Darwiche v Two Truck Authority of New South Wales

[2007] NSWADT 203

CITATION:	Darwiche v Two Truck Authority of New South Wales [2007] NSWADT 203
DIVISION:	General Division
PARTIES:	APPLICANT Abdul Darwiche RESPONDENT Tow Truck Authority of New South Wales
FILE NUMBER:	073004
HEARING DATES:	22 February 2007, 14 March 2007
SUBMISSIONS CLOSED:	16 May 2007
DATE OF DECISION:	6 September 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Tow Truck Industry Act - tow truck operator or driver - grant of licence or certificate - Tow Truck operator or driver - grant of licence or certificate
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999 Tow Truck Industry Act 1998 Tow Truck Industry Regulation 1999
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Saadieh v Director-General, Department of Transport [1999] NSWADT 68
REPRESENTATION:	APPLICANT In person on 22 February 2007 M Darwiche, agent on 14 March 2007 RESPONDENT M King, barrister
ORDERS:	The decision of the Tow Truck Authority of New South Wales to refuse to issue the Applicant with a tow truck driver’s certificate is affirmed.

REASONS FOR DECISION

Background

1 The Applicant applied to the Tow Truck Authority of New South Wales (“the Authority”) for a tow truck driver’s certificate. The application was refused pursuant to section 26(3)(a) and (d) of the Tow Truck Industry Act 1998 (“the Act”) on the basis that the Applicant is not a person of good character and that it is not in the public interest for him to be granted a tow truck driver’s certificate. The Applicant applied to the Tribunal for review of the decision and it was determined to proceed in the absence of an internal review.

Relevant legislation

2 Section 15 of the Act provides:

“15 Requirement for tow truck operators to be licensed

A person must not carry on business as a tow truck operator unless the person holds a tow truck operators licence that authorises the kind of towing work carried on by the person in the course of that business.

Maximum penalty: 100 penalty units or imprisonment for 12 months, or both.”

3 Under section 23 of the Act a person must hold a driver’s certificate to drive or operate a tow truck. Applications may be made to the Authority for a driver’s certificate under section 25 of the Act. Section 26 of the Act sets out the restrictions on the granting of a driver’s certificate:
“26 Restrictions on granting drivers certificate

(1) The TTA:

(a) must refuse to grant an application for a drivers certificate on mandatory grounds, and

(b) may refuse to grant an application for a drivers certificate on discretionary grounds.

…

(3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows:

(a) that the Applicant is not, in the opinion of the TTA, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,

…

(d) that the granting of the drivers certificate would, in the opinion of the TTA, be contrary to the public interest.”

4 Section 85 of the Act provides for various offences against the Act. Subsection 85(3)(a) provides:
85 Offences

…

(3) A person who:

(a) wilfully delays, obstructs or hinders an authorised officer or a police officer in the exercise of the officer’s functions under this Division, or

…

is guilty of an offence.

Maximum penalty: 75 penalty units, or imprisonment for 6 months, or both.

5 Clause 57(a) of the Tow Truck Industry Regulation 1999 (“the Regulations”) provides:
57 Offence to incite or encourage commission of offence

A person must not:

(a) incite or encourage any other person to commit an offence under the Act or this Regulation, or

...

Maximum penalty: 50 penalty units.

The Authority’s case

6 The Authority relied on a report obtained from Detective Inspector Ryan of the NSW Police’s Middle Eastern Organised Crime Squad. That report indicated that police had suspected the Applicant’s involvement in a number of criminal activities. It is alleged that the Applicant is a member of a criminal syndicate involved in the distribution of prohibited drugs and associated crimes of violence operating in South West Sydney.

7 Detective Inspector Ryan indicated in his report that he is of the firm opinion that is not in the public interest to grant a tow truck driver’s certificate to the Applicant. In part his report states:

“The evidence of Abdul Darwiche's former close associate "Ahmed Hassan" (a pseudonym) was that he sold cannabis and amphetamines for Abdul Darwiche from 1996 onwards.

"Hassan" outlined a series of incidents from that time onwards involving Abdul Darwiche, he indicated Abdul Darwiche carried a gun down the back of his pants; he recounted an incident in 2000 in [deleted] where Abdul urged [deleted] on to shoot a man (which he did) in retaliation for the man earlier bashing "Hassan's" brother.

Hassan said Abdul Darwiche was the driver of a car loaded with three gunmen who shot up a house associated with [deleted] on 28 February 2001. On 17 June 2001 he drove [deleted] and [deleted] to the home [deleted] where [deleted] shot [deleted].

The witness also gave evidence of being present at the planning of a proposed shooting of [deleted]. The plan was for [the Applicant and another] to go to [deleted] with an associate who was to let off some shots to bring [deleted] outside where upon [the Applicant and another] would open fire on them with SKS assault rifles.

This shooting occurred on 27th August 2003 in [deleted]. [the Applicant and another] did fire upon [deleted] as planned however missed. [deleted] also gave evidence of being fired upon by [the Applicant and another]. A total of 55 7.62mm (SKS) fired cartridge cases and 11 .40 calibre projectiles were recovered at the crime scene.

The witness stated the SKS's were later stored at Abdul's home before being used by [deleted] and others in the double murder of [deleted] on 14 October 2003. On 28 November 2003 [the Applicant and another] were charged with attempted murder in respect of the [deleted]. Abdul Darwiche was acquitted following a Supreme Court Trial during February 2006.

…

From information documented on the Police COPS system, Source reports and information lawfully obtained by Strike Forces Grapple and Adder, it appears that Abdul Darwiche has now assumed control of the Darwiche Family Criminal Syndicate, maintaining drug distribution networks established in the south west of Sydney. The application by Abdul Darwiche for a tow truck driver's certificate may be an attempt to appear to legitimise his activities, avoiding police detection.

I am of the firm opinion that is not in the public interest to grant a tow truck drivers certificate to Abdul Darwiche.”

8 Detective Inspector Ryan attended the hearing and was subjected to cross-examination. He elaborated on his report and gave detailed evidence of suspected involvement by the Applicant in a range of serious criminal activities. He maintained this view under cross-examination.

9 There is other material before the Tribunal which indicates that in 2002 the Authority commenced a prosecution of the Applicant for offences against section 15 of the Act (for carrying on business without a licence); against section 85(3)(a) of the Act (for wilfully delay, obstruct or hinder authorised officer) and against clause 57(a) of the Regulations (for inciting or encouraging another person to commit an offence). Those offences were proven and dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999 before the Local Court at Parramatta. Mr King submits that this indicates a previous history of non-compliance with the requirements of the Act.

10 Mr King also refers to evidence given by the Applicant that he owned tow-truck plates but had them registered in someone else's name. He submits that this was an admission of a further offence against the Regulations.

11 The Authority position is that the Act and Regulations are designed to be protective of the community and there is a wealth of material before the Tribunal from the evidence of Detective Inspector Ryan as to his belief that the Applicant has a history of involvement in the drug industry, in matters of violence and in matters concerning firearms. There is further evidence which suggests that the Applicant had been able to provide a rocket launcher to police. Mr King submits that this proves that the Applicant had access to it.

12 In addition there is clear evidence that the Applicant is an associate of known criminals who have been found guilty of offences of violence involving firearms, and murder. Mr King relies on the decision Farquharson v Director General, Department of Transport [1999] NSWADT 53 where the Tribunal’s President stated at paragraph [37]:

37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The Applicant sought review of a refusal to grant a taxi driver’s licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the Applicant’s desire to rehabilitate himself. In the course of its decision the 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.”
13 Mr King also refers to references in Farquarson to the fact that an acquittal on criminal charges, where the standard is beyond reasonable doubt, may still leave the Tribunal or a person involved in the issuing of a licence with the question as to whether, despite that acquittal, they in fact lack the reputation and integrity that would be necessary. The acquittal means that the crown was unable to prove beyond reasonable doubt, in a particular case on the evidence then before it, that a person was guilty beyond reasonable doubt. It does not mean that they are persons of good character or reputation.

14 Mr King submits when the Farquarson test is applied in the circumstances of the information from the Police Service that is before the Tribunal and its very strong objection to the Applicant being able to obtain a tow truck driver's licence, that the refusal was in fact well founded. Accordingly it should be affirmed.

The Applicant’s case

15 The Applicant relies on his own evidence and evidence given on his behalf by his brother Albert Darwiche. He also provided written submissions in support of his application. He denies the allegations levelled at him. He asserts that he was found not guilty of the charge of attempted murder in circumstances were the case made against him was so weak the he did not have to put up a defence.

16 The Applicant contends that the evidence on which the Authority relies is unfounded rumour and speculation. He says that there is a personal vendetta by the NSW police to seek revenge upon him for being acquitted of something he did not do. He argued that Detective Inspector Ryan’s knowledge of his character is poor as it is based on what other people have told him. He has not seen any of the witnesses give evidence at trial nor has he read a copy of the transcript of the proceedings. He has relied on witness statements which have been shown to be not a true and accurate account of his actions.

17 He submits that in cross examination Detective Inspector Ryan admitted that he had not looked beyond the statements of the witnesses when coming to his conclusion that the Applicant is not a fit and proper person. His entire opinion was basically formed around the statement given by a witness but disregards the benefit this witness was given in return for his evidence. He asserted that the witness received $2 million, a boat, a new identity, a pension for life, seven members of his family brought from Lebanon and given Australian citizenship pension for life and also indemnity on 17 attempted murders and 4 murders. He failed to provide evidence in support of this assertion despite his assurance that the evidence was available and being given an opportunity to obtain that it.

18 The Applicant submitted that the Tribunal should not take Detective Inspector Ryan’s evidence into account as it is based on evidence that simply cannot be relied upon in any Tribunal due to its frivolous nature.

19 The Applicant further says that all the information that the Authority seeks to rely upon now was available to it when he previously applied for a tow truck licence. He asks the Tribunal to take into account the fact that he has never been charged with any drug offences, also have any crime commission proceedings have ever been brought against him. Furthermore, nowhere in any statement does it state that he was a drug dealer or that he was involved in a syndicate. He says that his brother was convicted of murder but the surveillance material tendered in that case shows that the Applicant was never present with his brother or his associates the whole time the police were watching them. He says that the reason for this was that he was working on his tow truck and didn't have time to associate with anybody.

20 He argues that the case of Farquharson can be distinguished on its facts. The Applicant in that matter was a taxi driver who was convicted. He submits that there is a different level of care that is displayed between taxi drivers and tow truck drivers. The public should expect more of a taxi driver as the taxi driver can cause more harm to the public then a tow truck driver.

21 It is further submitted that it is unfair that he should be acquitted in one court and convicted in another for something he didn't do. He says that he is an innocent man and should be treated as such. He stated that he is willing to abide by any conditions which the Tribunal may attach to the return of his licence. All he is asking for is a fair go.

Findings

22 This matter is an application for review of a refusal by the Authority to grant the Applicant a tow truck driver's certification. The grounds on which it was refused were that the Applicant is not a fit and proper person to hold a tow truck driver's certificate or is otherwise not competent to drive a tow truck, and that the granting of the certificate would be contrary to the public interest.

23 The first issue in this case, then, is whether the refusal by the Authority to grant the application was the correct and preferable decision, having regard to whether the Applicant is a fit and proper person. There is clear evidence that could support the Authority’s contention. It is necessary to determine what weight should be given to that evidence. Evidence given by Detective Inspector Ryan supports that decision. I found Detective Inspector Ryan to be a credible witness and I formed the view that his opinion concerning the Applicant was reasonably based.

24 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."
25 In the matter of Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal considered a number of factors that are relevant and should be taken into account in determining whether a person is suitably fit to obtain a taxi-driver authority. I think that several of those factors are relevant to this application. Those factors are the nature, seriousness, and frequency of the offences for which the Applicant has been found guilty or convicted; the nature, seriousness, and frequency of any complaints made against him; and the likelihood that the Applicant will re-offend or be the subject of further complaints.

26 The Applicant has not been convicted of any offences. There is reference to proven charges for offences against the Act and Regulations in 2003 which were proven and dismissed under section 10 of the Crimes (Sentencing Procedure) Act 1999. I agree with Mr King that a lack of convictions is not conclusive evidence that a person is of good character or reputation. The allegations against the Applicant are clearly of grave seriousness, and high frequency. In my view the likelihood that the Applicant will be the subject of further allegations is also high.

27 I note that I agree with Mr King’s submissions generally and in particular the application of the test referred to in Farquharson. In my view, a member of the public who dealt with the Applicant as a tow truck driver, knowing of the allegations raised against the Applicant, would object to the Applicant performing that role.

28 On the evidence before me I am not satisfied that the Applicant can be consider to be a fit and proper person to hold a tow truck driver’s certificate. It is not necessary that I consider whether the grant of the application would be contrary to the pubic interest, however for completeness I note that I consider that to be the case.

29 It follows, in my view, that the Ministry’s decision to refuse to grant the application was the correct and preferable decision and should be affirmed.

Order

The decision of the Tow Truck Authority of New South Wales to refuse to issue the Applicant with a tow truck driver’s certificate is affirmed .