Secretary, Department of Justice and Regulation v ZHANYU ZHONG

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0061

SECRETARY, DEPARTMENT OF JUSTICE AND REGULATION	Applicant
V
ZHANYU ZHONG	Respondent

S APCI 2016 0062

TAXI SERVICES COMMISSION	Applicant
V
ZHANYU ZHONG	Respondent

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JUDGES:	SANTAMARIA, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 November 2016
DATE OF JUDGMENT:	17 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 18
JUDGMENT APPEALED FROM:	[2016] VCAT 579 (Judge Jenkins)

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ADMINISTRATIVE LAW – Respondent required accreditation and working with children check assessment notice to drive buses and taxis – Respondent previously convicted of inciting murder of ex-de facto wife – Accreditation refused and negative working with children notice issued – Victorian Civil and Administrative Tribunal ordered respondent be accredited and issued with working with children assessment – Applicants sought leave to appeal – Appeal could only be brought on questions of law – Proposed grounds of appeal in effect seeking merits review – Reformulated grounds – Whether Tribunal’s findings open on the evidence – Findings open on the evidence – Leave to appeal refused – Victorian Civil and Administrative Tribunal Act 1998 s 148(1) – Working with Children Act 2005 s 13(2) – Transport Act ss 164, 169 –Victoria v Bacon [1998] 4 VR 269 referred to.

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APPEARANCES:	Counsel	Solicitors
For the Applicant in S APCI 2016 0061	Mr W Alstergren QC with Mr P Panayi	Department of Justice and Regulation
For the Applicant in S APCI 2016 0062	Mr W Alstergren QC with Mr P Panayi	Taxi Services Commission
For the Respondent	Mr Z Partos	Gary Prince

TABLE OF CONTENTS

Introduction
Background facts
The Legislative Framework
The first Tribunal hearing
Vice President’s Reasons in the second Tribunal hearing
Proposed Grounds of Appeal
Was the finding that there was no evidence of violence against the public open?
Was the finding that there was no evidence of anger management issues open?
Were the findings about public interest and risk to the safety of passengers open?

Conclusion

SANTAMARIA JA
FERGUSON JA
McLEISH JA:

Introduction

Some years ago, the respondent decided that he wanted to drive tourist buses for Chinese tourists. To do that he needed to be accredited to drive commercial passenger vehicles under the Transport Act 1983.[1] He was also required to apply for a working with children check to be carried out on him and an assessment notice to be given to him on completion of that check under the Working with Children Act 2005. In January 2009, the respondent made the necessary applications under the legislation. During the application processes, criminal record checks disclosed that he had been convicted of a serious criminal offence – inciting the murder of his

ex-de facto wife. Given the nature of the offence, the then Director of Public Transport was not permitted to accredit the respondent and the Secretary to the Department of Justice issued a negative notice under the Working with Children Act, meaning that he could not take up a position driving taxis or buses.
[1]This was the relevant legislation at the time. The current legislation dealing with accreditation is the Transport (Compliance and Miscellaneous) Act 1983.

The respondent applied to the Victorian Civil and Administrative Tribunal for review of the decision by the Secretary and for an order directing the Director to accredit him. A Vice President of the Tribunal found in the respondent’s favour. The Vice President ordered that the Taxi Services Commission (which has replaced the Director of Public Transport) issue driver accreditation to the respondent so that he may drive commercial passenger vehicles (which includes both buses and taxis). The Vice President also directed the Secretary to issue an assessment notice to the respondent.

Both the Taxi Services Commission and the Secretary (‘the applicants’) seek leave to appeal under s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998.[2] An appeal may only be brought on a question of law.[3] Leave may be granted if the proposed appeal has a real prospect of success[4] in the sense that it is not fanciful.[5]
[2]A Vice President having constituted the Tribunal.
[3]Victorian Civil and Administrative Tribunal Act 1998 s 148(1).
[4]Supreme Court Act 1958 s 14C; Metricon Homes Pty Ltd v Softley [2016] VSCA 60 [68].
[5]Kennedy v Shire of Campaspe [2015] VSCA 47 [13].

As the application for leave developed, the issue became whether certain findings were open on the evidence before the Tribunal. For the reasons which follow, the relevant findings were clearly open and we would refuse leave to appeal.

Background facts

In November 2001, the respondent was found guilty of incitement to murder.[6] The conviction resulted from some things that the respondent did between March and August 2000, including making an agreement with an undercover police officer to pay $10,000 to have his ex-de facto wife killed. The respondent was sentenced to six years imprisonment and was paroled after serving three and a half years of his sentence.
[6] Crimes Act 1958 s 321G.

The respondent was also convicted of recklessly causing injury to his ex-wife, in an incident on 14 June 1997 during which he lost his temper and began to choke her. The respondent was also reported to the police for a number of stalking offences and breaches of intervention orders in respect of his ex-wife between 1998 and 2001.

The respondent subsequently engaged in numerous efforts to clear his name, including an application for special leave to the High Court of Australia to appeal against his inciting murder conviction, and petitions for mercy to the Commonwealth Attorney-General and the United Nations. These attempts were unsuccessful.[7]

The legislative framework[8]

Working with Children Act

[7] AA v Taxi Services Commission [2016] VCAT 579 (‘Reasons’) [42].

[8] See Reasons [16]–[26].

Section 1(1) of the Working with Children Act states that the main purpose of that Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with or care for them have their suitability to do so checked by a government body. Part 2 establishes the process for working with children checks to be undertaken. As the respondent did, a person may apply for a working with children check to be carried out on him or her and an assessment notice to be given on completion of that check. Applications are then categorised. Relevantly, because of the type of offence committed by the respondent, his application was categorised as a ‘category 2 application.’[9]
[9]Working with Children Act s 13(1)(b).

Section 13(2) provides that the Secretary must refuse to give an assessment notice in a category 2 application unless satisfied that doing so would not pose an unjustifiable risk to the safety of children. The Secretary must have regard to various criteria when determining whether an applicant would pose an unjustifiable risk to children:

(a)the nature and gravity of the offence or alleged offence and its relevance to child-related work; and
(b)the period of time since the applicant committed, or allegedly committed, the offence; and
(c)whether a finding of guilt or a conviction was recorded for the offence or a charge for the offence is still pending; and
(d)the sentence imposed for the offence; and
(e) the ages of the applicant and of any victim at the time the applicant committed, or allegedly committed, the offence; and
(f)whether or not the conduct that constituted the offence or to which the charge relates has been decriminalised since the applicant committed, or allegedly committed, the offence; and
(g)the applicant’s behaviour since he or she committed, or allegedly committed, the offence; and
(h)the likelihood of future threat to a child caused by the applicant; and
(i)any information given by the applicant in, or in relation to, the application; and
(j)any other matter that the Secretary considers relevant to the application.[10]

[10]Working with Children Act ss 13(2)(a)–(j).

Section 17(3) provides that the Secretary must give a negative notice to an applicant who is refused an assessment notice.

An applicant who has been given a negative notice may apply to the Tribunal for review of the decision to give that notice.[11] That is what the respondent did. At the relevant time, the Victorian Civil and Administrative Tribunal Act provided that when conducting its review, the Tribunal must have regard to any matter that the Secretary may have regard to under s 13(2) of the Working with Children Act and whether, in all the circumstances, it is in the public interest to give an assessment notice.[12]
Transport Act
[11]Working with Children Act s 26(5)(b).
[12]Victorian Civil and Administrative Act s 39(2), sch 1 cl 102.
Section 169(2)(b) of the Transport Act provided for mandatory refusal of an application for accreditation in circumstances where a person had been convicted of an offence of the type committed by the respondent. He was then entitled to and did apply to the Tribunal for an order that the Director (now the Taxi Services Commission) issue the driver accreditation.[13] Section 169N(3) provided that the Tribunal must not make such an order unless:
[13]Transport Act s 169N(1)(a).

(a)the Tribunal was satisfied of the matters set out in s 169(1)(b); and
(b)the applicant for accreditation demonstrated that the issue of driver accreditation was appropriate having regard to the public care objective; and
(c)the Tribunal was satisfied that —
(i)the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to —
(A)the matters set out in s 169C(3)(b)(i) to (x); and
(B)any other matter that the Tribunal considered relevant to the application; and

(ii)in all the circumstances, it was in the public interest to make the order.

The matters set out in s 169(1)(b) required the respondent to be:

(i) technically competent and sufficiently fit and healthy to be able to provide the service; and
(ii) suitable in other respects to provide the service.

Under s 164(1) of the Transport Act, the public care objective was stated to be the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services:
(a) be provided –
(i) with safety; and
(ii) comfort, amenity and convenience -
to persons using the services and to other persons, particularly children and other vulnerable persons; and
(b) be carried out in a manner that is not fraudulent or dishonest.
The matters set out in s 169C(3)(b)(i) to (xi) were:
(i)the nature and gravity of the offence and its relevance to the service to be provided by the applicant; and
(ii)the period of time since the applicant committed the offence; and
(iii)whether a finding of guilt or conviction was recorded; and
(iv)the sentence imposed for the offence; and
(v)the age of the applicant when the offence was committed; and
(vi)in relation to any sexual offence, the age of any victim; and
(vii)whether or not the conduct that constituted the offence had been decriminalised since the offence was committed; and
(viii)the applicant’s behaviour since committing the offence; and
(ix)the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person; and
(x)any information given by the applicant; and
(xi) any other matter the Director considered relevant.
The first Tribunal hearing

Both of the respondent’s applications were initially refused by the Tribunal. He successfully appealed to the Trial Division and the applications were remitted for rehearing before a differently constituted Tribunal. It is the orders and directions made after the second Tribunal hearing that are the subject of the application for leave to appeal.

Vice President’s reasons in the second Tribunal hearing

The Vice President set out the nature of the applications, the background to them and the relevant legislative provisions.

The Vice President then summarised the evidence, the bulk of which was expert psychiatric evidence.[14] The Vice President included some analysis of aspects of the expert evidence. For example, the Vice President noted that some of the expert reports were very dated but this gave her the opportunity to consider the opinions provided with retrospection.[15] Some of the reports noted that the respondent had little insight, was prone to anger and had a tendency to externalise responsibility for his problems, including through litigation.[16] The psychiatric experts disagreed on whether the respondent was more likely to engage in violence if his various legal challenges failed.[17] At the time of the reports, they had not been concluded. One expert specifically observed that he believed the respondent was capable, with appropriate support, of being employed as a bus driver.[18] The Vice President noted that in the time which had passed since these assessments, the respondent had failed in his legal challenges, but the concerns about him posing an increased risk to himself and others had not come to fruition. Her Honour commented that there was no evidence that the respondent had any anger or impulse management issues at the time of the trial before her.[19] We will set out in more detail below the Vice President’s reasons about anger management.[20]
[14] Reasons [27]–[55].
[15]Reasons [28].
[16] Reasons [30], [33]–[35].
[17] Reasons [31], [35].
[18] Reasons [40].
[19] Reasons [41]–[43].
[20]See [69]–[71] below.

The Vice President then considered more recent psychiatric evidence, including a report and addendum by Dr Remy Glowinski, a consultant psychiatrist. The report raised a number of concerns about the respondent’s psychiatric health, including evidence that he had engaged in self-destructive behaviour, his continued pattern of blaming others for his own problems, his ‘rigid and inflexible approach to perceived injustices’ and his mistrust of authority figures. Dr Glowinski considered that the respondent had a significant personality disorder, most likely with narcissistic and paranoid elements.[21]
[21] Reasons [45].

The respondent provided a report from a consultant psychiatrist, Dr Byron Rigby. Dr Rigby described the respondent as being highly transparent, with qualities of straightforwardness, genuineness and candidness. He considered the respondent’s manner to be calm, logical and gentle at all times. Dr Rigby accepted that the respondent had ‘reduced insight’, but felt that his character and psychiatric stability were within the range of common levels found in the general population, with no evidence of a paranoid personality disorder. Dr Rigby considered such a diagnosis to be a serious error, and stated there was no greater risk in the respondent holding a bus driver’s licence than there would be in any other eligible person.[22] The respondent also relied on evidence from a Dr Roger Chau, to which the Vice President attributed no weight, as she considered his assessment of the respondent was superficial at best.[23] We will return to consider the Vice President’s reasons about the respondent’s mental health and the experts’ opinions in more detail below.[24]
[22] Reasons [48]–[52].
[23] Reasons [55].
[24]See [78]–[79] below.

The Vice President then summarised the evidence about the respondent’s conduct towards his ex-wife, including the respondent’s own evidence.[25] The Vice President provided an overview of police records concerning the incident on

14 June 1997 when the respondent choked his ex-wife, noting that the respondent maintained that his ex-wife had assaulted him before the incident.[26] We will discuss how the Vice President dealt with this in greater detail below.[27] The Vice President also noted a later incident on 20 June 1997 when the respondent allegedly broke into the home he had previously shared with his ex-wife and threatened her with a knife. The Vice President pointed out that although the respondent was charged with assault with a weapon, he was never convicted of this offence as it was struck out.[28] Her Honour also noted police records concerning the respondent stalking his ex-wife in March 1998 and breaching an intervention order taken out against him, conduct which he justified as being out of desperation to see his daughter, and a claim that he was helping his ex-wife, who had told him to ignore the intervention order.[29]
[25] Reasons [56]–[74].
[26] Reasons [59]–[64].
[27]See [58]–[59] below.
[28] Reasons [65]–[67].
[29] Reasons [68]–[70].

The Vice President then outlined the evidence about the circumstances surrounding the respondent’s conviction for inciting murder.[30] The respondent’s evidence was that the undercover police operative ‘encouraged and trapped’ him into discussing the killing of his ex-wife, and that he only intended to discuss the murder as a ‘fantasy.’[31] Her Honour noted Flatman J’s description of the offending in his sentencing remarks, including that the respondent demonstrated hostility towards his ex-wife, felt that he had ‘no choice’ but to kill her, and took numerous practical steps to arrange her killing, including considering methods to conceal the murder, such as making it appear that the woman had committed suicide, or that she had been raped and murdered by a stranger.[32]
[30] Reasons [71]–[74].
[31] Reasons [73].
[32] Reasons [74].

Having completed her summary and general review of the evidence, the Vice President then considered the respondent’s application for an order that the Commission issue driver accreditation to him under the Transport Act. The Vice President first turned her attention to the respondent’s competence to provide the service.[33] Her Honour noted that the parties agreed that there was nothing before the Tribunal which placed the respondent’s technical competence to operate a commercial passenger vehicle in issue, and that this issue concerned the relevance of the respondent’s mental health to the requirement that he be ‘sufficiently fit and healthy’ to provide the service.[34] Her Honour noted that the respondent strongly disagreed with Dr Glowinksi’s assessment that he had a paranoid personality disorder.[35] The Vice President accepted that the respondent had ‘some paranoid personality traits,’[36] but considered that these traits arose exclusively in connection with his perceived mistreatment at the hands of the criminal justice system.[37]
[33] Reasons [75]–[86]. Transport Act s169(1)(b)(i).
[34] Reasons [75]–[76].
[35] Reasons [79].
[36] Reasons [82].
[37] Reasons [84].

The Vice President noted that the balance of psychiatric evidence was that the respondent did not have a diagnosable personality disorder[38], and found that there was no compelling evidence that his psychiatric state would have any adverse impact on his ability to drive commercial passenger vehicles, or would cause any distress, danger or discomfort to a passenger in his vehicle.[39] Her Honour considered that this finding was apposite to the requirement not to discriminate against a person who has previously suffered a disability.[40]
[38] Reasons [81].
[39] Reasons [84], [86].
[40] Reasons [85]; FC v Director of Transport [2010] VCAT 437 [118].

The Vice President then considered whether the respondent was suitable in other respects to provide the service.[41] Her Honour noted that this requirement essentially involved the same scope of inquiry as a fit and proper person test.[42] As such, the test involved a wide scope for judgment and rejection of the application.[43] Her Honour accepted that actions taken in a private capacity may support a finding that a person is not a fit and proper person, but rejected the Commission’s submission that the respondent’s history of offending meant that he was not a fit and proper person.[44] Her Honour considered that accreditation to drive a commercial vehicle required a lower standard than that which would be expected in an industry where a high level of trust and responsibility was expected, such as the legal or medical professions.[45]
[41] Reasons [87]–[110]. Transport Act s 169(1)(b)(ii).
[42] Reasons [89]–[90], Director of Public Transport v XFJ [2011] VSCA 302 (‘XFJ’).
[43] Reasons [91]; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380.
[44] Reasons [94].
[45] Reasons [94].

The Vice President considered that the cases referred to by the Commission to suggest the respondent was not a fit and proper person were readily distinguishable from the case before her.[46] For instance, her Honour found that the respondent’s anger issues were distinguishable from those described in El Sayed v Director of Public Transport[47] (where accreditation was refused to a driver who was found guilty of assault after spitting in the face of a post-office worker on the basis that this indicated he may react inappropriately to difficult passengers). In her Honour’s view, the respondent had given frank evidence that he was only angry at specific police officers and a judge who he believed had conspired against him. The respondent claimed that he was ‘no longer angry’ with his ex-wife.[48] Her Honour also stated that this case was distinguishable from El Sayed as 15 years had passed since the respondent’s last offending whereas in El Sayed, the conduct occurred only 18 months before the hearing of the application.[49]
[46] Reasons [95].
[47] [2011] VCAT 367 (‘El Sayed’).
[48] Reasons [96]–[98].
[49] Reasons [101].

The Vice President noted that while public confidence and community expectations may be taken into account when determining the suitability of an applicant, tribunals are not bound to consider them.[50] Her Honour stated that these concepts have been described as ‘vague and subjective,’[51] and cautioned that the Tribunal must be careful not to endorse such a process, as public expectations are often easily swayed and formed without full knowledge of the facts and circumstances.[52]
[50] Reasons [102].
[51] XFJ [2012] VSC 319 [105]–[106].
[52] Reasons [103].

The Vice President also stated that she believed the Commission’s submissions on issues such as the respondent’s likely reluctance to submit to the authority of the regulator[53] and belief in a conspiracy against him[54] were too broad and lacked connection to his suitability to drive commercial passenger vehicles. She considered that the respondent’s belief in conspiracy theories about how he came to be convicted were ‘not on par’ with the cases relied on by the Commission.[55]
[53] Reasons [104].
[54] Reasons [105].
[55]Reasons [105]–[109], citing O’Hara v Victorian Institute of Teaching [2007] VCAT 1962; Orchard v Medical Board of Australia [2013] VCAT 1729.

The Vice President then considered the public care objective in s 164 of the Transport Act. As noted previously, s 164 relevantly defined that objective as being that services operated by drivers of commercial vehicles be provided with safety, comfort, amenity and convenience, particularly to children and other vulnerable persons.[56] She accepted that this concept encompassed mental as well as physical safety, but emphasised that this safety must be assessed by reference to the reasonable passenger.[57] Her Honour considered that this case was analogous to that of FC v Director of Public Transport,[58] where a reformed alcoholic who had been convicted of stealing women’s underwear from private property, resisting arrest and making threats to kill the arresting officers sought accreditation under the Transport Act. In that case, the Tribunal found that a reasonable passenger would allow for the possibility that failures can be put behind a person, and would not be uncomfortable with the service being provided.[59] The Vice President considered that the respondent’s case was analogous to both that case and that of a man who had killed his domestic partner 20 years earlier,[60] as passengers would be able to distinguish the provision of the service from the respondent’s offending, and would appreciate that he had been rehabilitated.[61]
[56] Reasons [111]–[119].
[57] Reasons [113]–[115].
[58]FC v Director of Public Transport [2010] VCAT 437.
[59] Ibid [22].
[60] XFJ [2008] VCAT 2303.
[61] Reasons [116]–[117].

The Vice President then considered the various factors under s 169C(3)(b) of the Transport Act that must be taken into account.[62]

Nature and gravity of the offence and relevance to services provided by the respondent (s 169(3)(b)(i))

[62] Reasons [121]. See [15] above.

In considering this factor, her Honour looked to the sentencing remarks made by the trial judge in relation to the respondent’s conviction for inciting murder. Her Honour noted several matters which she considered weighed in the respondent’s favour, including his acknowledgement that his actions were wrong, his attempts to establish amicable dealings with his ex-wife, his devotion to his daughter, his naivety and depression, and questions as to whether he had the financial means to carry out the plan.[63] Her Honour considered that the seriousness of the offending was ‘somewhat tempered’ by the surrounding circumstances.[64] She concluded that the offences of incitement to murder and stalking were completely remote from any situation the respondent would encounter driving taxis or buses.[65] She accepted that the respondent’s violent assault of his wife on 14 June 1997 may have some relevance, but concluded that the offending was precipitated by a ‘unique set of circumstances’ which were more significant than a ‘simple insult or disrespectful comment from a passenger on a bus.’[66] She reiterated the length of time since the commission of the offence, and noted that there was no evidence the respondent had any violent history towards members of the public generally.[67]

The period of time since the respondent committed the offence (s 169(3)(b)(ii))

[63] Reasons [123].

[64] Reasons [124].

[65] Reasons [127]–[128].

[66] Reasons [129]–[130].

[67] Reasons [131].

The Vice President noted that many years had passed since the original offending and the respondent’s release on parole, and that he had not committed any offences since that time. She considered his risk of re-offending to be low.[68]

Whether a finding of guilt or conviction was recorded and the sentence imposed (s 169(3)(b)(iii), (iv))

[68] Reasons [132]–[134].

Her Honour noted that the respondent was convicted and sentenced to six years of imprisonment with a three and a half year non-parole period. The Vice President stated that this was well below the maximum sentence available (of life imprisonment), an acknowledgement that the offending was serious but not in the high range.[69]

Age of the applicant and victim and whether the conduct has been decriminalised (s 169(3)(b)(v),(vi), (vii))

[69] Reasons [135].

The respondent was 45 years of age at the time of his conviction, and 59 years of age at the time of his hearing before the Vice President. She noted that the respondent was a mature adult who clearly understood his legal obligations under the criminal law at the time the offence took place.[70] The Vice President noted that the conduct had not subsequently been decriminalised[71] and that the age of the victim was not a relevant consideration as the offences were not sexual offences.[72]

The applicant’s behaviour since committing the offence and likelihood of committing another such offence, in particular any future threat to children or other vulnerable persons(s 169(3)(b)(viii),(ix))

[70] Reasons [136].

[71] Reasons [138].

[72]A relevant factor under Transport Act ss 169(3)(b)(vi).

The Vice President considered the respondent to have a good record since the commission of the offence.[73] She rejected submissions that this record should be given little weight on the basis that it may reflect a lack of provocative circumstances and due to the fact that the respondent had not been driving buses or taxis in this period.[74] The Vice President also noted that the respondent had successfully discharged his parole requirements and had had no subsequent involvement with the criminal justice system. [75]
[73] Reasons [139].
[74] Reasons [141]–[142].
[75] Reasons [139].

The Vice President acknowledged that the respondent had not accepted responsibility, expressed remorse or undergone rehabilitation. However, she did not consider this to be relevant to assessment of his behaviour since the offence. Rather, the Vice President considered these matters highly relevant to the respondent’s insight and lack of remorse which she took into account in assessing the likelihood that he would offend in the future.[76] She noted that in fact, the respondent had submitted a document to the Tribunal which specifically stated that he had no remorse and considered himself to be a victim of police corruption.[77] Her Honour accepted that a person cannot be remorseful for a crime they believe they did not commit.[78] However, she also noted that the respondent had expressed an understanding of the seriousness of inciting murder,[79] and had expressed shame for choking his wife (notwithstanding that he maintained he was ‘provoked’ into doing so).[80] The Vice President considered that the respondent had moved on from the ‘fraught domestic relationship,’ and that his likelihood of reoffending was ‘virtually nil.’[81] Her Honour did not consider that there was any connection between the offending and children or vulnerable persons, as it was an offence which occurred against another adult in the context of a personal relationship.[82]

Any other information given by the respondent or any other matter considered relevant (s 169(3)(b)(x), (xi))

[76] Reasons [143].

[77] Reasons [150]–[151].

[78] Reasons [153].

[79] Reasons [154].

[80] Reasons [155].

[81] Reasons [156].

[82] Reasons [145].

The Vice President noted that the respondent was participating in groups including Dads in Distress and One in Three, and that she believed these organisations provided some comfort to the respondent but had no bearing on the factors which the Tribunal was required to take into account.[83]
[83] Reasons [157]–[159]

Having considered all of these factors and concluding that accreditation of the respondent would not pose an unjustifiable risk, the Vice President stated that it was still necessary to consider the public interest. She noted that the term ‘public interest’ is broad and discretionary.[84] The Vice President stated that not only had she found the respondent would not pose an unjustifiable risk,[85] but there were numerous factors in the public interest which weighed in favour of granting him accreditation, including his right to engage in work in his chosen field of employment,[86] encouraging people to be worthy citizens, and facilitating the rehabilitation of offenders.[87] Her Honour considered that as such, it would be unusual to deny the respondent accreditation.[88]
[84] Reasons [162]; ICM Agriculture Pty Ltd v The Commonwealth 240 CLR 140, 162.
[85] Reasons [161]
[86] Reasons [164]; ZZ v Secretary, Department of Justice [2013] VSC 267, [203].
[87] Reasons [165]; FC v Director of Public Transport [2010] VCAT 437.
[88] Reasons [168].

The Vice President concluded that the Commission would be directed to issue the respondent with driver accreditation.

The Vice President then moved to the application by the respondent for review of the Secretary’s decision to refuse to issue an assessment notice to him under the Working with Children Act.[89]The Vice President noted that under the legislation the application for an assessment notice would not pose an ‘unjustifiable risk’ to the safety of children.[90] She observed that the matters set out in s 169C(b) of the Transport Act are virtually identical to those listed in s 13(2) of the Working with Children Act and that therefore her earlier analysis of those matters applied.[91]She included some additional observations pertinent to the application for an assessment notice. We will set out a summary of those that are relevant to the application for leave to appeal.
[89]Reasons [170]–[228].
[90]Reasons [170].
[91]Reasons [170].

The Vice President noted that approximately 15 years had elapsed since the respondent had offended which was a very significant period of time and weighed strongly in favour of the respondent.[92] Her Honour considered that there was no relevant link between the offence and child-related work.[93]
[92] Reasons [178].
[93] Reasons [174], [181]–[182].

The Vice President particularly noted that the respondent had been paroled at the earliest opportunity,[94] had engaged in charity work[95] and received counselling.[96] She rejected the submission that she should consider that the respondent had not demonstrated child related skills as part of the assessment of his behaviour.[97]
[94] Reasons [186]–[187].
[95] Reasons [195]–[199]
[96] Reasons [200]–[201].
[97] Reasons [189].

The Vice President did not consider remarks provided by one of the respondent’s referees that he had a bad temper to be fatal to his application. When asked why he had formed this view, the referee outlined an incident when the respondent was driving a taxi and his passenger did not want to pay his fare. He described the respondent as fighting the passenger. The Vice President noted that the referee was not in the taxi at the time and that he was referring to what the respondent had told him about the incident.[98]
[98] Reasons [205]–[206].

The Vice President referred again to the respondent’s lack of insight and remorse but observed that inciting the murder of his ex-wife was in the context of a relationship breakdown, that the offence was committed 16 years earlier and that the respondent’s lack of remorse did not translate to any discernible threat of future violence.[99] In this regard, and observing the contrary evidence of Dr Glowinski, the Vice President noted that the experts largely agreed that the risk of repeat violence was minimal. She accepted that conclusion.[100]
[99]Reasons [212].
[100]Reasons [213]–[215].

In concluding her assessment, the Vice President observed that she was required to assess whether the respondent posed an ‘unjustifiable risk’, not ‘no risk.’[101] Her Honour considered that the respondent posed no greater risk than an ordinary person who has not committed any offending.[102]
[101] Reasons, [216].
[102] Reasons [218].

The Vice President concluded that she did not consider the respondent to be an unjustifiable risk to the safety of children.[103] In this regard, she reiterated that she did not consider there to be any concern regarding the respondent’s anger management or control issues.[104] She stated that she had cautiously concluded that the respondent’s lack of remorse and lack of insight did not translate to any significant threat of violence and presented an even lesser risk to children.[105]
[103]Reasons [221].
[104]Reasons [220].
[105]Reasons [220].

Having reached that view, the Vice President did not consider that there was any unusual matter to warrant a finding that it was not in the public interest to grant the respondent a working with children assessment notice.[106] She also observed that there were not many employment opportunities for him. There was a risk that absent employment he may become socially isolated and welfare dependent; working as a bus driver would enhance his rehabilitation and allow him to make a positive contribution to the community.[107]
[106]Reasons [225].
[107]Reasons [226].

In all the circumstances, the Vice President considered that it was in the public interest to grant the respondent an assessment notice.[108]
[108] Reasons [227].

Drawing her conclusions together about the applications under the Working with Children Act and the Transport Act, she stated:

I have reviewed the material before me in light of each of the statutory tests and ultimately I have formed the view, on each occasion, that the Applicant has satisfied the applicable test.
I acknowledge that the most concerning aspect of the Applicant’s application is his express lack of remorse for inciting the murder of his wife. He does not agree that he is criminally liable. That is the position that the Applicant has consistently maintained since his arrest in 2001 and until now. I have no doubt that the Applicant will continue to maintain his innocence and justify, perhaps primarily to himself, how it is that he came to be convicted for such a serious crime.
Although there is no shortage of authorities in which a lack of remorse has caused the Tribunal to find that a person is an unjustifiable risk, each case must be considered on its merits. Lack of remorse is a highly relevant consideration when determining whether there is unjustifiable risk of repeat or similar offending, but it is not the only factor.
I have given significant weight to the passage of time since the offending took place, and the clean record that the Applicant has maintained during that period. The Applicant has had no involvement with the law other than his failed legal appeals – which he is entitled to pursue. The clean record is also inconsistent with the suggestion of continuing anger management problems.
The preponderance of expert evidence is also in the Applicant’s favour. Dr Carroll’s report of June 2004 suggested that the Applicant was low risk, but that the risk might increase if the Applicant failed in his quest to clear his name. It is now 12 years since Dr Carroll’s report and there have been multiple failed appeals and further protestations of innocence. Nonetheless, the potential risk flagged by Dr Carroll has not eventuated. Nor did the Applicant develop a depressive illness.
Dr Remy Glowinski’s 2015 report suggests there might be future risk of violence but he considered it more likely that any violence committed would be towards individuals well known to him, and that there was ‘little obvious connection between these factors and a risk of violence if working as a taxi or bus driver’. I have considered Dr Glowinski’s suggestion that the Applicant might react from a slight from a passenger, but I have concluded that the Applicant does not have any anger management issue, and that the Applicant’s violent reaction in the past, resulting in the offence of ‘recklessly cause injury’ arose from circumstances which are not analogous to a slight from a passenger.
Dr Byron Rigby’s 2015 [report] also concludes that the Applicant is of no greater risk than would be estimated in any other eligible person if he was granted a licence. I concur with that view. I also do not consider the Applicant to have any significant risk of responding violently to a slight or other provocation from a child.[109]

[109]Reasons [229]–[235] (citations omitted).

The Vice President ordered the Commission to issue driver accreditation to the respondent, and the Secretary to issue the respondent with an assessment notice.

Proposed Grounds of Appeal

The applicants sought to rely on six proposed grounds of appeal which are substantially the same in respect of each application. They seek orders that the Tribunal’s decision be set aside and substituted with orders that the respondent’s applications be dismissed and that he be disqualified from making further applications for five years.

The proposed grounds in the Secretary’s application are set out in the following terms:

Ground 1: The Vice President made a jurisdictional error when finding that it is in the public interest for the respondent to be granted an assessment notice pursuant to cl 201 of Sch 1 to the Victorian Civil and Administrative Tribunal Act 1998.[110]
[110]In the Commission’s application reference is made to s 169N(3) of the Transport Act.
Ground 2: The Vice President made a jurisdictional error in finding that the respondent did not pose an unjustifiable risk to the safety of children.[111]
[111]In the Commission’s application reference is made to the safety of users of the services rather than to the safety of children.
Ground 3: The Vice President made a jurisdictional error in refusing or failing to take into account the severity of the evidence against the granting of an assessment notice pursuant to s 13(2) of The Working with Children Act 2005 in finding:
(a) that the respondent does not have anger management issues;
(b)that the respondent poses no greater risk to children than would be estimated in any eligible person if he was granted an assessment notice;
(c)that there was not any unusual matter in the respondent’s application to warrant a finding that it was not in the public interest to grant the respondent a working with children assessment notice;
(d)that there was no evidence that the respondent was a risk of harming children as such;
(e)that the respondent had expressed shame at the facts and circumstances giving rise to his convictions;
(f)that the respondent had satisfied the applicable test to overcome the requirements of s 13(2) of The Working with Children Act 2005.[112]
[112]In the Commission’s application reference is made to s 169N(3) of the Transport Act in place of s 13(2) of the Working with Children Act; in para (b) the reference to children is omitted and reference is made to the granting of a licence rather than an assessment notice; at the end of para (c), the words ‘or driver accreditation’ are added.

Ground 4: In the alternative, the learned Vice President made a jurisdictional error and failed to give adequate reasons when failing to properly consider the:
(a)expert evidence in cross-examination that the respondent had or may have anger management issues;
(b)expert evidence in cross-examination that the respondent had or may have a delusional disorder;
(c)expert evidence in cross-examination that the respondent had or may have a paranoid personality disorder.

Ground 5: The Vice President erred in failing to consider the severity of the evidence of a lack of remorse by the respondent for inciting the murder of his former wife.
Ground 6: The Vice President erred in failing to consider other information relevant to the respondent including the evidence that he had previously assaulted passengers in a taxi he was driving pursuant to s 13(2) of The Working with Children Act 2005.[113]

[113]In the Commission’s application reference is made to s 169C(3)(b)(x)-(xi) of the Transport Act.

The questions of law in the Secretary’s application are stated to be:

1.Whether the Vice President made a jurisdictional error when finding that it is in the public interest for the respondent to be granted a driver accreditation pursuant to cl 201 of sthe dch 1 to the Victorian Civil and Administrative Tribunal Act.
2.Whether the Vice President made a jurisdictional error in finding that the respondent did not pose an unjustifiable risk to the safety of children.
3.Whether the Vice President made a jurisdictional error in finding or refusing or failing to take into account the severity of the evidence against the granting of an assessment notice pursuant to s 13(2) of the Working with Children Act 2005 in finding:
(a)that the respondent does not have anger management issues;
(b)that the respondent poses no greater risk to children than would be estimated in any eligible person if he was granted an assessment notice;
(c)that there was not any unusual matter in the respondent’s application to warrant a finding that it was not in the public interest to grant the respondent a working with Children Assessment Notice;
(d)that there was no evidence that the respondent was a risk of harming children as such;
(e)that the respondent had expressed shame at the facts and circumstances giving rise to his convictions;
(e)that the respondent had satisfied the applicable test to overcome the requirements of s 13(2) of the Working with Children Act 2005.

4.Whether in the alternative, the Vice President made a jurisdictional error and failed to give adequate reasons when failing to consider properly the:
(a)expert evidence in cross-examination that the respondent had or may have anger management issues;
(b)expert evidence in cross-examination that the respondent had or may have a delusional disorder;
(c)expert evidence in cross-examination that the respondent had or may have a paranoid personality disorder.

5.Whether the Vice President erred in failing to consider the severity of the evidence of a lack of remorse by the respondent for inciting the murder of his former wife.
6.Whether the Vice President erred in failing to consider other information pursuant to s 13(2) of the Working with Children Act 2005 and relevant to the respondent including the evidence that the Respondent had previously assaulted passengers in a taxi he was driving.[114]

[114]The stated questions of law are in substantially the same form in the Commission’s application save for references to the Transport Act instead of the Working with Children Act and other incidental differences.

As noted above, under s 148(1) of the Victorian Civil and Administrative Tribunal Act, an appeal from the Tribunal may only be brought on a question of law. The proposed grounds of appeal and the ‘questions of law’ do not satisfy the requirement specified in s 148(1) of an appeal in respect of questions of law. The references to ‘jurisdictional error’ are apt to confuse, because, while the grounds address factual matters, they do not specify any jurisdictional fact about which the Tribunal did not satisfy itself before making its decision, or indicate how the errors alleged otherwise go to the Tribunal’s jurisdiction. In reality, the proposed grounds are directed to errors of fact, not even errors of law. The main theme throughout the proposed grounds is that they are addressed to findings of fact and assert failure by the Vice President to consider evidence, such that her Honour erred. In truth, the applicants seek what is not available; that is, review of the Tribunal’s findings of fact. In this regard, on the hearing of the leave application, senior counsel for the applicants conceded that the Vice President had not misconstrued the legislation and that proposed ground 1 of the appeal was not directed to that type of argument. Proposed ground 5 and the fifth ‘question of law’ starkly illustrate the defects in the application. In this connection, the words of Phillips JA in Victoria v Bacon[115] are apposite:

The difficulty and uncertainty inherent in this form of stating grounds of appeal was explored by Ryan J in AustralianTelecommunications Corporation v Lambroglou,[116] a judgment which, if I may say so, would repay study by all those undertaking to draft a notice of appeal (as also the judgment of Brooking J in Motor Accidents Board v Coutts,[117] in which the statement of grounds (which were grounds of review) was criticised after a most comprehensive review of the Victorian cases; see also his Honour’s criticism of the grounds as stated in Victorian Workcover Authority v C.E Heath Underwriting & Insurance Pty Ltd.[118]).
More specifically, as Ryan J pointed out in Lambroglou, to allege error in the drawing of some particular conclusion (or as in that case to pose the question whether error lay in the drawing of that conclusion) will often simply cloak what it is sought to put in issue. That the judge erred in making some particular finding, if of fact, may mean, inter alia, that there was no evidence at all to support that finding, or that the primary facts were not proved from which an inference was drawn, or that though there was evidence of those primary facts that evidence ought to have been rejected, or that the inference, though open, ought not to have been drawn. Where the finding under attack is in truth of mixed fact and law, the allegation of error in arriving at the stated conclusion may conceal a contention that the judge misunderstood the law or, though properly understanding the principles, misapplied them; and where as here a statute is involved, the possibilities are often multiplied. This notice of appeal did nothing at all to resolve those difficulties.
Indeed, what Ryan J dubbed in Lambroglou at 529 ‘the irritating tendentious formulary which recurs in the prefatory words’ of these so-called grounds of appeal is such as to suggest that the notice of appeal was framed in ignorance of the provisions of s 130 of the Act under which the right of appeal arises [only on a question of law].[119]

[115][1998] 4 VR 269.

[116](1990) 12 AAR 515.

[117][1984] VR 790, 794–8.

[118](1994) 7 VAR 1, 7–8.

[119][1998] 4 VR 269, 285–6. See also Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540 544–5 [13]–[18].

On the hearing of the applications for leave to appeal, senior counsel for the applicants re-formulated the proposed grounds into questions of law based on the contention that the following findings of the Vice President were not open on the evidence:

(a) that there was no evidence of violence on the part of the respondent;

(b) that there was no evidence that the respondent had anger management issues;

(c) that it would not:

(i) be against the public interest to give an assessment notice and to issue driver accreditation; and

(ii) pose an unjustifiable risk to the safety of passengers.

The respondent did not object to the applications for leave proceeding on that basis.

We will deal in turn with whether each of the findings in (a)–(c) was open on the evidence. Whether they were or not is to be determined on the evidence and inferences most favourable to the respondent.[120]
[120]ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447, 465 [69].

Was the finding that there was no evidence of violence against the public open?

In the part of her reasons describing the respondent’s evidence, the Vice President referred to his conviction for recklessly causing injury arising out of the two domestic incidents which took place in June 1997. The Vice President said:

The first incident occurred on 14 June 1997. The Police Records state:
Charges: Intentionally or Recklessly Cause Injury, Breach of Intervention Order.
The victim attended at police station making a complaint of assault. The applicant is her defacto. The applicant and the victim had a verbal dispute about child and living arrangements. The applicant lost control and pushed victim onto floor and choked victim on throat with both hands. The applicant also pulled the victim’s arm up with her back causing her pain. The victim was conveyed to hospital with grazing and bruising to the throat and bruising to her arm and right leg.[121]

[121]Reasons [59].

The Vice President referred to this incident later in her reasons when she was considering the nature and gravity of the offence and its relevance to the services to be provided by the respondent. She said:

In my view, it is necessary to distinguish the offences. The offence of incitement to murder, and the complex relationship breakdown which accompanied that offence, is completely remote from any situation the Applicant is going to encounter driving buses or taxis. Similarly, the offences of stalking and breach of intervention orders have no nexus to driving taxis or buses.
The offence which may have some relevance is the assault against the Applicant’s wife on 14 June 1997, described above. In this situation the Applicant admits he lost his temper and reacted violently. The Applicant may well have the misfortune of meeting demanding or violent passengers while driving. To this end, it is arguable that the Applicant might respond in a similarly violent manner towards such passengers. Dr Glowinski flagged this risk in his report where he stated that ‘there are scenarios which can be plausibly considered in which AA might react to a perceived slight from a passenger’.
On closer analysis, it is clear that the recklessly cause injury offence was precipitated by a unique set of circumstances beyond a mere slight from his wife. As I have set out above, the Applicant had an argument with his wife about babysitting arrangements. The Applicant was not violent to his wife on the first occasion. The police attended and told the Applicant to return his key and leave the house, effectively making him homeless. He then returned to the house after wandering in the streets aimlessly for a number of hours. A further argument ensued, on this occasion the Applicant did respond violently. The events leading up to the Applicant, in his own words, losing control, are much more significant and cumulative than a simple insult or disrespectful comment from a passenger on a bus.
I also note that the recklessly cause injury offence occurred over 18 years ago, and once again, in the context of a domestic relationship. In a taxi or bus driving situation, passengers would usually be strangers and any interactions would be superficial and transient. I have no evidence before me to suggest that the Applicant has any violent history towards members of the public generally.[122]

[122]Reasons [128]–[131] (citation omitted).

In dealing with the Working with Children Act aspects of the case, the Vice President said:

The experts largely agree that the risk of any repeat of violence is minimal. Dr Glowinski stated that ‘the more likely scenario in which the Applicant might commit violence involve individuals well-known to him’. Furthermore Dr Glowinski did not ‘see any evidence to lead me to consider a future scenario in which the Applicant might present a risk to a child passenger’. I concur with that opinion. The other psychological and psychiatric evidence is all in the Applicant’s favour in that regard.
I note Dr Glowinski’s comment that there are ‘scenarios that can be plausibly considered in which the Applicant might react to a perceived slight from a passenger’. I do not consider that risk to be any greater for the Applicant than it would be for any other ordinary person in the community. I have discussed anger management above, and I do not consider the Applicant to have any anger management issues. Nor do I consider that the Applicant’s paranoid personality traits would translate into violence, let alone violence against a child.[123]

[123]Reasons [213]–[214] (citations omitted).

Finally, on the subject of violence, the Vice President concluded:

Dr Remy Glowinski’s 2015 report suggests there might be future risk of violence but he considered it more likely that any violence committed would be towards individuals well known to him, and that there was ‘little obvious connection between these factors and a risk of violence if working as a taxi or bus driver’. I have considered Dr Glowinski’s suggestion that the Applicant might react from a slight from a passenger, but I have concluded that the Applicant does not have any anger management issue, and that the Applicant’s violent reaction in the past, resulting in the offence of ‘recklessly cause injury’ arose from circumstances which are not analogous to a slight from a passenger.[124]

[124]Reasons [234] (citation omitted).

The applicants seek to attack the finding that there was no evidence before the Tribunal that the respondent had any violent history towards members of the public generally. In this regard, they point to evidence about an altercation that the respondent had with a taxi passenger who did not pay him. The applicants relied on a record of a telephone conversation which took place in August 2009 between a Department of Justice employee who spoke to one of the respondent’s referees as part of the working with children check. Part of the note of the conversation records:

Have you observed the applicant working with children?
I haven’t seen him working with children. I have seen him with his own daughter. I think a couple of times, long time ago.
What was the applicant doing?
I can’t remember what he was doing. It was 10 years ago. He is generally alright but he has a bad temper.
Why do you say that he has a bad temper?
He drove taxi for many years. There was someone who didn’t want to give him money and wanted to get away, and he fought him. But normally he is okay.
Do you believe the applicant is suitable to work with children?
He will be alright working with children.
He had problems with adults, (because he is) hot tempered but normally he is alright.

In his witness statement, the respondent stated:

I some time had to have physical confrontations to defend myself from being harmed when the passengers physically abused me with the violence, or threatened to harm/kill me with the verbal abuse in fare evading, and in such situation I had to chase them and called the police when I was assaulted and injured, I even confronted with the off duty police officers a few time when they did such bad and unlawful thing in their attempted fare evading against me.

The respondent gave evidence about the incident mentioned by his referee. The respondent could not remember exactly when it occurred but he testified that someone tried to assault him and abused him. He stated that it involved police officers. During cross examination, he explained that by fare evading he meant when he arrived at the destination the passenger would ‘shut the door and start running.’ Cross-examination continued:

So rather than say calling the police or reporting it you decided that you would chase that person?---When – when you call the police everything too late.
So you thought you would take it upon yourself to correct that injustice by going after the person who is trying to run away from you after having not paid the fare?---I run – I run after – no physical ultimatum, no – I never start initial – anything physical - - -
We’re not talking about physical. There’s someone here who fled your taxi because he didn’t want to pay your fare. You chased them, didn’t you?---Yes I did, I have a few time.
Right. There’s no threat to your safety when someone doesn’t pay a fare, runs away from the taxi, far away from you, is there?---That – that’s – that’s only – is not assault. When I chase them I never – I never have any – any assault on passengers. That’s true. Even – even if you can recall last time we talk about one – one Greek young boy, he (indistinct) my chest but I never use my physical – and he ambush me, he black my eyes – blackened my eyes but I only ask if you don’t money, give me your ID, I take the number down. He didn’t give me but he ambush me, blackened my eyes. Then I didn’t let him go, with some stand by, asked them to call the police. The police come – the police come then he has – he had to tell his ID, identity and then the police officer wanted to charge him, want to charge him for reckless causing injury for my black eyes and also want to charge him threat to kill, he threat to kill me and also want to charge him for fare evading. But at that stage, that young Greek man, he begged me, he begged me and said, ‘Oh please forgive me. Forgive me. Don’t charge me’. And that police officer is, ‘Up to you if you want him charge I can charge him, lock him up’, but I decided he may – he did wrong thing but he also deserve a second chance. I let him go and he promised, he promised he would pay the fare back. I let him go. I gave – I gave him a second chance.

So essentially the police let him go because you told them to, is that right?---Sorry?
The police let him go because you told – you told them to?---Yeah.
You decided to give him a second chance, not the police?---Not decided, the police officer ask me.
Right?---Not what I decided. The police officer said, ‘Now, up to you, now if you want him to be charged’, he can charge him.
I suggest to you AA that as a taxi driver you shouldn’t have engaged in any physical retaliation, you shouldn’t have run to chase down fare evaders, you should always call the police?---Is that - - -
Do you agree with that?---I can see if I learn from transport staff, I have never done that in my life, only colleagues, they’ve done slam young girl out to the ground. They chase – they chase a fare. They chase fare evaders. If – if I were them I could never done that. I – I was – regard myself – I done much better than – than your colleagues.
So you don’t trust those entrusted by the State to look out for the passengers of public transport - - -?---No, no, I mean the taxi – sorry, inspectors. Can’t you see the news. White young girl, slam young girl on to the ground - - -

The applicants submitted that the Vice President did not take into account the respondent’s evidence, which they argue suggested a violent history towards members of the public generally. The applicants did not seek to argue that this was a factor that the Tribunal was required to take into account under one of the legislative provisions such that a failure to do so would amount to a jurisdictional error.[125] Rather, they contended that when this evidence was taken into account, it was apparent that it was not open to the Vice President to make the finding of a lack of violent history towards members of the public.
[125]See Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

The applicants submitted that there was no need for the respondent to chase the fare evader if he was trying to stay away from physical injury. They say that not only did he chase the fare evader but, when assaulted, he sought to restrain the person rather than simply not being involved in any more physical contact. They also pointed to his more general evidence in his witness statement that he sometimes had physical confrontations, which the applicants contend evidences that there was more than one altercation of this type.

In coming to the conclusion that there was no evidence of the respondent having any violent history towards members of the public generally, the Vice President did refer to the record of the telephone conversation with the referee. She placed no weight on that conversation in view of the fact that the referee was simply repeating what he had been told by the respondent.[126]
[126]Reasons [206]. See [43] above.

The Vice President did not refer in her reasons to the respondent’s evidence about the fare evader or other physical confrontations he had had. However, in our opinion, that evidence does not take the matter further in any meaningful way. It simply provides more detail about the incident. Taking all of the evidence into account, it was open to the Vice President to make the finding that she did. Chasing after someone who has not paid their fare, catching up to and being assaulted by the fare evader, then restraining (rather than attacking, or attempting to initiate an attack on) the fare evader until police arrived does not in our view compel the conclusion that there was evidence of the respondent having a violent history against members of the public. Such conduct might properly be characterised as defensive rather than violent.

Was the finding that there was no evidence of anger management issues open?

In relation to anger management issues, the Vice President observed:

In my view, it is significant that notwithstanding the multiple failed legal challenges, none of the concerns raised by Dr Carroll have come to fruition. The Applicant has not developed any depressive illness, he has not harmed himself or others and there is no evidence before me that the Applicant presently has any anger or impulse management control issues. He has not had any dealings with the criminal justice system whatsoever.[127]

[127]Reasons [43].

Later in her reasons, the Vice President stated:

The Tribunal may be cautious to simply accept, at face value, the Applicant’s evidence that he does not have an anger management problem and that he will act always within the law. However, such evidence gains credibility by the reality of his behaviour since his release from custody. The Applicant’s clean record since his incarceration strongly supports his contention that his efforts to clear his name will remain lawful. I do not accept that the Applicant has any unresolved anger management problems that would render him unfit to handle difficult passengers.[128]

[128]Reasons [100].

Elsewhere in her reasons the Vice President said that she did not consider there to be any concern regarding the respondent’s ‘anger management or control issues,’[129] and observed that his clean record since offending was ‘inconsistent with the suggestion of continuing anger management problems.’[130]
[129]Reasons [220].
[130]Reasons [232].

The revised questions of law challenged the conclusion by the Vice President that there was no evidence that the respondent ‘presently has any anger or impulse management control issues.’ In argument, the applicants expanded their attack. They criticised not only that finding but also the positive finding that the respondent did not have any ‘unresolved anger management problems.’ They submitted that both findings were not open to the Vice President in view of the evidence. The applicants pointed to the evidence of Mr Ian Joblin who is a forensic psychologist. The applicants relied upon the following passage from his cross-examination:

Did you assess whether he had an anger management issue?---No, not directly, because he indicates emphatically that the offences did not happen, so he’s not - he can’t be angry.
If you accept this proposition, if you accept that on 14 June 1997 he had a verbal dispute with his de facto about the child and living arrangements, he lost control, pushed her to the floor, choked her around the throat with both hands, then grabbed her - one of her arms and stuck it behind her back, and then six days later broke into the house, assaulted her again, threatened her with the knife, and then a year later stalked her outside a travel agent, and then in August of 2000 tried to attempt to have somebody kill her, would you not agree with me, if those things were factually correct, that he suffered from some serious anger issues?---Yes.
And that he may have had an anger management problem?---Yes.
It would seem that, given that long history, he would have required some psychological assistance to overcome those issues, those anger issues?---Yes.
They won’t go away by themselves, given that long history of anger?---Well, one wouldn’t expect them to disappear.
No. So one would expect that, seeking psychological help - first of all, concealing that there is an anger management problem would be the first step towards recovery?---Yes.
The second step would be getting help?---Yes.
The third step would be attending help regularly and putting into place the tools to manage that anger?---Yes.
Then the fourth step would be proving or demonstrating that those tools were working by being in situations where anger is not lost?---A lot of other steps, but those are some steps.
Indeed. But if one placed a person on that sort of road map, one would have expected at the end of that map that they would have addressed their anger issues?---Well, that’s a logical sequence, but it’s not necessarily what happens, unfortunately.
Yes?---This man got locked up and was put into an institution, which is predicated on anger and aggression and antisocial behaviour.
That may have exacerbated the fact and - - -?---May have exacerbated it.

The first part of this evidence concerns events that occurred more than 10 years before the trial and goes no further than indicating that when the events occurred, the respondent ‘may’ have had anger management issues. The balance of the evidence is based on hypotheses. Notably, Mr Joblin was not asked if it was his opinion that the respondent had anger management issues at the time of the trial. In essence, the applicants’ submission is that it must be inferred from Mr Joblin’s evidence that the respondent had continuing anger management issues.

Against that, and as the Vice President observed, there is the actuality of the respondent’s behaviour since serving his term of imprisonment and, in particular, the fact that he has not re-offended during the course of many years.

The Vice President’s findings were well open to her. They reflected her review of the relevant evidence and the gaps in it.

Were the findings about public interest and risk to the safety of passengers open?

As noted previously, the Vice President found that it would not be against the public interest to give an assessment notice and to issue driver accreditation nor would it pose an unjustifiable risk to the safety of passengers.

The applicants contended that those findings were not open on the evidence when one took into account that in their submission there was evidence of the respondent’s violence and anger management issues, that the respondent had a mental health condition in the form of a delusional disorder (Dr Glowinski’s report) and that the respondent was not remorseful.

We have already rejected the applicants’ contentions in relation to violence and anger management. So far as the state of his mental health is concerned, as the respondent submits, the majority of expert opinion before the Tribunal was that there was no evidence of a personality disorder, and the Tribunal made no error of law in making a decision based on the material before it. The Vice President carefully summarised and considered the evidence. The applicants predominantly focussed on the report of Dr Glowinski, in which he concluded that the respondent had a significant personality disorder. The Vice President summarised his evidence[131] and made numerous specific references to it when considering the various legislative requirements.[132] She also referred to the evidence of Dr Byron Rigby, the respondent’s treating psychiatrist. He prepared two reports which were tendered into evidence. In his first report dated 5 September 2015 he stated that he had found ‘no evidence that [the respondent] can be categorised as having a “Paranoid Personality Disorder”.’ In an addendum report of 10 October 2015, Dr Rigby reiterated that he had ‘consistently failed to find significant paranoid elements that could predicate a diagnosis of any paranoid condition, whether Personality Disorder or other paranoid state.’ Having reviewed the evidence, the Vice President stated:
[131]Reasons [45], [77], [78].
[132]Reasons [104], [129], [213], [214], [234].

The mental state and possible mental disorders affecting the Applicant became the primary focus of evidence before the Tribunal. Dr Glowinski made the following assessment:
I agree with the Respondents that AA carries mistrust of authority and a strong sense of being victimised. I think that AA has a significant personality disorder, most likely with narcissistic and paranoid elements.

Dr Glowinski was asked to clarify his comments with respect to whether the Applicant had a paranoid personality disorder. In his Addendum Report, Dr Glowinski wrote:
I think that the volume of evidence available regarding AA points to the ICD-10 definition of paranoid personality being a reasonably accurate description of AA’s behaviours.

The Applicant strongly disagrees that he has a paranoid personality disorder. He points to the fact that he was assessed in 2004 by Dr Carroll at Forensicare and no such paranoid personality disorder was diagnosed. Such finding was supported by Mr Joblin in his report dated 20 April 2004:
The preoccupation AA has does not amount to a litigious paranoia, which is a diagnosable abnormality. Because it is AA’s firm belief that he was wrongly convicted he can make application for a petition for mercy. He has been preparing a document in support of that. He certainly has feelings of injustice and is simply pursuing those issues. It is very difficult under those conditions to indicate that this represents a diagnosable psychological abnormality.

Dr Byron Rigby provided a report at the request of Applicant for the purpose of the current proceeding. The Applicant has consulted with Dr Rigby on at least 10 occasions, assisting him with his distress in trying to obtain a commercial bus driver’s licence and over matters relating to his former marital relations. I give substantial weight to the opinions of Dr Rigby; given that he is a treating practitioner. Dr Rigby’s evidence was comprehensive and consistent in all relevant respects under cross examination.
Dr Carroll, Mr Joblin and Dr Rigby all found no diagnosable personality disorder. Dr Rigby stated:
Throughout this extensive review, I have found no evidence that AA can be categorised as having a ‘Paranoid Personality Disorder’. … I consider that imputing a psychiatric diagnosis, let alone a highly speculative categorisation of a personality disorder, to AA is a serious error… It appears wholly erroneous from a clinical point of view.

Having reviewed the extensive written and oral expert evidence and viewed the Applicant’s conduct at the Tribunal over several days, including time in the witness box, in my view, the Applicant exhibited some paranoid personality traits, especially in his dealings with authority. Indeed, the Applicant seems to accept that he has some paranoid personality traits.
All experts agree that the Applicant has devoted extensive energy into clearing his name. In my view, that devotion has become like an obsession and it is that obsession that primarily drives the Applicant, rather than any diagnosable psychiatric personality disorder. I concur with Mr Joblin’s view that it is a pre-occupation rather than a psychiatric paranoid condition.
Significantly, in my view, to the extent that the Applicant exhibits features of a paranoid personality disorder, they arise exclusively in consequence of his perceived mistreatment within the criminal justice system. Even if it were the case that I accepted the Applicant had a paranoid personality disorder, the space in which the paranoia arises is in relation to his dealings with the law. There is no compelling evidence that such predilection has or would have any adverse impact on his ability to drive commercial passenger vehicles or that his paranoid personality traits would cause any distress, danger or discomfort to a passenger in his vehicle….
I do not consider the Applicant’s paranoid tendencies, howsoever described, are serious enough to make a finding that he is not sufficiently fit and healthy to provide commercial passenger vehicle services.[133]

[133]Reasons [77]-[84], [86] (footnotes omitted).

As this passage makes clear, the finding that the respondent did not pose an unjustifiable risk was open when all of the evidence is considered. In essence, the applicants would have the Court focus solely on the evidence of Dr Glowinski and prefer it to that of the other experts, particularly Dr Rigby. But is the applicants failed to explain why the Tribunal’s reliance on the evidence of those other experts amounted to an error of law.

Turning then to the respondent’s lack of remorse, he maintains his innocence in respect of his conviction for inciting murder. The applicants take issue with the Vice President’s conclusion that this was but one factor to be taken into consideration and submit that in view of the respondent’s lack of remorse, it was not open on the evidence for the Vice President to make the findings that she did in respect of risk and the public interest. They note that if the respondent is successful in his application, then he would be accredited to work unsupervised with children and vulnerable individuals.

The Vice President dealt with the respondent’s lack of remorse in some detail. She stated:

It is clear that the Applicant is not remorseful for the incitement to murder offence for the simple reason that he cannot be remorseful for a crime he ardently believes he did not commit. Mr Joblin explained during cross‑examination that concepts of responsibility, remorse and contrition can only be discussed in the context of the perpetrator having acknowledged the commission of an offence. When a person maintains their innocence, they cannot then say they are sorry and express remorse. Mr Joblin states that ‘AA believes he is innocent of the offence, so these matters can’t be an issue’.
Although not remorseful, the Applicant has expressed an understanding that inciting murder is very serious and wrong, and he has expressed an understanding of the consequences which flowed to his daughter and wife. He described incitement to murder as ‘horrible’. He cannot come to terms in his own mind that he has been found guilty because he believes that he never formed an intention to have his wife killed, even though he openly discussed the topic with the undercover officers on a number of occasions. For the avoidance of doubt, I do not accept the Applicant’s position that he is not guilty of the incitement to murder offence.
In relation to the ‘recklessly cause injury’ offence, he expressed shame for choking his wife and admits that he lost control. Even though he says he was provoked by his wife’s initial assault against him, which could be interpreted as an attempt to minimise the significance of the offence, he has still admitted that his violent retaliation was still not justified. He has consistently admitted and acknowledged that the retaliation on his wife was unjustified. It would be a different matter if he were to say words to the effect that she deserved it. He has not expressed any such sentiment.
In my view, the likelihood of the Applicant inciting the murder of another person is virtually nil. The offence was the final act in a fraught domestic relationship. It is clear that the Applicant has moved on from that episode and sought to rebuild his life. He has effectively given up on reconnecting with his now ex-defacto wife and accepted that his daughter is no longer in his life.[134]

[134]Reasons [153]–[156] (footnotes omitted). The Vice President also referred to and made similar observations in relation to the respondent’s lack of remorse in the context of separately considering the likelihood of a future threat to a child under the Working with Children Act: Reasons [212], [220].

The Vice President concluded:

I acknowledge that the most concerning aspect of the Applicant’s application is his express lack of remorse for inciting the murder of his wife. He does not agree that he is criminally liable. That is the position that the Applicant has consistently maintained since his arrest in 2001 and until now. I have no doubt that the Applicant will continue to maintain his innocence and justify, perhaps primarily to himself, how it is that he came to be convicted for such a serious crime.
Although there is no shortage of authorities in which a lack of remorse has caused the Tribunal to find that a person is an unjustifiable risk, each case must be considered on its merits. Lack of remorse is a highly relevant consideration when determining whether there is unjustifiable risk of repeat or similar offending, but it is not the only factor.[135]

[135]Reasons [230]–[231].

Despite the respondent’s lack of remorse, when other matters were taken into account, it was open to the Vice President to find that the statutory criteria had been satisfied, both as to whether there was an unjustifiable risk and whether it was in the public interest that he be accredited and given an assessment notice. It is clear that the Vice President was alert to the importance of a lack of remorse to determination of those criteria, but, as she stated, it is not the only relevant matter. In particular in this case, the respondent had led a blemish-free life over many years and the circumstances of his crime were confined to a fraught personal relationship. It did not arise in a public work environment. Considered in that context, it was clearly open to the Vice President to find that both the risk and public interest criteria were satisfied.

Conclusion

The applicants’ proposed appeals have no real prospect of success. Despite counsel’s attempt to reformulate the proposed grounds of appeal so that they raised questions of law, in substance the applicants’ true complaint is that the Vice President failed to take into account some evidence or failed to give it the weight which they believe it should have been given. The findings that the Vice President made and with which the applicants cavil, were all clearly open on the evidence. The applications for leave to appeal should be refused.

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17 February 2017