CITATION: Morgan v Director-General, Ministry of Transport [2003] NSWADT 257 DIVISION: General Division APPLICANT PARTIES: David Noel Morgan RESPONDENT Director-General, Ministry of Transport FILE NUMBER: 033162 and 033163 HEARING DATES: 25/09/03 SUBMISSIONS CLOSED: 09/25/2003 DATE OF DECISION: 12/04/2003 BEFORE: Montgomery S - Judicial Member APPLICATION: Passenger Transport Act - public passenger vehicle - cancellation of authority - Passenger Transport Act - tourist service operator - grant of accreditation - public passenger vehicle - cancellation of authority - Tourist Service operator - grant of accreditation MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Passenger Transport Act 1990 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] Loye v Director-General, Department of Transport [2000] NSWADT 145 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165 McNamara v. Arnold - BC9502405 (Supreme Court of South CASES CITED: McNamara in Singh-v- Director General, Department of Transport [1999] NSWADT 96 Saadieh v Director-General, Department of Transport [1999] NSWADT 168 Singh-v- Director General, Department of Transport [1999] NSWADT 96 Stasos v Tax Agents' Board of NSW 21 ATR 974 Tand the Director of Youth and Community Services [1980] 1 NSWLR 392 APPLICANT REPRESENTATION: R O'Connor, solicitor RESPONDENT A Wozniak, solicitor ORDERS: 1 The decision of the Director General of the Ministry of Transport dated 3 June 2003 to cancel Mr Morgan's public passenger vehicle driver authority is set aside; ; 2 The decision of the Director General of the Ministry of Transport dated 10 April 2003 to refuse Mr Morgan's application for accreditation to operate a Tourist and Charter Service is set aside; and ; 3 Mr Morgan's application for accreditation to operate a Tourist and Charter Service is remitted for reconsideration by the Director-General. History of application 1 On 25 March 2003 Mr Morgan applied to Transport NSW for accreditation to operate a Tourist and Charter Service. On 10 April 2003 the Director General's delegate refused this application on the basis of Mr Morgan's criminal record and Mr Morgan's failure to declare that record in his application. 2 Also on 10 April 2003 the Director General issued a Notice to Show Cause to Mr Morgan with respect to whether Mr Morgan is a fit and proper person to hold a public passenger vehicle driver authority. The Notice to Show Cause referred to Mr Morgan's criminal record and Mr Morgan's failure to declare that record in his application for the driver authority. 3 Mr Morgan's solicitor sought an internal review of the decision to refuse the application for accreditation and made representations in regard to that application and also in regard to the Notice to Show Cause. 4 The decision to refuse the application was affirmed on an internal review. On 3 June 2003 that decision was also taken to cancel Mr Morgan's public passenger vehicle driver authority. 5 On 19 June 2003 Mr Morgan lodged with the Tribunal an application for review of each of the Director General's decision. Issues and legislation 6 Section 12 of the Passenger Transport Act 1990 ("the Act") gives the Director General discretion to grant authorities, having regard to the purpose of that authority. Sub-section 11(2) of the Act sets out the purpose of an authority in the following terms: "11 Authorities (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated, and (ii) in accordance with law and custom." 7 Section 52(1) of the Act provides for a review of the Director General's decision in the following terms: "52 Applications to Administrative Decisions Tribunal (1) Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation." 8 An administrator, in this case the Director General's delegate, has a wide discretion to grant or refuse an authority or to cancel an authority but the decision must be made in the context of the responsibilities and community expectations of drivers. In the context of this case the responsibility to be honest is of primary importance. It is the responsibility of an applicant for a Driver Authority or an Accreditation to provide honest answers to questionnaires or other inquiries made by the Ministry. 9 It is common ground that on 9 January 1998 Mr Morgan was convicted of "Obtain Benefit Not/Part Payable". It is also common ground that in his original application for a Driver Authority and in his application for accreditation Mr Morgan declared that he had not been convicted of any civil or criminal offences within the last ten years. He also failed to declare the convictions in his application for the renewal of his Driver Authority dated 20 December 1999. 10 The issue in this case is whether, in the light of Mr Morgan's convictions, the responsibilities and expectations of an authorised driver, and an Accredited Tourist and Charter Service operator and Mr Morgan's failure to declare the convictions, he is nevertheless a "fit and proper person" to hold a driver authority and accreditation. Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] said that: "The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration." 11 The Tribunal must decide whether the Director General's delegate made the correct and preferable decision having regard to any relevant factual material and any written or unwritten law. In determining an application the Tribunal may affirm, vary or set aside the decision: section 63 Administrative Decisions Tribunal Act 1997) The evidence 12 Mr Morgan was called as a witness and was cross-examined. The Director General did not call any witnesses but relied on the contents of the Department's files. 13 Mr. O'Connor provided written submissions to the Director General in support of Mr Morgan's Application for Internal Review and with respect to the Notice to Show Cause. Mr. O'Connor submissions stated: "The appearance by the applicant for review (David Noel Morgan) before the Local Court at Newcastle on 9 January 1998 was the culmination of a lengthy period of dealings with the Department of Social Security in respect of the payment of certain benefits. For a considerable period prior to being summonsed in respect of those offences Mr Morgan was in correspondence with the Department as to whether or not the benefits paid to him that were the subject of the charges were in fact properly payable. Ultimately the Department determined that the benefits were not payable and as a consequence proceeded to summons Mr Morgan. Subsequently a plea of guilty was entered and quite substantive submissions made in mitigation. Mr Morgan left the Local Court at Newcastle on 9 January 1998 aware that he was required to pay reparation to the Department and required to perform community service but somewhat unsure as to whether the requirements to pay reparation and perform community service were as a consequence of a conviction or a non-conviction pursuant to Section 556A of the Crimes Act (as then enacted). Mr Morgan's uncertainty in that regard was as a result of discussions with his legal representatives as to the possibility of the Court considering and his legal representatives making submissions for the Court to deal with the matter under Section 556A of the Crimes Act. Mr Morgan's belief that his appearances before the Local Court at Newcastle on 9 January 1998 had resulted in a non-conviction under the then relevant legislation were confirmed by two subsequent situations where he had cause to have access to printouts issued by the New South Wales Police Service of his criminal history. The first such instance was when in mid 1999 Mr Morgan made application to be accredited to drive buses for the Sydney Olympics (that were to be held in the latter part of 2000). As part of the requirements for that application Mr Morgan made application to the New South Wales Police Service for a printout of his criminal history which was then attached to his Application for Accreditation to drive buses at the Olympics. That printout of his criminal history did not include any mention of the January 1998 convictions at the Newcastle Local Court. Unfortunately Mr Morgan did not retain a copy of the printout attached to his Olympics Application but the content thereof was known to him at the time that he made his application to renew his Driver Authority on 20 December 1999 and hence the conviction was not included. The second instance where Mr Morgan had access to his New South Wales Police Service Criminal History was when he appeared before the Local Court at Grafton in December 2001 in respect of an allegation of Intimidation where the victim of that offence was a person who had assaulted his teenage daughter. That charge was ultimately dealt with by the Local Court at Grafton in December 2001 and resulted in the charge, although proved, being dismissed pursuant to Section 10 of the Crimes (Sentencing Procedure) Act 1999, the legislation which was enacted to replace the old Section 556A of the Crimes Act. When that matter was dealt with a New South Wales Police Service Criminal History printout was provided to Mr Morgan's legal representatives (and in turn shown to him) and ultimately tendered to the Court. A copy of that printout (obtained by a Police Officer from the New South Wales Police Service records at 8.36 am on 12 November 2001) is enclosed and you will see shows no detail of the 9 January 1998 conviction in the Local Court at Newcastle. This printout further reaffirmed Mr Morgan's belief that his appearance before the Local Court at Newcastle in January 1998 resulted in a similar non-conviction and hence he did not declare either the Grafton Local Court December 2001 charge matter or the Newcastle Local Court January 1998 summons matter in his subsequent Application for Accreditation dated 11 March 2003. Accordingly we respectfully submit on our client's behalf that the failure to declare the January 1998 convictions was based upon information and documentation (the two New South Wales Police Service Criminal History printouts) that our client should have been able to rely and upon which it was quite reasonable to rely in making his declarations. As the declarations were not knowingly false and were quite reasonably based. We submit that the inaccuracy of those declarations is not a basis for either refusing our client's Application for Accreditation or either cancelling his Driver Authority, suspending same or imposing any conditions upon that authority." 14 Mr Morgan gave evidence that was consistent with those submissions. His case is essentially that he concedes the convictions and the failure to disclose those convictions but that in his particular situation the failure to disclose is explicable. In support of that submission he referred to the fact that he had initially declared a conviction in applying for a licence as a Bookmaker's Clerk but subsequently ceased making the declaration. 15 On 30 May 1998 Mr Morgan applied for a licence as a Bookmaker's Clerk. The application form contains a number of questions relating to the applicant's background and experience. Question 12 of that form asks: "12. Have you, in the last 10 years, in NSW or elsewhere, been convicted of an offence, under your own or any other name?" 16 The part of the form that provided for the Applicant's answer to Question 12 was circled marked "Yes". Next to this are written the words "family allowance overpayment Social Security" Mr. Morgan signed the application form. 17 Mr. Morgan made a similar declaration in the renewal forms dated 24 May 1999 and 8 June 2001 however he gave a negative response to a similar question on the renewal form signed on 15 July 2002. When asked in cross examination why he did disclose his convictions on the earlier application forms relating to his Bookmaker's Clerk Licence Mr Morgan said that he had undertaken community service work for the race club and so they already knew about his community service order. He had made the initial declaration and then continued to declare it because he thought that it would appear irregular if he stopped declaring the matter. He adopted a different approach in 2002 because he no longer believed that he had convictions recorded against him. He said that he knew the penalties that had been imposed and had complied with the Court's orders but that he mistakenly thought that no conviction had been recorded. 18 Mr Morgan agreed that he had not disclosed the conviction in his driver authority renewal application dated 20 December 1999. In response to the question "Have you been convicted of any criminal offences (not traffic offences), which you have not yet told us about, since your authority was issued or last renewed, or do you have nay criminal charges pending?" Mr Morgan had answered "No". He said that at the time he made that declaration he had obtained the New South Wales Police Service printout of his criminal history for his Application for Accreditation to drive buses at the Olympics. That printout of his criminal history did not include any mention of the January 1998 convictions at the Newcastle Local Court. Prior to obtaining that report he believed that he had a conviction recorded but on receipt of the printout of his criminal history he formed the view that a conviction must not have been recorded. 19 Mr Morgan also put in evidence several documents that are relevant to the issue of his repute. These include a reference dated 13 December 2001 from Ms. Dianne Casey of Casey Coaches Grafton Pty Ltd; a letter in support of Mr Morgan's application from Mr Steve Cansdell, MP Member for Clarence; a reference dated 6 June 2003 from Mr Michael Imeson J.P.; a letter of introduction to Mr. Morgan dated 6 June 2003 from Mr Mark Shepherd, CEO of the Grafton District Golf Club; and a letter of gratitude and appreciation from Mr Peter Jones, Chief Executive Officer of Bus 2000 Ltd, for services that Mr. Morgan provided in relation to the Sydney 2000 Olympic and Paralympic Games. 20 The Director General did not call any witnesses but relied on the contents of the Department's files. The driver authority file makes references to complaints against Mr Morgan in relation to his work as a bus driver but Mr Wozniak indicated that no reliance is placed on those complaints. The Director General's case is as set out in the reasons for decision provided to Mr Morgan. The reasons for refusal of the accreditation application states: "The Department relies on the following material to refuse your application for accreditation . You have declared in your application for accreditation that you have not been convicted of any civil or criminal offences within the last ten years. You also failed to declare the offence/s in your application for the renewal of your Driver Authority dated 20th December, 1999. Evidence has been received that you have been convicted of 4 counts at Newcastle Local Court on 9th January 1998 of, "Obtain Benefit Not/Part Payable". The offences dated between 6th April 1995 and 5th September 1996. The results of the convictions were:- "All charges: convicted. Perform 200 hours Community Service. Pay Reparation $5,761.79." 21 Similar reasons are provided in relation to the decision to cancel Mr Morgan's driver authority. 22 Mr Wozniak referred to the Probation and Parole Service pre-sentence report prepared in relation to the Local Court matter. He submitted that the report reveals that Mr Morgan had an alcohol problem. The Department has a major concern with regard to bus drivers who have alcohol issues. He said that had Mr Morgan declared this conviction, the Department could have carried out inquiries about that matter. 23 Mr Wozniak submitted that honesty is an important consideration in determining an application for a driver authority or accreditation. He argues that Mr Morgan's convictions were for dishonesty offences. They therefore reflect his bad repute. The issue then becomes one of whether that dishonesty has continued. There has been a time lapse of several years since Mr Morgan was convicted of the dishonesty offence. Accordingly it is appropriate to consider whether Mr Morgan has reformed. In doing so the Tribunal can consider evidence relating to Mr Morgan's conduct since the convictions and any evidence of his character. In this regard, Mr Morgan's failure to disclose his convictions is of tremendous importance. 24 Mr. Wozniak urged caution in attributing weight to the testimonials provided on behalf of Mr. Morgan. He submitted that the testimonials did not specifically address Mr. Morgan's offences or the issues with which the Tribunal is concerned, and are therefore of little use. In support of that submission he referred to the views expressed by Judicial Member Rice in Loye -v- Director General, Department of Transport [2000] NSWADT 145. 25 Mr. Wozniak argued that in the circumstances, the Tribunal could not conclude that Mr Morgan is of good fame from those references. Findings 26 As indicated above the Director-General's delegate formed the view that Mr. Morgan is not of good repute and in all other respects a fit and proper person to drive a public passenger vehicle. The decisions under review were based on that view. The issue for determination by the Tribunal is whether the Director-General's decisions are the correct and preferable decisions. 27 In this application, I have considered all of the evidence and the oral argument presented before the Tribunal. In particular I have had regard to the following issues: · Mr. Morgan's record of convictions and his admissions in relation to the convictions; · Mr. Morgan's failure to disclose those convictions in his applications; · Mr. Morgan's oral evidence before the Tribunal; · the documentary evidence before the Tribunal; · Mr. O'Connor's written and oral submissions; · Mr. Wozniak's submissions; and · the testimonials provided on Mr. Morgan's behalf. 28 Pursuant to section 11(2) of the Act, an authority would attest that Mr. Morgan is to be considered: · to be of good repute (section 11(2)(a)) · to be in all other respects a fit and proper person to be the driver of a public passenger vehicle (section 11(2)(a)), · to have sufficient responsibility to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (section 11(2)(b)(i)), · to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom (section 11(2)(b)(ii)), · to have sufficient aptitude to drive a public passenger vehicle in accordance with the conditions under which a public passenger service is operated (section 11(2)(b)(i)), and · to have sufficient aptitude to drive a public passenger vehicle in accordance with law and custom (section 11(2)(b)(ii)). 29 It is clear from the correspondence and the Department's file that the Department considers that Mr. Morgan fails the requirements of section 11(2)(a). There is evidence that could support a contention that Mr. Morgan could be considered not to be a fit and proper person to be the driver of a public passenger vehicle. It is necessary to determine what weight should be given to that evidence. 30 If an applicant for an authority is of good repute then it must also be found that "in all other respects", that is, in all respects other than their reputation, the applicant is a fit and proper person to be the driver of a public passenger vehicle before an authority is issued. Whether a person is of good repute is an issue related to but different from whether a person is fit and proper for a particular purpose. Being considered to be of good repute is a threshold status in section 11(2). If a person is not of good repute there is no need to consider whether they are a fit and proper person to be the driver of a public passenger vehicle. 31 Mr. Morgan does not fail to be of good repute simply because of convictions. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal made clear at paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to obtain or retain an authority. 32 Repute is what others think. 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: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393. 33 Whether a person's history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person. 34 The Department has identified convictions and Mr. Morgan must show that in spite of that history he enjoys a good reputation. Mr. Morgan gave some evidence as to his reputation however his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. To that end, he has produced a number of testimonials that attest to his reputation and character. 35 A witness's opinion of Mr. Morgan may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. With the exception of the reference provided by Mr Cansdell, the testimonials do not make reference to the author's knowledge of any of the circumstances that have lead to the decision to cancel Mr. Morgan's authority or to the refusal of his application. Nor do they make any direct reference to these proceedings. They cannot therefore be seen as positive estimations in spite of knowledge of Mr. Morgan's blemished history. It follows that the weight to be given to those testimonials in assessing Mr. Morgan's reputation must be less than it would be if the witness's knowledge of the relevant circumstances were clear. 36 Mr Cansdell's reference states: "From my knowledge of David and the information I am aware of, I believe David was of the sincere understanding that he had done everything according to the RTA guidelines and that he had no recorded criminal conviction." 37 This suggests to me that Mr Cansdell had some degree of knowledge of these proceedings and the issues under consideration. 38 In my opinion the other testimonials also warrant some weight despite their failure to indicate the referee's knowledge of the relevant circumstances. This is because they allow inferences as to Mr. Morgan's reputation to be drawn from evidence of positions he holds in the community. For example, inferences can be drawn from the fact that Mr. Morgan was elected to the Grafton District Golf Club Board of Directors in December 2002. 39 Having weighed the evidence that is before me I am satisfied that Mr. Morgan is to be considered to be of good repute. 40 Mr Wozniak submitted that Mr Morgan's lack of disclosure of his convictions contributes to determining his lack of fitness and propriety. Mr Wozniak cited the decision of McNamara v. Arnold - BC9502405 (Supreme Court of South Australia per Mathieson, J., 26 October 1996) as authority for the proposition that a failure to disclose offences casts a grave doubt over fitness and propriety. However, as noted in the passage from Australian Broadcasting Tribunal v Bond referred to above, it has been recognised that being a "fit and proper person" is not capable of any objective definition. 41 The Deputy President of this Tribunal followed McNamara in Singh-v- Director General, Department of Transport [1999] NSWADT 96. At paragraph 27 of her decision she stated: "27.The presence of dishonesty was taken very seriously by the Supreme Court of South Australia in McNamara v Arnold (unreported decision of the Supreme Court of South Australia, 26 October 1995 BC9502405 at 10). Matheson J said that: "In this matter, even if the Tribunal merely looks at the [appellant's] dishonest answer on the application form, this conduct brings into question the honesty of the [appellant]. Honesty is a quality implicit in the notion of a fit and proper person." 42 A person's reputation and character is not immutable. In Stasos v Tax Agents' Board of NSW 21 ATR 974 the Federal Court considered the meaning of "fit and proper" in the general context of persons holding specified offices or vocations as well as in the specific context of Tax Agents. At paragraph 41 the Court noted that: "Where the issue is whether a person, who has been guilty of misconduct is at a time somewhat after that misconduct a fit and proper person to exercise a particular occupation carrying with it privileges and responsibilities, it will be relevant whether that person has understood the error of his ways. Failure so to do would, of itself, demonstrate his unfitness". 43 Mr Morgan's evidence is relevant to this issue and some indication can also be obtained from the Probation and Parole Service pre-sentence report prepared in relation to the Local Court matter. That report is also useful in giving some insight as to factors that influenced Mr Morgan's conduct and how those factors had varied. The pre-sentence report states: "FACTORS RELATED TO OFFENDING Alcohol & Other Drugs (AOD) The offender stated that his consumption of alcoholic liquor was excessive at the time of committing these offences. His wife firmed that he has since taken stock and now drinks in moderation. On this basis there is no indication for referral for AOD counselling. Other drugs did not emerge as a problem. Gambling The offender advised that due to his financial problems and excessive alcohol consumption he was gambling excessively at the time. He advised that he has since ceased excessive gambling. Financial Situation The offender stated that he had been financially pressed at the time of committing the offence due to holding a mortgage with a mortgage provider known as "Homefund". The media widely reported that mortgage scheme causing many mortgagees severe financial stress and the scheme was subject to NSW Government interventions in an effort to address the problems experienced by mortgagees. Attitude to Offence The offender appeared contrite. During interview he stated, "I've done the wrong thing." He also stated that he has repaid to the DSS almost half of the monies owing. SUMMARY & SENTENCING OPTIONS Financial difficulties, alcohol abuse and gambling appear to have been the pressures the offender succumbed to when he committed these offences. Although recent unemployment due to the closure of his place of his employment again sees him financially pressured, the offender appears to have resolved his problems with alcohol and gambling." 44 Mr. Wozniak referred to various Tribunal decisions which have applied the test in respect of a person being of fit and proper character to hold a driver's authority defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the test was stated to be: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi". 45 In the present circumstances that test can appropriately be applied with the relevant member of the public travelling in the passenger vehicle driven by Mr. Morgan. The relevant question is therefore whether the travelling public, including school students or their parents, knowing of Mr. Morgan's record, would object to Mr. Morgan as the driver of the bus? 46 In Saadieh v Director General, Department of Transport [1999] NSWADT 68, the Tribunal's Deputy President set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors were: · the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; · the nature, seriousness and frequency of any complaints made against the applicant; · the applicant's driving record; · the applicant's reputation in the community; and · the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 47 The Deputy President also noted in that case that in assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time; and any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 48 The Probation and Parole Service pre-sentence report addresses some of these factors. Mr. Morgan's evidence addresses other factors. 49 The nature, seriousness and frequency of Mr. Morgan's offences are beyond question. However, a significant amount of time has passed since the convictions, and there are no further convictions for dishonesty in that period. The factor that suggests that there could be ongoing dishonesty and therefore that Mr. Morgan might re-offend is his failure to reveal his convictions in his applications. The circumstances under which Mr. Morgan concealed the convictions is therefore of considerable importance. 50 I agree with Mr. Wozniak's argument that Honesty is a quality implicit in the notion of a fit and proper person. One important factor in determining whether Mr. Morgan has sufficient responsibility is whether he would be likely to be dishonest in his dealings with passengers or the Department if allowed to retain his authority. The factors that tend to indicate that he would be dishonest must be weighed against those that tend to indicate that he would not. 51 The Probation and Parole Service pre-sentence report indicated that Mr. Morgan appeared contrite. I have formed the same view. I found Mr. Morgan to be a credible witness who provided a plausible explanation for how he formed the view that he need not disclose his convictions. I also found plausible his explanation as to why he disclosed those convictions in his application for a licence as a Bookmaker's Clerk but subsequently ceased making the declaration. 52 The circumstances of this matter are particularly unusual. While Mr. Morgan has failed to disclose his convictions, I am not satisfied that he did so out of dishonesty. I am satisfied that he genuinely believed that he had no convictions recorded against him and therefore that he was not required to disclose them. Consequently, I make no adverse inference from the fact that he did not disclose the convictions. 53 As noted, the degree of risk that an applicant will re-offend or will not be honest in his dealings with passengers and/or the Department depends on several factors. The factors that must be weighed up in this case are finely balanced. After weighing those factors I have reached the view that the likelihood that Mr. Morgan will re-offend is remote. Accordingly, it is my view that each of the Director General's decisions under review should be set aside. 54 There is no evidence before me on which I can determine whether Mr. Morgan has satisfied all the other requirements for accreditation to operate a Tourist and Charter Service. It is therefore prudent to remit the matter for reconsideration by the Director General. I recommend that in reconsidering this matter the Director General note my views that Mr. Morgan is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. ORDERS 1. The decision of the Director General of the Ministry of Transport dated 3 June 2003 to cancel Mr Morgan's public passenger vehicle driver authority is set aside; 2. The decision of the Director General of the Ministry of Transport dated 10 April 2003 to refuse Mr Morgan's application for accreditation to operate a Tourist and Charter Service is set aside; and 3. Mr Morgan's application for accreditation to operate a Tourist and Charter Service is remitted for reconsideration by the Director General. 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.