Bedi v Director General, Department of Transport

[1999] NSWADT 51

CITATION:	Bedi -v- Director General, Department of Transport [1999] NSWADT 51
DIVISION:	General
APPLICANT:	Devinder Kumar Bedi
RESPONDENT:	Director General, Department of Transport
FILE NUMBER:	993006
HEARING DATES:	03/31/1999
SUBMISSIONS CLOSED:	05/05/1999
DATE OF DECISION:	30 June 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Passenger Transport Act 1990
APPLICATION:	Review of decision to cancel public passenger vehicle authority -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: J Rigg, Solicitor Respondent: P Culbert, Solicitor, Department of Transport
ORDERS:	1. Decision under review affirmed

1 On 17 December 1998 the Director-General, Department of Transport (‘the administrator’), by way of a decision made by a delegate, cancelled the public passenger vehicle driver authority AC5721 held by Devinder Bedi (‘the applicant’). That authority permitted him to drive taxi-cabs and to drive buses. On 7 January 1999 the applicant applied to the Tribunal for review of the decision. The hearing was held on 5 February 1999 and 31 March 1999. Further written submissions were filed by the applicant on 14 April 1999 and by the administrator on 5 May 1999.

2 Drivers’ authorities are issued under Division 2 of Part 2 of the Passenger Transport Act 1990, No.39 (‘the Act’). Section 11 provides:

“11. (1) A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division.


Penalty: 100 penalty units.

(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;

(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 public passenger service is operated;

(ii) in accordance with law and custom.

(3) The regulations may create categories or grades of authority.”

3 The decisions to cancel were made under s.14 which provides:

“Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person’s authority.”

4 The decision in issue is a reviewable by the Tribunal: the Act, s.52; Administrative Decisions Tribunal Act 1997 (‘the Tribunal Act’), s.8. The Tribunal’s review jurisdiction in respect of this class of decisions commenced on 1 January 1999: Govt Gaz (24 December 1998) 9948. The jurisdiction was previously exercised by the Local Court.

5 The Tribunal Act s.63 specifies the responsibilities of the Tribunal:

“ 63 Determination of review by Tribunal

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(a) to affirm the reviewable decision, or

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

6 The applicant was first issued with a taxi driver authority on 5 July 1991. The bus driver authority was issued on 14 May 1997. Both types of authority form part of the one overall public passenger vehicle authority, AC 5721.

7 By notice dated 2 November 1998 the administrator called on the applicant to show cause why his authority should not be suspended or cancelled. The reasons given by the administrator were that:

“The Department can no longer attest that you have the responsibility and aptitude to drive public passenger vehicles because of behaviour that you have displayed by being convicted as follows:

03/09/97 Burwood Court

Fail to Appear : Convicted and Sentenced Fixed Term 7 days

Assault OABH [occasioning actual bodily harm] : Convicted and Sentenced Fixed Term 5 months.”

8 As can be seen, the administrator relied in taking action on advice that it had received regarding the imprisonment of the applicant for a serious offence involving offence. The advice was not complete.

9 The offence occurred on 5 August 1996. Following the decision of the Local Court on 3 September 1997 which is referred to in the above statement, the applicant appealed against both the conviction and the sentence. On 12 December 1997 the District Court (Judge Naughton) confirmed the conviction and, after giving a warning that was not acted on, imposed a substantially increased sentence of 16 months, with a minimum term of 12 months (less 16 days for time already served). The applicant became eligible for release on parole on 26 November 1998, and was released on that date.

10 The increase in the sentence of imprisonment from 5 months to 16 months is an indicator of the Court’s concern over the gravity of the assault. The victim was the applicant’s wife, Jvoti Bedi. The injuries she suffered were very serious. The District Court accepted the evidence of Dr Vincent Wong of Auburn Hospital who treated the victim after the assault and recorded the following injuries: ragged lacerations to face (adjacent to right ear); approximately 1.5cm laceration to left palm; fracture of distal third of right ulna (the forearm), with almost full width anterior displacement of the distal fragment; undisplaced fracture of nasal bones; extensive bruising to left deltoid region (shoulder) and to lateral aspect of left thigh; numerous skin abrasions at the following sites: right forehead; both scapula regions; posterior left loin region; both buttocks; both knees, left knee and left leg. The assault occurred after the applicant came home intoxicated and was reproved by his wife who had phoned his friend with whom he had been drinking to complain. Judge Naughton made the following findings as to the facts:

“An argument ensued between the [applicant] and his wife, Mrs Bedi. The [applicant] became violent and assaulted Mrs Bedi occasioning actual bodily harm to her in what was a sustained frenzied attack of a very violent kind. In assaulting his wife the appellant attacked her in an uncontrolled manner including hitting her with the hammer [described elsewhere in the judgment as a “large and heavy steel headed claw hammer with wooden handle”] … . Mrs Bedi was seriously injured by the appellant’s assault.”

11 His Honour then described the injuries, as noted above. Mrs Bedi spent 12 days in hospital. In his sentencing observations Judge Naughton drew attention to the seriousness of the assault and aggravating factors - the victim being his wife, and the presence in the home of the two children, then seven and five. His Honour also found beyond reasonable doubt that the applicant’s wife “remained terrified of him”.

12 A clinical psychologist’s report relating to the applicant was tendered in these proceedings. The report of the psychologist, Dr Tom Jones, was founded on a 90 minute interview conducted on 27 January 1999 and upon psychometric testing of the applicant. It reported the applicant as indicating that his relationship with his wife was generally very good, claiming that the assault had been an isolated incident. He is reported as saying that she had visited him with maximum frequency allowed by prison authorities.

13 In the consultation with the psychologist the applicant admitted that he was responsible for the assault. Before the Local and District Courts he had denied the assault, with his wife giving evidence in the District Court that her injuries had been self-inflicted which the Court found to be lies.

14 His psychologist also reported that he regarded the assault as not excusable, and that he deeply regretted his actions. He also said that he had totally abstained from alcohol while in prison and since his release. Dr Jones’ conclusion is that the assault is best understood as having been an isolated incident occurring in circumstances of domestic conflict, precipitated primarily by excessive consumption of alcohol. He did “not think that his assaultive behaviour was part of a general pattern of aggressiveness.”

15 As to the relevance of his behaviour towards the relationship with the public Dr Jones made the following observations:

“I do not think that the fact that he has been violent towards his wife on 5 August 1996 indicates that there is a significant risk that he would act violently towards a taxi passenger. Further, I find his statement that he no longer drinks alcohol to be plausible, and think it likely that so long as he continues to abstain from alcohol, he is unlikely to offend again even in a domestic context.”

16 The applicant gave oral evidence at the hearing. He accepted responsibility for his conduct. He acknowledged that the assault was his fault alone. He insisted that the offence was his “first and last” offence.

17 Cross-examination highlighted the applicant’s history of prevarication in relation to the circumstances of the assault, including as to such matters as the amount he had to drink. Also highlighted were the consistent representations made by his wife, trivialising or denying the events. The applicant acknowledged that he had lied about these events in the past. He acknowledged that he must have broken her arm with the hammer, though he displayed no specific recollection as to the details of the assault.

18 Attention was also drawn to the applicant’s letter in response to the notice to show cause. In that letter dated 23 November 1998 the applicant presented a version of the events of 5 August 1996 which claimed that he was innocent, and appeared to attribute blame for the events to erratic behaviour by his wife said to be connected with mental problems deriving from a serious car accident in which she had been involved. He likened his situation to the position of the “Lord Jesus”, who was once sentenced though innocent. He also blamed the police for charging him.

19 He acknowledged under cross-examination that he had not mentioned that the letter of 23 November 1998 was written from inside prison. Other instances of prevarication highlighted in cross-examination related to the contents of the probation report prepared for his Local Court appearance (statements as to unemployment) and failure to disclose in his application for a bus drivers authority in March 1997 that he had charges pending in relation to the assault.

20 The administrator submitted in relation to this evidence that the applicant is prepared “to say or write whatever is necessary to secure and maintain his authority to drive public passenger vehicles” (written submissions dated 5 May 1999). The administrator also referred to the observations of Judge Naughton which had not been available when the applicant gave evidence. The administrator submitted that the applicant’s evidence in relation to contrition should not be accepted on the basis of his propensity for dishonesty and on the basis of his persistent denials of responsibility for the assault. The administrator submitted that it is more likely than not that the applicant said what he did in evidence in order to have his authority restored, regardless of his true feelings.

21 It is apparent that the applicant’s change of heart in relation to acknowledging personal responsibility for his conduct on the night of 5 August 1996 is only recent. There must be some doubt, as counsel for the administrator submitted, as to whether the change of heart is genuine or is simply a calculated attempt to advance the present application.

22 At hearing on 31 March 1999 I raised with counsel the possibility of permitting the applicant to have an authority re-issued on a restricted basis, only in relation to driving buses. Applicant’s counsel proposed that such an authority might be re-issued on the basis that the applicant attend the clinical psychologist, Dr Tom Jones, every 3 months for an update assessment of his position as noted in the report submitted to these proceedings in February 1999; and to provide the administrator with a report in that regard. At hearing, understandably, the administrator showed some concern in being involved in any administrative arrangements of an ongoing character in relation to the performance of its licensing responsibilities.

Assessment

23 Public confidence in the public transport system depends significantly on the driving ability and trustworthiness of drivers. Section 11(2) provides that the purpose of a public passenger vehicle driver’s authority is to attest that the person is considered to be of “good repute” and is in “in all other respects a fit and proper person to be the driver of a public passenger vehicle”. It is also necessary that the authorised person is considered “to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates.”

24 The policy followed by the administrator in making these ‘character’ assessments would appear to be to accept that they are met unless adverse information comes to light, most commonly via the application process or a criminal history check.

25 In this case action was taken against the applicant’s authority when it became apparent that he had been convicted of a serious offence of violence. The administrator formed the opinion that such a conviction was adverse to the good repute and character of the applicant, and that it was sufficiently serious to warrant refusal of a further authority.

26 On the other hand, the applicant submits that he is in effect being punished again for the offence. The personal history contained in the probation report and the psychologist’s report indicate that in India before migrating to Australia in 1991 he had attained qualifications in engineering. He was relatively highly educated but has been unable to obtain work at a similar level in Australia. The history indicates that he has had relatively stable and continuous employment as a taxi driver.

27 The administrator’s files record three passenger complaints against him, one in 1992, one in 1996 and one in 1997, each giving rise to reprimands. There was also the failure on his part to respond to the administrator’s request to undergo a medical examination in connection with the issue of the bus driver’s authority. A notice of suspension was sent to the applicant in June 1998 at his home address, to which he did not respond (a time when he was in prison but being regularly visited by his wife).

28 Clearly there is a public interest in ensuring that those who have the care and control of passengers using public transport can be trusted not to behave in an inappropriate way. The licensing authority would be expected to accord great weight to an offence of violence in assessing whether a person can be trusted. In this case the offence occurred in a domestic context. The clinical psychologist has concluded that the applicant’s behaviour is explained by that context. His conclusion was that there was not a significant risk of him repeating that behaviour towards a passenger and that he did not think his behaviour on 5 August 1996 was part of a pattern of aggressiveness.

29 The applicant’s consultation with the psychologist may represent a turning point in his attitude to his conduct. As late as November 1998, in his letter replying to the show cause notice, he was continuing to deny the gravity of his conduct. That position changed on the occasion of his meeting with the psychologist in January 1999. At hearing in February 1999, I was satisfied that his answers acknowledging fault were genuine, though he clearly still had difficulty confronting the magnitude of the injuries that he had inflicted on his wife.

30 His inability to return to his preferred occupation of taxi-driver is continuing to cause suffering to his wife and two children. At hearing he indicated that he was relying of the unemployment benefit, while paying $165 a week rent for the family’s home at Berala. I am reasonably satisfied that he is genuine in his concern to re-establish his family life on a more secure basis.

31 Judge Naughton’s observations when sentencing the applicant referred to the variety of character witnesses called in support of the applicant. He was satisfied that he and his family was held in high respect in the local Sikh community of which he was an active member. Testimonials were filed in these proceedings to similar effect, from Sukhdev Singh, Managing Director, Macquarie Duty Free, North Ryde; from Rajiv Sethi, taxi driver of Campsie; from Bhupinder Singh Grewal, taxi driver of Ryde; and from Simret Riar, accredited taxi service operator, of St Ives. They were not called to give evidence and the extent of their knowledge of his conviction and imprisonment is unclear.

32 It is clear that the applicant’s “good repute” will have suffered as a result of the offence and the imprisonment. The same matters also affect the judgment to be made as to the applicant’s character. As the cases have reiterated, the assessment of character in the context of a licensing scheme must have regard to the nature of the licensed occupation and its objectives: see generally Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156; Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321; and in this Tribunal, Haining v Commissioner of Police [1999] NSW ADT 6.

33 Counsel for the administrator has drawn attention to the amendments to the Act in 1997 which expanded the objects to include a new s.4(e) in the Act:

“to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services”.

Counsel emphasised the use of the word “safe”.

34 “Safety” has a variety of connotations in the public transport context. It relates to the quality of vehicles, as well as infrastructure such as rail and road ways. It can also relate to passenger safety especially in relation to misconduct by other passengers. The driver of a public passenger transport vehicle may also present a risk to the safety of the passenger. The passenger and the driver are strangers to each other, brought together in an intimate setting with the driver being in control of the route to the destination.

35 Because of those considerations, I consider that care must be exercised in assessing as a person of fit and proper character someone who is committed a serious offence of violence in the recent past. In the applicant’s case the offence occurred in August 1996, now almost three years ago. One year of that period has been spent in prison. He has lost the trust of the administrator for the time being. He needs to re-establish that trust. It would, I consider, be premature to restore the applicant’s taxi driver authority at this stage.

36 As noted, bus transport is less intimate. Drivers are required to follow prescribed routes with numerous stops. A less stringent approach to the application of the character standard in this setting is appropriate. Counsel for the administrator noted in submissions, that not all forms of driving for reward require special authorities that attest to character (for example, parcel vehicles, courier vans). Nonetheless in this case the applicant held a taxi authority for many years. While it would be premature to restore the applicant’s taxi authority, a more considerate approach might be taken in relation to restoration of a bus authority (subject to any medical clearances).

37 Counsel for the applicant, as did the applicant in evidence, emphasised the detrimental effect non-restoration of the licence would have on the applicant’s family. There is clearly a public interest in the effective rehabilitation of ex-prisoners and in the welfare of their families. Equally there is a danger that the requirement that persons be of “good repute” might be construed to support a policy that ex-prisoners whose offences involved violence or dishonesty might never be permitted again to have a taxi or bus-driver’s licence. A serious offence of violence that has occurred in the recent past will necessarily be of concern to the wider community.

38 While the applicant has only committed one criminal offence, it was one of great violence. An applicant with such a record needs to win back the trust of the licensing authority, before the authority can reasonably permit re-entry to a licensed occupation that involves random daily contact with the community. For an illustration of grant of a taxi-driver licence where the review tribunal was satisfied as to rehabilitation: see Maythisathit and Registrar of Motor Vehicles [1996] ACT AAT 165. For a similar illustration in another sensitive context (registration as person suitable to adopt) see Re T and Director of Youth and Community Services [1980] 1 NSWLR 392.

39 This Tribunal’s responsibility is to determine what the “correct and preferable” decision is in all the circumstances having regard to the material then before it, including any relevant factual material and any applicable written or unwritten law: Tribunal Act, s.63(1).

40 I am satisfied that the administrator’s decision to cancel the authority was the correct and preferable one in present circumstances.

41 However, I recommend to the applicant that he continue to take steps that might encourage the administrator to alter its current view. To that end, I encourage the applicant to continue to attend a clinical psychologist such as Dr Jones for counselling on a quarterly basis, with a view to making a fresh application in due course to the administrator which forwards those reports in support. It will be evident from my reasons that I regard restoration of a bus driver’s authority as a less problematic course in the medium term than restoration of a taxi driver’s authority.