Many people in the emergency services will seek to rely on their service to demonstrate their standing or skills.  Leaders may be asked to write a reference in order to support applications and, in some cases, to support a member who is appearing before court.

The issue of a person’s ‘good credit’ can arise in two circumstances in criminal cases. A defendant may want to raise his or her good standing to argue ‘I’m not the person who would commit this sort of offence – and the jury (or judge) may have a doubt or be more inclined to believe me if they know the sort of person I am’.  This is a dangerous tactic as raising credit as a defence does allow the prosecution to explore all of one’s background and bring up otherwise irrelevant material.  But in some cases it is appropriate.

The more common recourse to a person’s credit and standing is when they are being sentenced, having entered a plea of guilty or having been found guilty after a trial. Then the argument is that the person’s good standing may demonstrate that this offence is out of character and they are unlikely to offend again, and when balancing the offending against their previous good conduct, a sentence toward the more lenient end of the scale is warranted.

But what should be in a reference?  Whether a person want’s a reference in order to show  that they should get a licence or some other authority, or they want to put it before a court, it is important that the reference does not read like it’s been written to help a person get a job. It has to refer to the reason it has been written and address the issues of concern. Where the person has a criminal past that is most important and was an issue discovered by a former NSW firefighter in Ashford v Roads and Maritime Services [2017] NSWCATOD 170.

Mr Ashford applied for an authority ‘to drive public passenger transport vehicles’ – in particular a bus.  In 2008 Mr Ashford had been convicted of a number of drug related offences and sentenced to 2 and ½ years imprisonment, with a non-parole period of 12 months.  Upon his release from prison he appeared to be an exemplary citizen and served as NSW Fire and Rescue retained firefighter for 5 years.

The Roads and Maritime Services (RMS) declined to issue a public transport authority on the basis of Mr Ashford’s criminal history. The RMS determined that Mr Ashford did not meet the tests for the issue of a public transport authority as required by the Passenger Transport Act 1990 (NSW).  In particular the RMS said that Mr Ashford was:

  1. Not a fit and proper person to hold a public transport authority; and
  2. Not of good repute.

Mr Ashford appealed, first through the RMS’ internal processes and then to the NSW Civil and Administrative Tribunal.  In making his appeals he tendered a number of reference that spoke to his good character.  This included a reference from the NSWF&R Station Commander who attested to Mr Ashford’s exemplary service as a firefighter.  Unfortunately none of the reference spoke to the fact that Mr Ashord was applying for a public transport authority and none of them made mention of his prior criminal history.

With respect to being a ‘fit and proper’ person, the Tribunal said that the fact of a prior conviction does not necessarily mean that a person is not a fit and proper person to hold a licence.  The issue of what makes a person ‘fit and proper’ does not lend itself to precise definition.

Senior Member Robertson said (at [19]):

… In Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 the ACT Administrative Appeals Tribunal Professor LJ Curtis, President put the test to be applied in relation to “fit and proper character” in the case of taxi driver licensing in this way, at [12]:

“One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant’s criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi.”

Senior Member Robertson found that Mr Ashford was a fit and proper person to hold a public transport authority. He said (at [22]):

In determining whether Mr Ashford is a fit and proper person to hold an authority to drive buses under the Passenger Transport Act, I would take into account that it has been 7 years since Mr Ashford’s sentence concluded and nearly 9 years since he was released from prison and that he has apparently been a law-abiding citizen since that time with no further convictions or charges. I would also take into account that he has been working in that time as a fireman and a delivery driver and apparently has had a clear driving record since his release from prison. I recognise that Mr Ashford’s offences were serious and resulted in his serving a prison sentence… A reasonable person with whom Mr Ashford comes into contact, including the parents of children whom he might be called upon to drive, would recognise the possibility, indeed likelihood, of rehabilitation.

The sticking point was Mr Ashford’s ‘repute’ or reputation.  The tribunal relied (at [11]) on the decision in Loye v Director General, Department of Transport [2000] NSWADT 145 where it was said that a criminal history does not necessary prove that a person has a bad reputation.

… an assessment of repute is a matter for the Tribunal, weighing all the evidence, and not determined only by the existence of a criminal history.

This Tribunal has on a number of occasions invoked the authority of Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 to the following effect:

A person’s reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession (per Waddell J at page 393).

… Previous convictions are relevant to this extent:

They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are acted on by people generally as the best guide to his reputation and standing (Cross on Evidence 6th Aust ed 2000 Sydney, at para 19165 citing Goody v Oldhams Press [1967] 1 QB 333; [1966] 3 All ER 369 concerning defamation cases)

… As a matter of law, a criminal history is not evidence of bad repute, but creates a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation.

As a matter of fact in the particular case, the criminal history is relevant to the extent that it is known in the community, and that it bears on the person’s reputation in that community…

There is no saying what effect knowledge of the criminal history might have on the estimation of a person’s character, although a positive estimation in spite of knowledge of a criminal history would ordinarily weigh in favour of the person. Whether the person’s criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute.

The Department having identified a history of convictions, the applicant must show that in spite of that history he enjoys a good reputation. Evidence of a person’s repute comes from people who can say what a “specific group of people” think of the person. As well, a person may hold a position in the community from which it is reasonable that a person is well regarded. It is necessary to receive evidence relating to the estimation of those groups referred to in Re T and the Director of Youth and Community Services above. The probative value of that evidence will be the greater the more current it is.

In essence a person can have a good reputation even with a criminal history; but if the people don’t know of that criminal history their assessment of the person’s reputation will be of less value.

In this case all of Mr Ashford’s referees spoke of his good character, but none addressed his criminal history. None said that they thought he had a good reputation even though he had been served time in gaol for drug offences.  In concluding Senior Member Robertson said (at 14):

Although each of the referees speaks highly of Mr Ashford and his character, none of the references include any suggestion that the referee was aware of Mr Ashford’s conviction. Without evidence that the referees were explicitly aware of Mr Ashford’s conviction and, despite that knowledge, attested to his good reputation, with knowledge that that attestation is to be tendered in the Tribunal for the purpose of establishing that Mr Ashford has a good reputation, the references are of limited value in assessing Mr Ashford’s reputation.

The Tribunal found that the onus was on Mr Ashford to show that a “specific group of people” thought highly of him even though he had those convictions. He failed to do that so failed to overcome the ‘presumption that the person has, among those who know of that history, a bad reputation’ and so the application for a public transport authority was again declined.

Lesson learned

If you are going to ask for a reference make sure that your referee knows why you want the reference and what you intend to do with it.

If you are asking for a reference to be put before a court make sure the reference is addressed to the court (not ‘to whom it may concern’) and it addresses the reason why the person is before the court.  In this case the referees needed to say words to the effect that they knew Mr Ashford was applying for a public transport authority, they knew of his criminal history and even so they were prepared to attest to his good character.

If you are seeking a reference to support a plea in mitigation, the reference has to be addressed to the court and indicated that the referee writer knows the offences for which you are to be sentenced. The referee must not say words to the effect of ‘I don’t think he or she committed the offence …’, or worse, that ‘he or she did not commit the offence’.  When a reference is being used for sentencing the person has either entered a plea of guilty or been found guilty after a trial.  The referee writer has to accept that the person is guilty.  IF they don’t the reference is unhelpful. IF they assert that the person ‘did not’ commit the offence, then the referee writer should have been giving evidence at trial.

Failure to have a reference that explicitly addresses why it has been given and which addresses the issue that needs to  be addressed, in Mr Ashford’s case, his reputation amongst the community given his criminal record, then they serve little purpose.