Darko v Roads and Maritime Services

NCAT Occupational|2017-07-26

Background

Mr Darko applied to the Tribunal to review a decision by the Respondent (RMS) on 17 March 2017 (the Review Decision) to refuse Mr Darko's 17 October 2016 application for a New South Wales public passenger vehicle driver authority to enable him to drive a taxi-cab (the Driving Application).
Mr Wozniak, representing RMS, informed the Tribunal that the Review Decision was made because Mr Darko had criminal convictions and had committed several traffic offences.

Jurisdiction of the Tribunal

The application to the Tribunal (the Tribunal Application) was made pursuant to s 52 of the Passenger Transport Act 1990 (the Act) which relevantly provides that a person whose application under Part 4 of the Act (which includes an application for authorisation to drive a taxi-cab) has been refused, may apply to the Tribunal for an administrative review, under the Administrative Decisions Review Act 1997 (the ADR Act), of the refusal. All references throughout these reasons to legislative provisions are to provisions of the Act or the Passenger Transport Regulation 2007 (the Regulations) unless stated to the contrary.
Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Review Decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the Review Decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for the Review Decision or remit the matter for reconsideration by the administrator who made the decision

Material before the tribunal

The Respondent relied on; 1. certain of the documents filed by RMS with the Tribunal pursuant to section 58 of the ADR Act, (s 58 documents); 2. a New South Wales Police Facts Sheet in the name of Ricardo Brown dated 15 March 2006. Attached to the Facts Sheet is a pre-sentence report dated 4 July 2006; 3. a District Court Indictment dated 13 July 2006 of Mr Darko (under the name "Ricardo Brown") for robbery in company on 15 March 2006 together with a District Court trial record of judgment. 4. a one-page extract from a bundle of documents (produced under summons) from proceedings before a District Court hearing on 14 July 2006. Wording on the one-page document is similar, but not identical, to some of the wording in the Facts Sheet referred to in the preceding paragraph; 5. a combined New South Wales Police Force Criminal History - Bail Report and Traffic Record Report, both dated 28 June 2017, in respect of Mr Darko; 6. and oral submissions by Mr Wozniak, solicitor representing RMS.
The Applicant relied on: 1. the grounds in his Tribunal Application, namely "Compassionate grounds" and "Length of time with clean record"; 2. a bundle of 17 character references; 3. Mr Darko's oral evidence to the Tribunal; and 4. his oral submissions to the Tribunal.

RMS' case

RMS' initial decision made on 17 April 2016 to refuse Mr Darko's Driving Application was the subject of a request by Mr Darko for an internal review. The outcome of the internal review by RMS was the Review Decision in respect of which Mr Darko applied to the Tribunal.

Mr Darko's history

RMS relied on certain events in Mr Darko's history including criminal convictions, his driving record, a letter he wrote nearly two years ago in support of his Driving Application and some of his oral evidence to the Tribunal, in support of its submission that Mr Darko was not a fit and proper person to drive a taxi-cab.
The factual basis for RMS' case, and Mr Darko's response are summarised below.

Robbery in company

The most serious event relied on by RMS is Mr Darko's conviction in July 2006 by the Sydney District Court for the offence of robbery in company. Mr Darko was indicted and pleaded guilty the day after he was indicted. He was sentenced to 3 years 6 months imprisonment with a non-parole period of 1 year 9 months, both to date from 15 March 2006.
Mr Wozniak submitted, and it is undisputed, that the head sentence expired in 2010. However, there is also no dispute that that Mr Darko was released at the end of the non-parole period, that is at the end of 2007, nearly 10 years ago.
Mr Darko has acknowledged orally and in writing that what he did was wrong. His application for an internal review by RMS included: …. 11 years ago I made the single biggest mistake of my life. I was young, I was misguided and I was stupid. I paid for my mistake to society. The punishment then is a lingering reminder of a disappointing time in my life ….

Drive vehicle with illicit drug present in blood

The other major event in Mr Darko's history occurred on 4 October 2011 when, as a result of a random drug test on 17 August 2011, he was convicted of "drive vehicle with illicit drug present in blood". Mr Darko was fined $1,000, ordered to pay $81 court costs and disqualified from driving for 6 months from 4 October 2011.
Mr Wozniak submitted that driving with illicit drugs in his blood in 2011 contradicted Mr Darko's written representation, which accompanied his Driving Application, to the effect that after he returned to the community following his imprisonment he worked "on being the man I need to be".
Mr Darko's evidence was that it was not easy to change his way of life. His involvement in crime stopped immediately but stopping drug use took longer. Mr Darko said: …. anybody that's on the street that done the same thing, that's hard to do and I'm proud of where I am now and maybe you haven't experienced this, you don't know how difficult it is but it is difficult and it took some doing and I am where I am now because I chose to stop you know, that was hard. Just like quitting smoking is not easy, you can't just stop …

Recent use of drugs

Mr Wozniak submitted that Mr Darko's oral evidence to the Tribunal was that "he was using drugs up until the birth of his first child, which was November 15". Mr Wozniak also based his submission on the contents of page 33 of the s 58 documents and said Mr Darko used marijuana or weed until the birth of his child on "5 November 2015, which isn't very long ago".
In responding to the submission, Mr Darko referred to certain notable events prior to the birth of his first child. His evidence was that having regard to those events he had given up drug use by 2013.
Neither page 33 of the s 58 documents nor the transcript of Mr Darko's oral evidence support Mr Wozniak's submission. In the circumstances, I reject the submission.
There is no evidence before the Tribunal that Mr Darko has used drugs in the 4 years preceding the hearing and I accept Mr Darko's evidence on this point.

Other traffic offences

Under the heading "Finding on material issues of Fact" in the Review Decision, RMS stated it determined to refuse the Driving Application because of the robbery in company in 2006, the 2011 conviction for drive vehicle with illicit drug present in system and certain specified traffic offences.
The specified traffic offences were described as "offences within the last five years which include three (3) counts of exceed speed limit and one (1) count of illegal use of bus lane" as well as two counts of drive unregistered vehicle and one count of drive unlicensed in 2004.
In Mr Darko's letter which accompanied the February 2017 request for internal review the letter, Mr Darko stated "I have not had so much as a parking ticket in the last 4 years because I know the importance of a licence to my livelihood …"
I find that Mr Darko has "gilded the lily" somewhat, in that although there is no evidence of any parking tickets during the period from February 2013, the NSW Police Service Traffic Record Report in evidence (the Traffic Record) discloses offences in each of March and May 2013 of "exceed speed limit by more than 10 km/h but not more than 20 km/h" and driving a vehicle other than a bus in bus lane in May 2013.
The traffic offences in 2004 occurred over 13 years ago and, by themselves, have minimal weight as to whether Mr Darko is currently of good repute and a fit and proper person to hold a relevant authority.
However, I observe that the Traffic Record includes traffic infringements in 2005, 2006, 2008, 2009, 2010 and 2012 as well as the offences previously mentioned which occurred in 2004 and 2013.
There is no evidence before the Tribunal that Mr Darko has committed a traffic infringement since May 2013, more than 4 years before the date of the hearing. Indeed, Mr Wozniak conceded that Mr Darko's driving record has improved in recent times.
The Traffic Record states that as at 28 June 2017 Mr Darko held a P1 Provisional Licence class R with an expiry date of December 2016 and an unrestricted class C licence with an expiry date of April 2025.

Letter which accompanied the Driving Application

Mr Darko provided RMS with a letter which accompanied his Driving Application (the letter). The letter stated that it was intended to explain his involvement with the legal system, not to make excuses, but to provide information about how he is moving his life forward.
Mr Wozniak submitted that Mr Darko intended RMS to rely on the letter, which contained important factual errors.

RMS further submissions

Mr Wozniak orally submitted: 1. Section 33 requires an attestation that a person be of good repute and be fit and proper. Mr Wozniak said "The starting point is Bond's case, that honesty is an integral part of being fit and proper" and Mr Darko "appears to be trying to minimise, or water down, or somehow justify the penalty that he received"; 2. Mr Darko gave a false answer to the question "have you been known by another name?" and he repeated the false answer in evidence to the Tribunal. This goes to a lack of honesty. 3. The letter falsely stated that Mr Darko was not legally represented during the District Court criminal proceedings; 4. There was a misrepresentation regarding the penalty order from the District Court proceedings; 5. Mr Darko was caught with illicit drugs in his system while driving a motor vehicle 2 years after he was released and this is contrary to the letter stating that on his return to the community (after the term of imprisonment) he was working on the man he needed to be; 6. "Not one of his referees mentions the fact that he was incarcerated" and "that he was a drug user who's given up taking drugs"; 7. "One would expect that there would be some sort of medical evidence to show that he was a long-term user over that period of time, that he is cured, and he is no longer taking drugs"; 8. Mr Darko shows a lack of insight as to what is a crime in New South Wales;

Legislative scheme

Subsections 33(1) and (2) provide that RMS may, by issuing a relevant authority, authorise persons to drive taxi-cabs. Without an authority, a person who drives a taxi-cab is guilty of an offence.
Subsection 33 (3) relevantly provides: (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.
Section 33B provides that before an application for an authority is granted: the applicant must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
The relevant Regulation is clause 29 which provides several criteria. The only criteria relied on by RMS for refusing the Driving Application are those found in clause 29(2)(e)(ii) and (iii), namely that Mr Darko: (e) must satisfy RMS that he ….: (ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and (iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.

Issues before the Tribunal

Having regard to the above legislative provisions I find that in order for the Tribunal Application to succeed, Mr Darko must satisfy the Tribunal, as to the matters referred to in cl 29(2)(e)(ii) and (iii) above.
Accordingly, the issues for the Tribunal are whether I am satisfied on the material before me that Mr Darko is relevantly of good repute and in all other respects a fit and proper person to drive a taxi-cab and has sufficient responsibility and aptitude to drive a taxi-cab.

Consideration

Mr Wozniak submitted that pursuant to s 33(3) the purpose of a relevant authority is to attest that the authorised person is considered to be of good repute and is a fit and proper person to drive a taxi-cab.
Mr Wozniak relied on the decision of the Appeal Panel in Director General Transport v AIC [2011] NSWADTAP 65 (AIC) to support a finding by RMS that Mr Darko was not a proper person to be authorised to drive a taxi-cab.
Mr Wozniak referred to the reasons given by the Panel at [12] when considering the meaning of the word "attest" in relation to the purpose of an authority in s 33. The Panel said: …. The primary meaning of [the word 'attest'] is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary, 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context.
The context in which the Panel made its findings in AIC was a review of a decision by the former Administrative Decisions Tribunal (ADT) to stay an application to reverse a decision by the then Director General, Transport NSW to suspend the authority of a taxi-cab driver who had been charged with two offences. At first instance Moloney JM said at [8] that there was no dispute that: The charges brought against AIC are serious criminal charges. The charges relate to events alleged to have occurred at an unspecified time in 1999. AIC denies the charges, intends to plead not guilty, and to contest the allegations made against him. If convicted, AIC is likely to be imprisoned. AIC does not have a criminal record.
The was no evidence before the Tribunal as to when the charges would be dealt with and the suspension was on its face indefinite.
Moloney JM said: 11. It is not the province of the Tribunal in considering a review of a decision to suspend a taxi authority to examine the strengths or weaknesses of the prosecution case against an authority holder: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 at [22]. As was the case in Farquharson, here the objective seriousness of the charges brought against AIC is the reason for the agency's decision to suspend his taxi authority. 12. In Farquharson the President found that the agency, and the Tribunal on review, should take account of the ' likely perceptions of the travelling public' when considering exercising the discretion to suspend an authority …. 13. The role that the perceptions of the travelling public play when making assessments of character and reputation was recently considered by an Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16, at [20]: 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: [Bond Media]. 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. 14. In Nasourv Director - General, Transport NSW [2011] NSWADT 91 the President having referred to the decision of the Appeal Panel in Murray wrote, at [31 - 34]: The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson, ... 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 [Bond Media] at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. …. 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'. 15. In AIC's case the decision made on internal review was that, as a result of the criminal charge, he is not a fit and proper person to drive a taxi-cab. In my opinion the fact that he has been charged with a serious offence, without more, does not justify the drawing of an adverse conclusion as to his character. As the President said in Farquharson it is preferable to reserve judgment on AIC's intrinsic character until more is known …. 16. Rather, the issue is whether the fact of the criminal charge alone so impacts on AIC's repute, or his aptitude and responsibility, so as to justify an adverse finding with respect to those matters meriting the suspension of his taxi authority. 17. An assessment of whether a person is of good repute, requires the assessor to consider how "reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt" (Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37). The fact of criminal convictions is not determinative of the issue, although they are an important consideration: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 402. A simple assertion that a person is not of good repute, without more, is therefore of little assistance. …. 19. Reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives…. 20. In this case there a number of references before the Tribunal which attest to the good repute in which AIC is held by those with whom he associates, including those who use his taxi services. While these references do not expressly address the nature of the charges against him, the agency accepted that three personal referees had been contacted and told of the charges, and maintained their view of AIC's reputation. Despite this, the agency submitted that the perception of reasonably-minded members of the public would be that, because of the charges alone, AIC should not be allowed to continue to drive until the charges against him are determined. …. 26. In AIC's case there is no doubt that the charges laid against him are objectively serious. They are not, however, recent and did not occur in the regulated environment of the taxi industry. There is no suggestion of any allegations of misbehaviour or impropriety by him in the 12 years since those events are alleged to have occurred, or, indeed, before then. He is 65 years old, importantly, no suggestion of misbehaviour or impropriety had been made against him in the context of the taxi industry. AIC intends to fight the charges against him. It is likely to be a considerable time before they are heard. His record as a taxi driver is a good one. The direct evidence I have concerning AIC's repute, shows that despite the charges levelled against him, he is well regarded by those with whom he associates, including persons who use his services as a driver. There is nothing in the evidence before me which points to a likelihood of AIC misbehaving, committing improper acts or offences, now or in the period leading up to his trial, either generally or in the context of the taxi industry.
Moloney JM set aside the decision under review and lifted the suspension.
On appeal, the Panel set aside Moloney JM's decision and restored the suspension decision with the addition of the words 'until such time as the charges are finalised'. In the event, prior to the time the Panel's reasons were published, the charges against AIC had been dealt with and AIC had been acquitted. Accordingly, the suspension had lapsed.
In the course of its reasons the Panel said: 13. …. The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'…. 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry …. and 'repute' goes to the public estimation of the person …. 15. As we see it, the purpose of threshold requirements cast in broad terms of these kinds is to give 'the widest scope for judgement and indeed for rejection' (see Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at 156). The various broad expressions invite the administrator to look broadly at the character and reputation of the individual and they have at the heart the conferral of public trust. The review tribunal is engaged in the determination of a question of fact. It has wide scope, therefore, for judgement, and its decision can not easily be set aside on error of law grounds. … 20. …. the effect of a suspension may be very harmful to the individual financially. There is also the humiliation and damage to public reputation that may follow.

Submission number (1)

There is no dispute concerning the submission contained in the first sentence of the submission.
I observe that, in relation to the remainder of the submission, Mr Wozniak provided no reference to "Bond's case". It may be that he was referring to the decision in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (Bond Media) in which the High Court considered the meaning of "fit and proper" in the context of holding commercial broadcasting licences. In their reasons in Bond Media, Toohey and Gaudron JJ said at [63]: 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.
I find that the above extract from their Honours' judgement is relevant to Mr Darko's application and the role of the Tribunal.
However, I observe that a search of the whole of the judgment in Bond Media fails to indicate any use of words "honest", "honesty" or "integral".
I find there is nothing objectionable in Mr Darko or any other applicant, seeking to present their side of a story. However, I find that any inaccurate presentation of facts may lead to a finding that the applicant lacks credibility and may detract from the applicant's case.
I find that parts of the letter misrepresented the events which led to Mr Darko's conviction. In his oral evidence to the Tribunal Mr Darko sought to explain away the words he used and denied that his use of the letter was an attempt to minimise the events.
After several questions were put to Mr Darko he eventually acknowledged that he did not expect the Tribunal to believe certain words in the letter and certain of his oral evidence.
Mr Darko's failure at times to provide direct answers to questions while giving evidence and his attempts to deflect questions concerning certain facts which did not show him in a good light do not reflect well on his character.
However, I also find that in the original Driving Application and in the letter and in his oral evidence Mr Darko made substantial concessions concerning the criminal activities and convictions and the traffic infringements on which RMS relied.

Submission number (2)

This submission also deals with the issue of honesty. Mr Wozniak referred to question 17 in the Driving Application. That question asks whether the applicant has ever been known by another name or date of birth. Mr Darko's answer was "No".
In cross-examination Mr Wozniak asked Mr Darko several further questions concerning his name. The transcript of Mr Darko's cross-examination includes: Q In Australia have you ever been known by another name? A. No. Q. Never? A. No. Q. Well sir who's Ricardo - I'm sorry I just missed that-- A. Ricardo Brown? Q. Yes so who's Ricardo Brown? A. That's what I call myself. Q. Look sir you were charged by the police under that name and sentenced under that name, is that right? A. That's right. Q. Right let's go back to question 17 again? A. Mm-hmm. Q. Are you now or have you been known by another name? A. No 'cause that's not a right name. Q. Sir you appeared before the District Court-- A. No on-- Q. --under the name of Ricardo, didn't you? A. No, no but it was also - it was - I was charged under Ricardo but it was actually - they knew it was me. They wrote my name …. that's why they was all linked. Q. And you see you told us earlier, not under oath, that you used that name "Ricardo" when you were at school? A. That's right in the - not like my teachers, on the playground. Q. And sir you've seen that you've also in the criminal record that I've given you, I'm not sure whether you've got that with you, you'll see that's written that Ricardo Brown is one of your aliases? A. That's right because that was the name I gave that day…. Q. That's the name you gave that day to who? A. To the police. Q. Well sir question 17, "Have you ever been known by another name?" A. I don't see how that's related to this. That's why I've ticked, "no". Q. You don't see that? A. That's because like no-one knows me as this, that's why I ticked "no". It's not like I'm trying to deceive anybody. Q. Sir the District Court knew you as "Ricardo Brown"? A. They knew me as "Andy Darko". I don't know what they know. Do you know what I mean?
There is no dispute that Ricardo Brown was the name by which Mr Darko was indicted and convicted. Mr Darko was well aware at the time of his cross examination that this information was before the Tribunal. It is clear to me that Mr Darko was not accurate when he answered several of the questions extracted above concerning names by which he was known. However, having regard to his knowledge of the information already before the Tribunal, I find that Mr Darko's answers evidence a lack of insight rather than dishonesty.

Submission number (3)

I accept Mr Wozniak's submission that the letter stated that Mr Darko was not legally represented during the District Court criminal proceedings when the undisputed fact is that he was so represented. However, I also accept Mr Darko's evidence that his reference to non-representation relates more to what he perceived to be the quality of the representation rather than the fact that he was represented by a lawyer.
The quality of Mr Darko's legal representation during the District Court proceedings is not an issue in these proceedings, and I make no observations or findings in relation to same.

Submission number (4)

This submission again relates to the issue of honesty. The words used in the letter were: …. I along with the group were charged with Robbery In Company with a maximum penalty of 3 years and 6 months. I not having and (sic) legal knowledge or representation I was sentenced to 21 months with a parole period.
I observe that the letter accompanied the Driving Application which, in answer to question 25 referring to prior convictions, detailed a conviction for the offence of "Robbery In Company" and the Outcome of "Imprisonment for 3 years and 6 months."
I have dealt above with the issue of legal representation. The evidence is that although Mr Darko has had brushes with the legal system he has had no formal training in legal matters. Notwithstanding Mr Wozniak's submissions as to Mr Darko being "very articulate in the witness box …. [and] … he writes logically …." I find that Mr Darko has displayed a lack of insight in relation to certain matters, some of which have been referred to above.
In the circumstances and having regard to the contents of the Driving Application and the wording of the letter I find that to the extent, if any, that there is any "misrepresentation regarding the penalty order" it does not involve dishonesty.

Submission number (5)

Mr Darko acknowledged that the letter said he was "working on the man I need to be" upon his return to the community. It did not state that he had become the man he needed to be. I dealt at [14] to [19] above with the issue of drug use and Mr Darko's evidence on this point and will not repeat myself.
Stopping tobacco smoking is substantially different at law to stopping smoking illegal substances. Mr Darko's linking of the two is understandable at one level in that both activities may be hard to stop. However, an attempted analogy between ceasing to carry out an illegal activity and ceasing to carry out a legal activity indicates a further lack of insight by Mr Darko.

Submission number (6)

Mr Darko submitted 17 references, 15 of which were statutory declarations.
Mr Wozniak is substantially correct when he submits that none of the referees mentions that Mr Darko was "incarcerated". The only referee who made specific reference to imprisonment was Mr Darko's mother who referred to him "serving his sentence".
However, of the 17 referees, including those who stated they had known Mr Darko for periods of as little as five years, 12 expressly referred to being aware of Mr Darko's "prior" or "previous" convictions. Three other referees did not use the word "convictions" but referred to "past mistakes", straying off the path and doing things which were "immoral and wrong" and breaking the law. Only two of the 17 referees made no reference to prior convictions or breaches of the law.
All of the references are highly positive in relation to character and the vast majority, which refer to earlier convictions, also refer to Mr Darko's changed attitude and the positive person he has become at the date the references were made, all of which are dated between March and June 2017.
Mr Wozniak submitted that the Tribunal needs to take care with the weight that it gives the references. I accept that submission. There is no doubt that an express reference to a knowledge of particular offences, convictions and penalties carries more weight than a reference which does not refer in detail to such matters.
However, having regard to the number of references and the fact that the vast majority of referees made statutory declarations to refer to their awareness of earlier convictions and changes in the responsibility exhibited by Mr Darko and the manner in which he has lived in recent years, they cannot be disregarded.
I have also had regard to the fact that Mr Darko is not represented in these proceedings and his evidence that he was not aware of the importance to be given to the express inclusion in references of details likely to be included should there have been legal input. Accordingly, I have given those references some weight.

Submission number (7)

In relation to medical evidence, I observe that in the letter which accompanied Mr Darko's application for an internal review he proposed that he provide RMS "with a doctor's report now and every 3-6 months after you issue me with my authority to drive as a condition".
Should Mr Darko have been represented by an experienced lawyer there may be a reasonable expectation that medical evidence that Mr Darko has been illicit-drug use free for some time would have been put in evidence. It is not something which would necessarily cross the mind of a non-lawyer without experience in these matters. Such evidence, if it existed, may well have been to Mr Darko's advantage. The fact is, no such evidence was put before the Tribunal.
I also observe that, although Mr Darko's proposal may at first instance seem reasonable, as far as I am aware, the Tribunal does not have the power to make such a conditional order.

Submission number (8)

I have commented above on what appears to be Mr Darko's lack of insight in several respects.
I observe that the criteria which clause 29 of the Regulations requires to be satisfied by Mr Darko does not include insight into criminal law in New South Wales. Clause 29 includes a requirement that the applicant successfully complete a relevant taxi-cab driver training course and pass an examination or assessment of certain matters at a level determined by the relevant authority.
RMS has not submitted that Mr Darko has failed to meet such criteria nor any criteria other than those referred to in the issues detailed above. Accordingly, I assume that Mr Darko has complied with all relevant criteria other than those issues.

The public interest versus private interests

Mr Darko requested that the Tribunal exercise compassion in its determination of his application having regard to his family circumstances.
In Mahommed Shamsuzzaman v Roads and Maritime Services [2015] NSWCATAP 62 the Appeal Panel said at [17] and [18]: The jurisdiction in this field is protective not punitive. In Khan v Roads and Maritime Services [2014] NSWCATOD 23 at [25] it was said, in terms which we would adopt, that: It was submitted that the applicant is a very simple and honest person. He supports his wife and four children and a parent. They are currently renting a house for $290 per week and they have no savings. The cancellation of his driving authority would create severe financial hardship for him and his family and was unreasonable and excessive. However, possible hardship to the applicant, or his family, cannot be taken into account in determining the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47]. Similarly, the purpose of a driver authority is to have the regulator (that is, the respondent, or on review the Tribunal) "attest" that a driver is of "good repute", is "fit and proper" to be a taxi driver, and has "sufficient responsibility and aptitude" to drive taxis. It is not about giving a driver another go." (emphasis added)
The objects of the Act are set out at s 4. Those objects include "…. to require the …. authorisation, by RMS, of …. drivers involved in public passenger services …. and …. to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services …."
I accept that the purpose of the Act is protective of the community. Accordingly, while Mr Darko's family situation is of substantial importance to him and his family, the legislative objects and the focus of the Tribunal in deciding whether to grant an Authority, are to ensure that the interests of the public take priority over personal interests of an applicant. Accordingly, the Tribunal's duty is not based on giving an applicant an opportunity to "prove his sincerity" or "give him another go".

Good repute and fit and proper

I have referred above to principles set out in Bond Media, in Re T and several other judicial and tribunal decisions applicable to a person's good repute, and the extent to which a person is fit and proper to hold certain licences.
Saadieh v Director General, Department of Transport [1999] NSWADT 68, in which Mr Wozniak appeared for the Respondent, was a matter with similarities to Mr Darko's application. In Saadieh, Hennessey DP, said 12. The issue in this case is whether, in the light of the responsibilities and expectations of a taxi driver, the applicant is a "fit and proper person" to hold a taxi authority. Being a "fit and proper person" includes being of "good repute." The respondent quoted Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393) in the following terms: A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession. . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 13. The case of Sakellis v Officer in Charge of Police, Paddington [(1968) 88 W.N. 541 was also quoted in support of the proposition that: "It would be difficult indeed to hold that a man who was convicted of breaking, entering and stealing could be regarded as a man of good character, even if it could be said that he was of good character at the present time." (at p 545 quoting Herron J in Ex parte Davis (1949) 50 SR (NSW) 158 at 167) 14. If the respondent is submitting that once a person has committed a dishonesty offence such as breaking, entering and stealing, he can never again be regarded as a person of good character (or in this case, "good repute") then I reject that proposition. If it were otherwise any conviction for a dishonesty offence would automatically prevent a person from re-applying for a taxi authority. The Director General has not interpreted the legislation in this manner, nor do I think it correct to do so. 15. Furthermore, I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute. Many applicants before the Tribunal are unrepresented. They do not understand, nor should they be expected to understand, that references or other evidence of their repute in the community would be useful in counteracting any evidence of bad repute which can be assumed on the basis of a criminal conviction. A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to be obtain or retain such an authority. ….
Hennessy DP found at [17] that there were several factors to be taken including: 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. 18. 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.
Applying these factors to Mr Darko's situation the main events in respect of which RMS expressed concern occurred 11 years and 6 years ago. Apart from these offences, traffic infringements, and the matters raised in submissions by RMS which have been dealt with above, there is no evidence as to Mr Darko's reputation other than the written references to which I have referred.
Mr Darko has admitted responsibility for the events which led to the convictions. In the period which has elapsed since the offences were committed there is no evidence of any repetition.
The evidence is that Mr Darko's circumstances have materially changed. He is in a long-term relationship and has two children for whom he is responsible. His referees attested to his current character and acceptance of responsibility.
While the proceedings have shown that Mr Darko does not have full insight into all aspects of his past actions, I find that he is well aware that actions have consequences and he no longer behaves like the 18-year-old he was when he committed the offence of robbery in company.
Mr Darko's evidence is that for over 4 years he has been free of illicit drugs. There is no contrary evidence before the Tribunal.
Mr Darko also gave evidence is that he has considerable experience working as a courier, driving and delivering freight all over Sydney. There is no evidence that he has committed any traffic infringements in the 4 years leading up to the hearing.
In the circumstances, I find that the likelihood of Mr Darko re-offending is low.
The Appeal Panel in AIC referred on several occasions to the decision in Murray v Department of Transport and Infrastructure [2010] NSWADT 295. The Panel said: 31. There are a number of leading cases in the field of professional discipline which lend support to the approach taken in Murray. Great care should be taken not to be unduly influenced by popular perceptions as to the wrongness of the conduct of concern when considering whether to deregister a licensee or renew a registration. 32. For example, the High Court has twice allowed a struck-off solicitor to return to practise within a short time after being imprisoned for a serious criminal offence unconnected with the practice of law: see A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310; and Ziems v Prothonotary of the Supreme Court of NSW (by majority with Dixon CJ and McTiernan J in dissent) [1957] HCA 46; (1957) 97 CLR 279. 33. In both cases the Court had regard to the isolated nature of the conduct, extenuating factors and the remorse of the offender. It also had regard to informed testimonials. In the 2004 case, the solicitor had been convicted and served a short term of imprisonment for sexual assault offences involving young girls who were the daughters, by a previous relationship, of a woman with whom he had formed a relationship and who he later married. …. 37. 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' ….

Decision and orders

Having regard to my above findings, relevant legislation and the above authorities, I am satisfied that Mr Darko is presently of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab and to be the holder of an authority for that purpose.
The correct and preferable decision of the Tribunal is that: 1. The Respondent's decision under review is set aside. 2. The Applicant's application for an authority to drive a taxi-cab is granted.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2017

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Judgment (26 paragraphs)

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Cases Cited (8)