KHALIL and DEPARTMENT OF TRANSPORT
[2014] WASAT 158
•20 NOVEMBER 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008
CITATION: KHALIL and DEPARTMENT OF TRANSPORT [2014] WASAT 158
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: 16 AND 31 OCTOBER 2014
DELIVERED : 31 OCTOBER 2014
PUBLISHED : 20 NOVEMBER 2014
FILE NO/S: CC 1251 of 2014
BETWEEN: MOHAMED YOSSEF HELMI KHALIL
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA) - Review of decision to suspend 'T' extension - Effect of pending charge - Consideration of materials sufficient to found reason to suspect not of good character
Legislation:
Criminal Investigation Act 2006 (WA), s 120
Evidence Act 1996 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 7, reg 11(1), reg 12, reg reg 28(3), reg 28(4), reg 41, reg 41(1), reg 42, reg 42(1)(d)(iii), reg 42(1)(d)(iv)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 29(1), s 32(2), s 32(4)
Result:
Application for review unsuccessful
Decision under review affirmed
Summary of Tribunal's decision:
The applicant applied for review of a decision by the respondent to suspend the applicant's driver's licence 'T' extension permitting him to drive taxis.
The Tribunal found that the existence of a serious pending charge of possession of prohibited drugs with intent to sell or supply was sufficient to constitute reason to suspect the applicant was not of good character. The decision under review was therefore affirmed. The Tribunal nevertheless commented on the nature of evidence provided by the applicant and, if that evidence was reflective of the respondent's practice, recommended a review of the manner in which the respondent prepared for applications of this nature.
Category: B
Representation:
Counsel:
Applicant: Mr C Hampson
Respondent: Mr C Warner (Acting as Agent)
Solicitors:
Applicant: Justine Fisher Barristers & Solicitors
Respondent: Department of Transport
Case(s) referred to in decision(s):
Grover v Commissioner of Police [2005] WASC 263
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (No 2) [2008] WASC 166
Hardingham v Chief Executive Officer, Department for Child Protection (2011) WASC 86
Mohamed v Department of Transport [2011] WASAT 76
REASONS FOR DECISION OF THE TRIBUNAL:
Preamble
Immediately after the conclusion of the hearing of this application on 31 October 2014, I handed down oral reasons for decision rejecting the applicant's contention that the respondent's decision suspending the applicant's 'T' extension to his driver's licence should be set aside and instead ordered that the decision under review be affirmed. Because procedural considerations arose of some general importance, I have caused the reasons to be published. The reasons which follow have been prepared from the transcript of the oral reasons with only minor editing.
Introduction
By application lodged on 28 August 2014, the applicant sought the review of a decision of the Director General upholding an earlier decision to vary the conditions attaching to the applicant's driver's licence by suspending the 'T' endorsement thereon which permits him to drive taxis. The right to have the respondent reconsider the original decision and, if dissatisfied with that reconsideration, to apply to this Tribunal for review is permitted by regs 42(1)(d)(iii) and 42(1)(d)(iv) of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations).
The notice of the original decision, dated 14 May 2014, was served on 29 May 2014 and set out that the respondent had become aware that the applicant had been charged with possession of a prohibited drug with intention to sell or supply. Following a request by the applicant for a review and reconsideration of the original decision, in a letter bearing no date, the delegate to the Director General stated:
On the basis of the information that has been provided to the department with regard to the offences for which you have been charged by Police, and that has subsequently led to the suspension of your driver's licence 'T' extension, I advise that the Director General has a responsibility under reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2008 to be satisfied that an applicant for or the holder of a 'T' extension is of good character.
The nature of the offence that you have allegedly committed, possession of prohibited drugs with intent to sell or supply, provide doubt as to whether you are of the character required to remain the holder of a 'T' extension. On the basis of the information contained within the statement of material facts and the seriousness of the charge, I have decided to uphold the original decision taken to suspend your driver's licence extension 'T'.
The issue for determination
Although in the applicant's statement of issues, facts and contentions issues were raised going to hardship and alleged discriminatory conduct of the Police in Port Hedland towards the applicant, these issues were not pressed at the hearing.
Similarly, the respondent raised the applicant's traffic infringement history and various criminal convictions but did not press reliance on these factors. These were all known to the respondent and taken into account in issuing a warning letter to the applicant that in the event of additional convictions, infringements or charges it might be decided to cancel or suspend the applicant's 'T' extension. These matters therefore form no more than part of the applicant's history which might have had increased relevance in circumstances in which reliance was being placed on an alleged general disregard for the law. This is not such a case.
The reconsideration decision, now the subject of review, was based on the applicant being charged with possession of prohibited drugs with intent to sell or supply and the assertion that causes doubt as to the applicant's character. On review, this Tribunal would be entitled to rely on any relevant considerations, but there is no need to approach the matter on any wider basis than that taken by the Director General, nor would it be fair to do so, having regard to the confined way in which the case has been conducted. The sole issue for determination, having regard to the provisions of the Regulations (referred to below) is therefore as follows:
Does a pending charge of possession of a prohibited drug with intent to sell or supply provide a proper basis for the Director General, and therefore this Tribunal on review, to have reason to suspect that there are grounds on which the Director General, if then considering whether to grant the 'T' extension, could refuse to do so?
The statutory regime
The regulation of who may drive taxi cars in Western Australia is through the regulation of drivers' licences. The authorisation to drive a vehicle, including a taxi, is found in the Regulations. The Director General may grant a person a licence authorising the person to drive a motor vehicle on a road (see reg 7 of the Regulations). A driver's licence does not authorise the holder to drive with the purpose of carrying passengers for reward, in a taxi or otherwise, unless it is endorsed under reg 12 (see reg 11(1) of the Regulations).
Under regs 12(1) and 12(2)(a) of the Regulations, the Director General may endorse a driver's licence to include a 'T' extension. The holder of a driver's licence endorsed with a 'T' extension is authorised to drive for the purposes of carrying passengers for reward, including in a taxi. Under reg 12(7) of the Regulations, the Director General may make a 'T' extension endorsement if, relevantly, satisfied that the applicant is of good character. There are other requirements which it is not necessary to set out.
The Director General may vary a driver's licence. Before varying a driver's licence to extend the holder's authorisation to drive, the Director General has to be satisfied that the person would be eligible to hold the driver's licence as varied and that it would be appropriate to make the variation (see reg 28(3) of the Regulations). The Director General may also vary a driver's licence by suspending or cancelling any authorisation that the driver's licence gives.
Regulation 28(4) of the Regulations provides:
Before varying a driver's licence in a way that would suspend or cancel any authorisation that the [driver's] licence gives, the Director General has to have regard to the principles in regulation 41 that apply to the cancellation or suspension of a driver's licence, and regulation 41(2) and (3) apply as modified for the purpose of helping the Director General to decide whether to make the variation.
Regulation 41(1) of the Regulations provides, relevantly:
The Director General may, by notice in writing given to the licence holder ‑
(a)suspend a person's driver's licence if the Director General has reason to suspect that there are grounds on which the Director General could, if then considering whether to grant the driver's licence, refuse under regulation 25 to grant it[.]
The practical effect of reg 28(4), read with reg 41 of the Regulations, is that, relevant to this case, the Director General may suspend a 'T' extension if the Director General has reason to suspect that there are grounds on which the Director General could, if then considering whether to grant the 'T' extension, refuse to grant it.
Finally, reg 42 of the Regulations provides that decisions of the Director General, including a decision to vary a driver's licence by amending or cancelling an endorsement on it, are reviewable decisions. A person aggrieved by a reviewable decision may seek reconsideration by the Director General and, if dissatisfied with that reconsideration, may apply to the Tribunal for a review of that reconsideration.
The review before the Tribunal is a hearing de novo, as provided for under s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), and it is not confined to the matters and information that were before the decision‑maker at the time of the decision. The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. The Tribunal, on review, has the same functions and discretions corresponding to those exercisable by the decision-maker in making a reviewable decision, as provided by s 29(1) of the SAT Act.
It is also to be noted that the Evidence Act 1996 (WA) does not apply to the Tribunal's proceedings. The Tribunal is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices or procedures, or the regulations or rules make them apply (see s 32(2) of the SAT Act). Further, the Tribunal may inform itself on any matter as it sees fit, as provided for by s 32(4) of the SAT Act.
The pending charge
The respondent asserted, in paragraph 5 of its statement of issues, facts and contentions, as follows:
On 28 February 2014 the applicant was charged with possession of a prohibited drug with intent to sell or supply. It is understood the charge will be dealt with during the December sittings of the Geraldton District Court. The allegation is that he was in possession of 1.2 kilograms of cannabis in 44 separate deal bags.
Reference was made to document 11 in the respondent's bundle of documents, which was filed and served at the same time as the statement of issues, facts and contentions. It is necessary to make some comment on the form of document 11. It is no more than a blank A4 sheet of paper on which there is a heading 'Statement of Material Facts', a reference to the applicant's name as a heading, and a further heading 'Arrest Date: 1 March 2014'. There is then a subheading 'Possession of Prohibited Drugs with Intent to Sell or Supply' and then a statement of the alleged material facts.
It will be observed that the assertion of the pending charge gives no details of the source of any advice that the applicant had been charged. Document 11 is not on any official Western Australian Police Service (Police) form. No statement of evidence has been filed to support what is no more than an allegation in the respondent's statement of issues, facts and contentions which is supported by a document which has no probative value in itself.
When the Tribunal expressed concern about the quality of information being put before it on which to conduct the review, the respondent's representative applied for an adjournment. The adjournment was granted, albeit at a very late stage in the proceedings, because it would have served no good for the applicant to succeed on review based on a technicality if it arguably remained open to the respondent to make a fresh decision and ensure that better evidence was provided in any subsequent review of that decision. The respondent has since filed an addendum to the respondent's statement of issues, facts and contentions. It reads, relevantly, as follows:
(1)Following the previous hearing on Friday, 17 October 2014 [sic] the respondent approached the West Australian Police, requesting further details regarding a pending charge on the applicant of possess [sic] prohibited drugs with intent to sell or supply.
(2)The respondent believes that matter is next listed in the Geraldton District Court in December this year.
(3)The statement of material facts (annexure A) provided by the West Australian Police indicate[s] the details of the relevant charge. Relevantly, this document refers to admissions allegedly made by the applicant to the effect that he and the co-accused were delivering the prohibited drug, some 1.2 kilogram of cannabis, to another.
(4)Given the matter is yet to be finalised by the courts, notwithstanding full disclosure of evidence being provided by the applicant, [the] West Australian Police have advised that no confessional material will be provided to the respondent (annexure B).
(5)On 30 April 2014, following convictions for assault and drug charges, the applicant was advised in writing that further charges may result in the respondent exercising their [sic] statutory authority and taking adverse action against the applicant's extension T.
(6)The respondent became aware of the pending charges on 14 May 2014.
(7)The respondent contends that the statement of material facts provided sufficient information to form the opinion that at this time the applicant is not of good character.
The applicant's contentions
The applicant provides in his statement of issues, facts and contentions the context in which various offences occurred. As already indicated, they are not directly relevant, as they are not relied upon to cast doubt on the applicant's character. As to the pending charge, the applicant simply states that he is pleading not guilty. The applicant has also provided a number of references from persons who consider him to be of good character. Further reference will be made to these below.
Considerations
The respondent is quite wrong to assert, as it has done in paragraph 7 ofthe addendum, that the material provided establishes that the applicant is not of good character. That assumes the applicant will be convicted. It is not the basis upon which the decision to suspend was made, in any event. The letter advising of the reconsideration makes plain that the delegate for the Director General considered only that the pending charge created doubt about whether the applicant was of the requisite good character.
In Mohamed v Department of Transport [2011] WASAT 76, the Tribunal addressed what it means to have reason to suspect something. This, of course, is the requirement of reg 41, read with reg 28(4) of the Regulations, to which reference has already been made, permitting suspension of a driver's licence 'T' extension based on a reason to suspect, relevantly, that a person is no longer of the requisite character. In that decision, the Tribunal referred to a decision of the Supreme Court, Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (No 2) [2008] WASC 166 (Gypsy Jokers) and to an extract from that decision. That extract commences at [16] of the Gypsy Jokers decision:
16.In George v Rocket (1990) 170 CLR 104, the High Court considered legislation which allowed a justice to issue a search warrant when there were 'reasonable grounds for suspecting' certain things, as well as 'reasonable grounds for believing' others. The court noted (at 115) that suspicion and belief are different states of mind, and went on to state:
'Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam [[1970] AC 942, 948] "in its ordinary meaning is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove'". The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.'
17.The court also approved the dictum of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 (at 303) that:
'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence.'
These principles are also discussed in Hardingham v Chief Executive Officer, Department for Child Protection (2011) WASC 86, relevantly at [150] and [152], and I refer and incorporate the comments there made by Heenan J.
Applying these criteria, the danger in relying on document 11 attached to the respondent's statement of issues, facts and contentions is self‑evident when there is no evidence of its source or authenticity as a document to establish that a charge is pending. If this reflects the respondent's current practice in the preparation of this type of matter, the practice requires review.
The respondent does not seem to appreciate that the statement of issues, facts and contentions is not evidence; it reflects no more than the respondent's assertions. The respondent would be well‑advised to ensure in future that a statement of evidence is filed giving the narrative supporting the decision under review and introducing the documents relied upon, explaining their source, and, if information believed to be true has been provided from third parties, stating by whom it has been provided. The documents filed with the addendum to the respondent's statement of issues, facts and contentions might address these deficiencies.
It is alleged that evidence of admissions by the applicant could not be provided. The reason given by the information release officer of the Police is because the matter is pending (see the email at Annexure B to the addendum dated 23 October 2014). Nothing turns on this. The guilt or innocence of an accused person, until established by a finding of a court, cannot be assumed. In any event, it appears that s 120 of the Criminal Investigation Act 2006 (WA) will preclude the provision of a record of a Police interview.
It is the establishment of a pending charge of a serious nature reflecting on the character of the applicant which needs to be established. It is to be noted that the only probative material establishing that fact is the email of 23 October 2014 (Annexure B to the addendum to the respondent's statement of issues, facts and contentions), which was provided for a quite different purpose, namely, to explain why evidence of admissions allegedly made by the respondent in a recorded Police interview could not be provided. Paragraph 5 of the respondent's statement of issues, facts and contentions asserts that a charge is pending, but that is no more than that: an allegation.
Also annexed to the addendum is a copy of what appears to be the official statement of material facts relied on by the Police in the prosecution of the applicant for possession of a prohibited drug with intention to sell or supply (see Annexure A to the addendum). It records the brief number relating to the prosecution, and is on an official printed form with details typed in. It identifies the investigating officer, as well as the approval officer and supervising officer. In the absence of any challenge of its authenticity, it is material upon which it would be safe for the Tribunal to rely, and I did so. The material facts stated as follows:
At about 6.35 pm on Friday, 28 February 2014 the accused was the passenger in his Toyota sedan registered number 1EJT149 that was being driven by the co‑accused on Brand Highway, south of Dongara when the vehicle was stopped by police regarding another matter. As a result of this interaction with police, the driver's bag containing her personal belongings that was in the boot of the vehicle was subject to a search, during which a quantity of cannabis leaf material packaged into separate bags were found in this bag.
The accused and his co‑accused were arrested and conveyed to the Dongara Police Station. A further search of the vehicle was conducted and further amounts of cannabis packaged in one-ounce deal bags were located in the co‑accused's luggage and in another bag belonging to the accused on the rear floor behind the driver's seat. Also located in the luggage belonging to the co‑accused was a set of electronic scales.
In total, there were 44 separate deal bags each containing cannabis. When weighed, the total weight of cannabis was approximately 1.2 kilograms. The accused was interviewed by detectives, during which he admitted that he and his co‑accused were conveying a small amount of cannabis to another person. The present charge was preferred. Request order for destruction of cannabis and scales.
In Grover v Commissioner of Police [2005] WASC 263, Johnson J considered the effect of a pending criminal charge which had been relied upon to refuse an application for a security officer's licence. At [47], her Honour stated:
… I also have some difficulty with the assertion that the Statement of Material Facts established that a complaint had been made and that someone had made a judgment that there was a prima facie case with reasonable prospects of conviction so that the matter should proceed in the courts. However, on the available evidence there was no indication that the matter had reached the stage where an indictment would be prepared and consideration of the DPP's guidelines would take place, including consideration of whether there were reasonable prospects of conviction. On that basis, at most the evidence supports a conclusion that a complaint had been made of a series of sexual offences and, as charges had been laid, a police officer considered that there was prima facie evidence in relation to each of the offences. I don't believe the documentation is capable of sustaining any further inference nor in my view, is it necessary that it does so before it could be relied upon and before it could create a doubt as to whether the appellant is of 'good character' (emphasis added). Indeed, in my view, providing the evidence was admissible in its form, the fact that an allegation had been made which was not self-evidently unsustainable, is sufficient to adversely impact on the licensing officer[']s satisfaction as to the appellant's good character.
This reasoning applies with equal force in this case, and I adopted it. All that is required is that the Director General, and therefore this Tribunal on review, has doubt, after considering all relevant material, that the applicant is of good character. It is of little consequence that the applicant has pleaded not guilty. The purpose of the licensing regime is to ensure that the public has confidence in the standard of conduct of taxi drivers. If there are grounds to suspect that a taxi driver may engage in dealing in drugs, and a possibility that such dealing could be with minors who use the taxi service, it would be entirely contrary to that purpose to allow that person to continue operating as a taxi driver.
The applicant relied on character references. They have been provided by his wife, his father‑in‑law and the owner of the taxi service in Port Hedland which employed the applicant, the manager of a former employer, and two work colleagues. Only the applicant's wife and father‑in‑law recorded their knowledge of the charges being faced by the applicant. Little weight should therefore be given to the views expressed by the other referees, but, in any event, even giving as much weight as possible to all the references, there remains overall a reason to suspect the applicant is not of sufficiently good character to be allowed to continue driving a taxi while the current charge against him is pending.
Conclusion
I concluded for the above reasons that the decision and review should be affirmed and I caused an order to issue to that effect. I recommend that the respondent's officers review their practice in the preparation of cases of this nature to address the concerns I have raised.
I certify that this and the preceding [30] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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