Giri v Roads and Maritime Services
[2012] NSWADT 241
•22 November 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Giri v Roads and Maritime Services [2012] NSWADT 241 Hearing dates: 1 November 2012 Decision date: 22 November 2012 Jurisdiction: General Division Before: C Huntsman, Judicial member Decision: The decision is affirmed
Catchwords: Application for grant of authority to drive taxis; serious criminal offence several years ago when under 20 years of age; currently on parole for the offence; evidence of prior good character; evidence of good behaviour whilst in prison warranting release to parole; whether Applicant is of good repute and a fit and proper person to be authorised to drive taxis Legislation Cited: S4, 33 Passenger Transport Act 1990 Cases Cited: AJO v Director-General Department of Transport [2012] NSWADT 101;
Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279
Lloyd v Director General, Department of Transport [2001] NSWADT 201
McKenzie v Director General, Department of Transport [2000] NSWADT 126
Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16
Nasour v Director-General, Transport NSW [2011] NSWADT 91
Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Saadieh v Director General, Department of Transport [1999] NSWADT 68
A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310Category: Principal judgment Parties: Nitin Giri, Applicant
Roads and Maritime Services, (Respondent)Representation: N Giri (Applicant, in person)
Smythe Woznaik Legal (Respondent)
File Number(s): 123213
REASONS FOR DECISION
Background
This was an application by Mr Giri, the Applicant, for review of a decision of the Respondent, Roads and Maritime Services, to refuse his application for an authority to drive taxicabs.
The Applicant applied for an authority to drive taxi-cabs, the application was received by the Respondent on 15 March 2012. By letter dated 7 June 2012 the Respondent notified the Applicant of the decision to refuse his application for authorisation to drive taxicabs. By letter dated 25 June 2012 the Applicant sought internal review of the decision. The decision was affirmed on internal review, and the Applicant seeks review of the decision by the Tribunal.
The reason for the Respondent's decision was the Applicant's criminal record. The Applicant was charged in 1996, and convicted at trial in 1999, of the offence of murder. When charged with the offence he was 19 years of age. Upon conviction in 1999 he was sentenced to 17 years imprisonment, with a minimum term of 12 years, so that he was eligible for release to parole for the last five years of his sentence. He was in fact released to parole at the earliest possible date, which was in September 2011. Although he is currently residing in the community, he is on parole and continues to serve his sentence in the community. Being on parole, he can be returned to prison for misconduct or breaches of the terms of his parole. His sentence expires in September 2016.
The Respondent's case
The Respondent's case was detailed in the written decision record and in oral submissions to the Tribunal at the hearing. The Respondent provided written evidence being the section 58 documents (documents from the Respondent's file relating to the application for authorisation to drive taxicabs); and a record of the Justice Studdert's remarks on sentencing (R v Giri and Karki [1999] NSWSC 1269, 21 December 1999).
In oral submissions the Respondent stated that the offence for which the Applicant had been convicted and sentenced in 1999 was a most serious offence, it being the offence of murder. The Respondent conceded that the Applicant had provided evidence indicating his good behaviour whilst in prison, rehabilitation programmes undertaken, and the lack of any further offences. The Respondent conceded that the psychiatric risk assessment, and other reports provided by the Applicant, indicated a low risk of further offending. The Respondent also conceded that the remarks on sentencing which detailed the Applicant's background prior to the commission of the offence, indicated that he was previously of good repute, being from a good family who engaged in community work.
Although these matters were conceded the Respondent firmly submitted that the Applicant could not be considered to be a fit and proper person to drive a taxi cab, because he had been convicted of one of the most serious offences; and he was only relatively recently at liberty in the community. The Respondent stated that the Applicant had been released to the community on parole for just 13 months, and this was after having been removed from the community for 12 years (this having been the length of time in prison prior to release in parole). Further he was still serving a sentence whilst on parole. The Respondent stated that it could not be considered by the Tribunal that the Applicant was sufficiently rehabilitated, to be considered a fit and proper person to be authorised to drive a public passenger vehicle, given that he was still serving a sentence for a serious criminal offence. The Respondent submitted that even without the issue of the Applicant being on parole and thereby still serving his sentence, the period since he was released to the community, being one year and one month, in the context of the serious criminal offence and the length of time of incarceration, could not be considered to be a sufficient passage of time to evidence rehabilitation by the Applicant.
The Applicant's case
The Applicant provided written material including a four-page written submission with attachments. The attachments included the Probation and Parole Service Pre-Release Report dated 4 July 2011; VOTP (Violent Offenders Therapeutic Program); Discharge Summary dated 31 August 2009; report by Dr Stephen Allnutt, Senior Consultant Forensic Psychiatrist, of 28 March 2011; reference letter by Senior Overseer, Scott Keen, Bathurst Correctional Centre, dated 16 August 2011; reference letter by Indra Ban, Order of Australia Merit, dated 9 September 2012; reference letter by Dr Vivienne Kondos of 8 October 2012; reference letter by Jan Birmingham Long Day Correctional Complex; reference letter by Father Peter Carroll, Long Bay Chaplaincy, dated 25 March 2011. The Applicant also made oral submissions to the Tribunal.
The Probation and Parole Service Pre-Release Report states the following. The Applicant "In discussing the offence .. presented as genuine in expressing his remorse...displayed a high level of insight into the impact of his offending behaviour...." The report details the Applicant's recognition of the impact of his crime on the victim's family, and his recognition and remorse also at the burden he has placed on his own family. His response to the correctional environment was described including that he always presented as polite and well groomed and was considered a model inmate. Throughout his time in custody he availed himself of every opportunity undertake education, employment and programs, and his level of participation was considered to be of a high standard. Alcohol was involved in his offence and he undertook drug and alcohol programs in gaol, but it was noted that he was also adamant when talking about his offence that alcohol did not excuse his offending behaviour. He successfully completed anger management courses, the moderate intensity Violent Offenders Therapeutic Program (VPOT). He undertook educational opportunities including a number of occupational courses and work skills courses. His work reports are recorded as having been always positive, with special note being made in relation to his willingness to attend to all tasks. Casenotes from February 2011 recorded in the report stated that the position of clerk in the kitchen is the "most demanding and trusted in all the CSI industries. He is always compliant and can be relied upon to carry out tasks as required. He shows initiative and is always looking to find work, requires no supervision and is very reliable". It is also recorded that following a change to minimum security classification he commenced with the Mobile Outreach Program on 7 June 2011 and this employment allowed him to attend various locations in the Bathurst area. It is recorded that he initially found leaving the gaol a little daunting but it was considered to have been beneficial to him enabling gradual readjustment to re-entry to community living. Post release plans are detailed in the report and it is noted that although assessment tools indicated a low risk of reoffending this had been overridden to medium risk, due to the seriousness of his offence. The report concludes "not only has Mr Giri displayed exceptional behaviour within the custodial environment he has consistently displayed a positive attitude towards education, employment and addressing his issues through completion of therapeutic programs, therefore his release to parole is recommended..." The report was endorsed by the unit leader who added the observation that Mr Giri had never incurred an internal mis-conduct charge and had achieved the lowest classification level available. He had demonstrated his ability to adjust to normal community life through his successful completion of day leave.
The Violent Offenders Therapeutic Program (VTOP) report of 2009 noted that the Applicant had significant family support approaching release (family having moved from Nepal to Sydney), he had demonstrated empathy and had not minimised or justified his actions toward the victim.
"He committed his crime thirteen years ago when he was 19 years old. A number of risk factors present at the time of offending(such as adolescent status behaviours, impulsivity, rebelliousness)have ameliorated over time due to maturation and acquisition of self management skills. Mr Giri has not incurred institutional charges and has been a consistent worker and student throughout his sentence to date. He has shown considerable insight....he has been assessed as low risk for re-offending on a number of actuarial instruments".
Protective factors including family support were noted.
The report of Dr Allnutt, Senior Consultant Forensic Psychiatrist, detailed there was no history of mental illness, no relevant medical history, no history of abuse of illicit drugs. The Applicant first drank alcohol when he came to Australia at age 19. He came to Australia to study, his family lived in Nepal. After arriving in Australia and commencing his studies for the HSC at TAFE the offence occurred. Although he'd never become addicted to alcohol, he undertook drug and alcohol counselling in gaol because of the impact it had on him in relation to the offence. While the program facilitators told him that he did not have a significant alcohol problem, he still pursued the program. Dr Allnutt found:
"At the material time of the offence the Applicant was at a young age with limited social supports and was probably to a degree intoxicated; given his age he was likely more prone to impulsive behaviour; since then he has availed himself of the number of programs whilst in prison to the extent that he is now more mature; he understands the risks of alcohol abuse; he has manifested the ability to control his emotions; he presents himself in a positive manner; he has no prior history of a criminal conviction; he has, in my view, engaged remarkably well in whatever rehabilitation and performed well in whatever rehabilitation that was provided for him in prison and has the ongoing support of his family; all these factors would suggest that he presents as a person with a relatively good prognosis and good prospects for reintegration in the general community, who causes low concern about future recidivism compared to other offenders."
Dr Allnutt recommended that when released the Applicant be followed up by a forensic psychologist to assist with reintegration into Australian culture as this may be a significant stressor for him, and further recommended his family be involved with the process. "He should be encouraged to pursue gainful employment as soon as possible".
The probation and parole report noted that on a home visit the family environment was positive, the family did not seek to excuse the Applicant's offence and remained very supportive of him.
The sentencing judgement (R v Giri and Karki [1999] NSWSC 1269, 21 December 1999) indicates that prior to the criminal offence the Applicant was of good character, belonged to a family who "has developed a reputation for generosity, benevolence and support of community projects in Nepal. It seems that the prisoner himself was involved in community projects before he left Nepal." The judgment records that the family were committed to charity and community works, had a social conscience, although they were privileged by Nepalese standards. Mr Giri received a good education before coming to Australia to continue his education. He enrolled at TAFE to study his HSC and worked part time in a fast food outlet where he was promoted to position of trainee manager.
The sentencing judgement notes that the author of the pre-sentence report found that the Applicant was a young man who "apart from his involvement in this offence appears to have led a respectable and dutiful lifestyle... appears conscientious and devoted to his family with concern about them being foremost in his thoughts " . The Applicant gave evidence at the sentencing hearing, expressing his contrition and his shame, and Justice Studdert found "I accept that the expression of these sentiments was genuine" .
His immediate family now live in Australia - parents and brothers -and continue to provide support to the Applicant. Such family support is considered to be an indicator of successful reintegration into the community, in the view of the writers of the reports before the Tribunal.
The Law
The Passenger Transport Act 1990 provides:
Section 33, Passenger Transport Act 1990
33 Authorities
(1)The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver".
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units.
(3) 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 taxi-cab, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:
(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and
(ii) in accordance with law and custom.
4 Objects
The objects of this Act are:
(a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and .............
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and
(f) to encourage co-ordination of public transport services.
Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
In making a decision whether to grant an authority, it is clear that regard must be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in s33(3)(a)(b) of the Act, namely to attest that the authorised person is: of good repute; and a fit and proper person (to be so authorised); and considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with -law and custom, and in accordance with the conditions under which the taxi service is operated.
The Respondent submits that the Tribunal would not be satisfied that the Applicant is a fit and proper person to be granted an authority. The Applicant in providing evidence as to his good conduct and rehabilitation, and his reputation (character references) states that the Tribunal would be satisfied as to his fitness and repute.
In deciding this matter the Tribunal has also had regard to prior decisions of the Tribunal discussing the legislative requirements. A useful review of the authorities was provided in the case of AJO v Director-General Department of Transport [2012] NSWADT 101 (25 May 2012) at paragraphs 24 to 35:
24.Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
25.In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:
'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.'
Toohey and Gaudron JJ said at 380:
"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."
26.A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court said (at 156-7):
"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. 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 ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
27.In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:
"In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a 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 ... as a person to be entrusted with the sort of work which the licence entails."
28.Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the Applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).
29.In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:
the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted;
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.
30.In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.
31.The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."
32.As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
'A distinction must be drawn between "repute" or "reputation" and
"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."
In Melbourne v The Queen [1999] HCA 32; [1999] 198 CLR 1 at 15 McHugh J explained:
"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."
33.In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:
"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."
That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the Applicant was a man of good character:
"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the Applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279."
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
34.In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy.
35With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder.
A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance:
38.Good Repute:The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive....
42.The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
"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 ... to rehabilitate himself, would object to the Applicant as the driver of the taxi."'
The Appeal Panel of the Tribunal in a recent case considered the role of the "perception of the public" in decisions about whether an Applicant is a "fit and proper person". The Appeal Panel of the Tribunal in the case of Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an Applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public.
The Appeal Panel's decision in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) was subject of comment by the President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 (4 May 2011):
In that case [Farquarssen] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
Useful guidance was offered by the Tribunal in the case Saadieh v Director General, Department of Transport [1999] NSWADT 68 as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal then observed:
Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
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.
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.
The evidence and the Tribunal's reasoning
The Tribunal finds on the evidence that the Applicant was convicted of a very serious offence, murder, which occurred in 1996 when he was 19 years of age and for which he was sentenced to a lengthy gaol term in 1999. He is still serving the sentence on parole in the community and will continue to do so until September 2016.
The Tribunal has considered and given weight to the judgement for the sentencing hearing dated 21 December 1999, (R v Giri and Karki [1999] NSWSC 1269). The Applicant had been convicted at trial on the charge of murder, with co-accused, Mr Karki. The offence occurred at King's Cross early on the morning of 22 June 1996. It was accepted by the court that the victim was knocked to the ground and kicked, with at least one witness having said he was stomped upon. He sustained severe head injuries and was admitted to hospital unconscious and never recovered. The sentencing judgment indicates that there were a series of altercations/interactions on the night between the deceased and his friends, and the co-accused, Mr Karki, and his companions. Later there was a further confrontation outside a nightclub and upon still later leaving that nightclub, the deceased was followed by the co-acused, the Applicant and their companions. Whilst there were differences in eye witness accounts Justice Studdert, in sentencing the Applicant, was satisfied that the Jury clearly accepted that Mr Giri and the co-accused were inculpated in the assault on the deceased, who was also affected by intoxicating liquor. The Court was satisfied that both the Applicant and co-accused kicked the victim after he fell, and sentenced the Applicant accordingly.
The Court found the appropriate total sentence was prison for 17 years, however found there were special circumstances, and fixed the minimum term at 12 years with an additional term of five years. The minimum term commenced on 15 September 1999 and expired on 14 September 2011, with an additional term of five years to commence on 15 September 2011 and expire on 14 September 2016. Accordingly, 15 September 2011 was the first date upon which the Applicant was eligible for release on parole.
The Tribunal discussed the evidence with the Respondent's representative and it was conceded that the Applicant's evidence supported the conclusion that prior to the offence he was of good character. It was also conceded that the references submitted by the Applicant in the proceedings were of good quality in that the referees expressed awareness of the Applicant's criminal history and his application for taxi driver authorisation and expressed the view that he was of good character to perform this role notwithstanding the criminal offence. The Respondent's representative also conceded that the records and reports in evidence relating to the Applicant's time in prison indicated that he had behaved well and undertaken rehabilitation and education opportunities.
The Respondent's submission is that the offence is simply too serious, and there has been insufficient time that the Applicant has resided in the community since release from prison on parole, being just over one year. It was submitted the period of time in the community was insufficient to indicate that the Applicant had rehabilitated to the extent that he could be considered fit and proper for the purpose of being granted an authority to drive taxicabs. The Respondent's submission is that the view of a member of the travelling public, if they knew they were to get into a taxi driven by a person on parole for murder, would be that they would not want to get into the taxi. Given the seriousness of the offence a significant period of rehabilitation should be evidenced. Further, the Respondent's view is that the Applicant cannot be considered to be a fit and proper person to be granted taxi driver authority while he is still serving a sentence for murder, being still on parole and serving the sentence.
The Tribunal discussed with the Respondent's representative whether there were any authorities indicating that a person on parole could not be considered to be fit and proper - that is, that there would be considered to be an absolute bar on a person still serving a sentence being considered to be rehabilitated. The Respondent's representative said there was no authority on point but indicated that the authorities and legislation would persuade the Tribunal that a person still serving a sentence for a charge of murder could not be considered to be of good repute and a fit and proper person to drive a taxi.
In the case McKenzie v Director General, Department of Transport [2000] NSWADT 126 (6 September 2000) the Tribunal stated:
In reaching the decision to revoke Mr McKenzie's authority the administrator properly gave considerable weight to the fact that Mr McKenzie is currently on a recognisance, which will not expire until December 2001.
A critical issue to be determined in this matter is whether Mr McKenzie can be said to meet the high standards set out in s 11 of the Act while he remains on a bond.
Mr Wozniak submits that Mr McKenzie's bond must be seen as highly relevant.
I accept that the bond is relevant in the sense argued by Mr Wozniak but also in another way. It is a significant deterrent for Mr McKenzie who is now in effect, on probation. Should he breach the bond, he faces the prospect of severe punishment by the Court. This is a significant incentive to behave impeccably.
In the case of Lloyd v Director General, Department of Transport [2001] NSWADT 201 the Tribunal observed:
38 Mr Lloyd submitted that the remaining period of the Bond should not prevent him from holding an authority to drive Public Passenger Vehicles. He referred the Tribunal to the decisions of Rasheed and McKenzie -v- Director General, Department of Transport [2000] NSWADT 126 as authority for that proposition. In Rasheed the presiding Judicial Member stated at paragraph 36 of the written decision:
"Finally, it was submitted to me by Mr Wozniak for the Respondent that the fact that the Applicant will remain under a bond until 20 May 2000 prevents a finding under s 11(2) of the Act that he is 'of good repute'. I do not accept this. The sentence for the conviction cannot be looked at separately, nor can it elevate the facts of the offence into something more severe. It is the offence itself, confirmed as it is by the conviction, that must be assessed under s 11(2)." ........
The Tribunal must attest that Mr Lloyd is a fit and proper person to be the driver of a public passenger vehicle, otherwise the Respondent's decision must be affirmed.
In assessing whether sufficient time has elapsed since the offences, I am guided by the time imposed by the Courts in terms of the good behaviour bond.
I accept that the bond is clearly not conclusive of a time at which Mr Lloyd can be said to be rehabilitated. However, in the absence of any independent current psychiatric report I am of the view that it would be imprudent to allow Mr Lloyd to hold the authority sought prior to the expiration of the bond in August 2002.
I note Mr Wozniak's submission that if Mr Lloyd does not re-offend during the remaining period of the bond then the Respondent would take notice of that fact if Mr Lloyd were to reapply for an authority. In my view that would be a reasonable approach.
I am also of the view that if Mr Lloyd were to obtain a psychiatric report which addresses the issue of the likelihood of Mr Lloyd re-offending, it would be reasonable for the Respondent to take notice of that report if Mr Lloyd were to reapply for an authority prior to the expiration of the remaining period of the bond.
The High Court decision of Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 provides a discussion of considerations held relevant by the High Court in consideration of the fitness of legal practitioners, in that case a Barrister. The case was considered and applied by the High Court in A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310 (4 February 2004) wherein the High Court stated:
In an appropriate case, where there is utility in so doing[15], the Supreme Court may make a declaration of professional misconduct either with or without an order removing the name of a practitioner from the roll........Thus not all cases of professional misconduct justify or require a conclusion that the name of a practitioner should be removed from the roll[19]. Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears[20].
The decision in Ziems' case
Where a practitioner appeals to this Court from an order of the Supreme Court removing him or her from the roll of practitioners, two potentially countervailing considerations arise. They were referred to by Fullagar J in Ziems v The Prothonotary of the Supreme Court of NSW[21], who said:
"[T]he appellant challenges what is not merely an exercise of discretion by the Supreme Court, but an exercise of discretion in a matter which is in a special sense the province of the Supreme Court as the highest court of New South Wales. It relates to the right of a man to practise in that court and in other courts of New South Wales over which that court exercises a supervisory jurisdiction in certain ways. On the other hand, the possibly disastrous consequences of disbarment to the individual concerned [are such that] a court to which an appeal comes as of right is bound to examine the whole position with meticulous care."
.......
...The case of Ziems provides an example of the need to examine "the whole position". There, a barrister had been convicted of manslaughter, and sentenced to imprisonment for two years. The Supreme Court concluded that the conviction and sentence constituted grounds in themselves for disbarring the appellant [22]. This Court declined to adopt that view, and considered the facts and circumstances of the case. It was a case where the particularity with which the facts were approached was important to a conclusion as to the barrister's fitness. He had been found guilty of unlawful homicide (in the form of manslaughter) and sentenced to imprisonment. Even when his offence was described with a little more detail, his position was not improved. He had been responsible for the death of a person while driving under the influence of alcohol. Yet, when the circumstances of the case were exposed, the picture changed materially. The appellant, while drinking at a hotel, had been attacked and beaten. He was seriously injured. A sergeant of police advised him to go quickly to hospital. The appellant asked the sergeant to drive him, but the sergeant went away leaving the appellant without assistance. The appellant then set out to drive himself to hospital, and, in the course of the journey, was involved in a fatal collision. The appellant was still in prison when his case was before this Court[23]. The order of the Supreme Court disbarring the appellant was set aside, and an order was made that he be suspended from practice during the remainder of his term of imprisonment.
In Ziems, the conduct of the practitioner which resulted in his conviction and prison sentence had nothing to do with his practice as a barrister. Fullagar J said[24]:
"Personal misconduct, as distinct from professional misconduct, may no doubt be a ground for disbarring, because it may show that the person guilty of it is not a fit and proper person to practise as a barrister ... But the whole approach of a court to a case of personal misconduct must surely be very different from its approach to a case of professional misconduct. Generally speaking, the latter must have a much more direct bearing on the question of a man's fitness to practise than the former."
The Tribunal stated in AJO v Director-General Department of Transport [2012] NSWADT 101 at paragraph 20:
In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest.
Having regard to the guidance provided by the authorities set out above, and the facts of this case, I find as follows. It is the Applicant's conviction for the offence of murder which must be considered by the Tribunal in assessing whether he is a fit and proper person to be authorised to drive a taxi cab, not the sentence imposed. Further, the Tribunal may have regard to the circumstances of the offence and what those circumstances indicate - in the present matter the circumstances include the Applicant's young age, his recent arrival in Australia and cultural dislocation and lack of family support at a young age; and that the offence occurred on a night out, while intoxicated and in the presence of many other young people - friends of the Applicant's or his co-accused and also of the victim. The offence did not occur in the context of the regulated activity - he was not a taxi driver nor was he performing any role of responsibility for public safety. The offence did involve serious violence, and as such concerns for public safety and the public interest must arise. The objects of the Act in s 4 set out above, include the encouragement of public passenger services that meet the reasonable expectations of the community for safe services. The Tribunal therefore must have regard to the object of encouraging safe public passenger services and the community's reasonable expectations for safe services.
Regard is also to be had to the Applicant's former good character and the evidence of rehabilitation. The Tribunal is to consider the likelihood of the Applicant reoffending - it is noted that the offending was a singular occurrence, at a young age, that the Applicant has demonstrated genuine remorse and responsibility for the offence. The offence occurred in the circumstances of a night out as detailed above. The Applicant has made significant efforts to rehabilitate himself while in prison, and was a model prisoner and avoided incurring any offences against prison rules/ discipline whilst in prison. All those considerations would appear to indicate that the chance of re-offending is low. The significant support and guidance offered by family members is also a changed circumstance since the offence, which indicates a reduction of risk.
The difficulty in the present case is that the psychiatric and professional reports before the Tribunal, evidencing professional assessments of rehabilitation and low risk of offending, are based on conduct in gaol, rather than conduct in the community, and the reports go to whether the Applicant is safe to be released to parole. There is no current psychiatric assessment, of current risk or lack thereof, now he is residing in the community. There is no current psychiatric assessment of his functioning in the community, which assists the Tribunal to form a conclusion that the Applicant is at low risk of violence/further offences.
The period where the Applicant has resided in the community is relatively short, although the Applicant continues to have significant family support. I find that it is relevant also that the Applicant would have family support and guidance in performing the regulated activity of taxi driver as his brothers are holders of taxi driver authorities.
The evidence does indicate that the Applicant continues to demonstrate his commitment to rehabilitation and integration with the community - he is undertaking study as an electrician at the present time, although he is finding it difficult to obtain a position as an apprentice. He acknowledges that his criminal record presents difficulties with obtaining employment.
The difficulty for the Tribunal is that the Applicant applies for an authority which sees him responsible for the safety of passengers - drivers have to deal with all manner of passenger behaviour, including occasional intoxication and aggression. This can be quite stressful. The Applicant had little life experience in this regard before his incarceration for the offence of murder, which occurred in the context of alcohol and social interactions between groups of young men
The Tribunal needs to be able to attest to the Applicant's fitness and propriety and repute, and also that he can drive the taxi cab in accordance with law and custom. Given the short period of residing in the community after release to parole on a serious offence, then to so attest, the Tribunal would need to be satisfied that the Applicant has continued the rehabilitation and good behaviour demonstrated during his prison term, in the community. The Tribunal considers that this would be able to be more clearly demonstrated after a further period of time in the community. The Tribunal does not consider, on the evidence in the present case, that the Applicant must serve the whole parole period before he can be considered to have demonstrated significant rehabilitation. The Tribunal is concerned of the risk to the public presented by the Applicant's conviction for an offence of murder, although the Tribunal has considered the circumstances of the offence and the evidence of good behaviour in gaol, and that the Applicant, when considered for release on parole, was considered low risk of re-offending.
The Tribunal considers that there needs to be a further period time where the Applicant is residing in the community with demonstrated good behaviour in the community, to evidence that the low risk is maintained while living outside of the custodial environment. The Tribunal considers that a current psychiatric report, evidencing that the Applicant is considered to continue to be low risk as he resides in the community, would be required. In the absence of this evidence and given the relatively recent release to the community, the Tribunal is unable to attest, on the evidence at this time, that the Applicant is a fit and proper person to be authorised to drive a taxi.
The Tribunal considers that, if after a further period of good behaviour in the community, the Applicant were to re-apply, and provide a current psychiatric assessment as well as other evidence indicating his rehabilitation, such as recent character references, and any other reports as to his rehabilitation in the community, then such an application may be able to be favourably considered. This would be a decision to be made at the time of any future application. However, for the reasons detailed above, at the current time, the Tribunal finds that the correct and preferable decision on the evidence and according to law is that the decision of the Respondent be affirmed.
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Decision last updated: 22 November 2012
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