repute. That submission was rejected by the Tribunal in Saadieh, and the above authority of Goody v Oldhams Press clearly shows it to be misconceived. 28 Repute is what is thought by others. People take the history of convictions as "the best guide to . . . reputation and standing". A history of convictions is the basis for bad repute, not evidence of bad repute in itself. A bad reputation is "built up" on the history of convictions. 29 As a matter of law, a criminal history is not evidence of bad repute, but creates a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation. 30 As a matter of fact in the particular case, the criminal history is relevant to the extent that it is known in the community, and that it bears on the person's reputation in that community: A witness may with perfect truth swear that a man who, to his knowledge, has been a receiver of stolen goods for years, has an excellent character for honesty if he has the good luck to conceal his crimes from his neighbours (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19110 citing Digest of the Laws of Evidence 12th ed p 201). 31 There is no saying what effect knowledge of the criminal history might have on the estimation of a person's character, although a positive estimation in spite of knowledge of a criminal history would ordinarily weigh in favour of the person. Whether the person's criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute. 32 The Department having identified a history of convictions, the applicant must show that in spite of that history he enjoys a good reputation. Evidence of a person's repute comes from people who can say what a "specific group of people" think of the person. As well, a person may hold a position in the community from which it is reasonable that a person is well regarded. It is necessary to receive evidence relating to the estimation of those groups referred to in Re T and the Director of Youth and Community Services above. The probative value of that evidence will be the greater the more current it is. 1. In that decision, at [42], the Judicial Member stated that he gave less weight to the evidence of references attesting to the applicant's reputation: "because it does not show that the person expressing the view is aware of Mr Loye's criminal history. Nor does it show that the person expressing the view was aware of the purpose for which they were expressing it." 1. Mr Wozniak submitted that Mr Ashford could not satisfy his onus of proof, of establishing that he was a person of good repute in the face of his conviction, by references which do not refer to his conviction and do not indicate that the person providing the reference was aware that the reference was to be used in the Tribunal to establish Mr Ashford's good reputation. 2. I accept Mr Wozniak's submission. Although each of the referees speaks highly of Mr Ashford and his character, none of the references include any suggestion that the referee was aware of Mr Ashford's conviction. Without evidence that the referees were explicitly aware of Mr Ashford's conviction and, despite that knowledge, attested to his good reputation, with knowledge that that attestation is to be tendered in the Tribunal for the purpose of establishing that Mr Ashford has a good reputation, the references are of limited value in assessing Mr Ashford's reputation. 3. Accordingly I am not persuaded that Mr Ashford is of good repute. 4. In respect of the requirement that Mr Ashford be a fit and proper person, Mr Ashford submits: that he has served his time, that he has not re-offended, that he has served as a fireman, as his former station commander indicated, for a period of more than five years, and that he did so without criticism. 5. In response Mr Wozniak, on behalf of the RMS, relied upon the seriousness of the offences and additionally on the fact that Mr Ashford had signed consent orders in proceedings brought by the NSW Crime Commission in the Supreme Court by which Mr Ashford agreed to forfeit cash and the net proceeds of sale of a property owned by him to the Crown. The amount effectively forfeited after payment of debts and legal expenses was about $90,000. Mr Wozniak submitted that Mr Ashford's consent to orders for the forfeiture of a sum of that magnitude arguably constituted an admission by Mr Ashford that he had committed offences beyond the offences of which he was convicted and those taken into account. 6. In Farquharson v Director General, Department of Transport [1990] NSWADT 53 at [27], the President of the Administrative Decisions Tribunal stated: Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J). 1. The considerations relevant to the assessment of fitness and propriety were discussed by a Deputy President of the Administrative Decisions Tribunal in Singh v Director General, Department of Transport [1999] NSWADT 96 at [25] to [28] and [31] to [33]: 25 … Being a "fit and proper person" includes being of "good repute" but the concepts involve different considerations. 26 The High Court in Hughes and Vale Proprietary Limited and Anor v The State of NSW and Ors (No.2) (1955) 93 CLR 127 at 156 said that: "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. 27 The presence of dishonesty was taken very seriously by the Supreme Court of South Australia in McNamara v Arnold (unreported decision of the Supreme court of South Australia, 26 October 1995 BC9502405 at 10). Matheson J said that: In this matter, even if the Tribunal merely looks at the [appellant's] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person. 28 But it has been recognised that being a "fit and proper person" is not capable of any objective definition. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." … 31 In Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 the ACT Administrative Appeals Tribunal Professor LJ Curtis, President put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi." 32 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, I set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors were: the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the applicant; the applicant's driving record; the applicant's reputation in the community; and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 33 I also noted in that case that in assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time; and any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 1. Mr Wozniak submitted that it was essential to have regard to the reasonable person with whom Mr Ashford would come into contact in the course of his utilisation of an authority to drive a public passenger vehicle and that such persons would potentially include children. Mr Wozniak submitted that the reasonable person whose consideration of whether Mr Ashford was a fit and proper person would include the parents of children who might be transported by Mr Ashford. 2. The applicant argued that he would not be driving children in that he would need to pass a working with children check in order to do so. Mr Wozniak submitted that it was not possible to grant an authority conditionally. I accept this submission. I must consider Mr Ashford's application on the basis that the grant of an authority to Mr Ashford may result in him driving groups of children in the absence of their parents. 3. In determining whether Mr Ashford is a fit and proper person to hold an authority to drive buses under the Passenger Transport Act, I would take into account that it has been 7 years since Mr Ashford's sentence concluded and nearly 9 years since he was released from prison and that he has apparently been a law-abiding citizen since that time with no further convictions or charges. I would also take into account that he has been working in that time as a fireman and a delivery driver and apparently has had a clear driving record since his release from prison. I recognise that Mr Ashford's offences were serious and resulted in his serving a prison sentence. However, had I been satisfied that Mr Ashford was of good repute I would have found it hard to conclude that he is not a fit and proper person. A reasonable person with whom Mr Ashford comes into contact, including the parents of children whom he might be called upon to drive, would recognise the possibility, indeed likelihood, of rehabilitation. 4. However, because I cannot be satisfied that Mr Ashford is of good repute, I do not need to reach a final conclusion with regard to the question of whether he is a fit and proper person. 5. I therefore affirm the decision. I note that Mr Wozniak's own submissions acknowledged that the relevance of Mr Ashford's convictions would diminish with time. Mr Wozniak's submission was that the scales should still tip against Mr Ashford as sufficient time has not yet elapsed. 6. As noted above, Mr Ashford's referees do speak very highly of him but did not provide the evidence essential if their references were to be relevant and of significant weight in these proceedings, that is that the referees were aware of Mr Ashford's convictions and that the references were to be used for the purpose of submission to the Tribunal. 7. Accordingly I order that 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: 29 November 2017