Mohammed v Director-General, Department of Transport

[2000] NSWADT 47

CITATION:	Mohammed -v- Director-General, Department of Transport [2000] NSWADT 47
DIVISION:	General Division
PARTIES:	APPLICANT Fiaz Mohammed RESPONDENT Director-General, Department of Transport
FILE NUMBER:	003028
HEARING DATES:	14/04/2000
SUBMISSIONS CLOSED:	04/14/2000
DATE OF DECISION:	04/20/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - taxi driver - cancellation of authority - Taxi driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Australian Broadcasting Tribunal -v- Bond (1990) 170 CLR 321
REPRESENTATION:	APPLICANT In Person RESPONDENT A Wozniak, solicitor
ORDERS:	1. Decision of Director General to cancel taxi-cab authority affirmed.

1 On 1 February 2000 Mr Mohammed, applied to the Tribunal for a review of the Director General’s decision to cancel his authority to drive a taxi. In summary, the decision to cancel Mr Mohammed’s licence was based on “the serious nature of the complaint made against Mr Mohammed on 19 November 1999 combined with his complaint history as a taxi driver.” On 11 January 2000 the Director General affirmed the original decision to cancel Mr M’s authority.

Jurisdiction

2 Under section 52(1) of the Passenger Transport Act 1990 (the Act) a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision.

Issues and Legislation

3 Section 14 of the Act gives that Director General power to cancel a licence:

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 purpose of an authority is set out in s 11(2) which provides that:

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.

5 The issue in this case is whether the Director General made the correct and preferable decision in cancelling the applicant’s taxi authority.

Evidence and findings

6 Mr Mohammed tendered a “No Objection Certificate” issued by the Government of Pakistan on 4 January 1981 which stated that “The character and antecedents of Mr Muhammed Fiaz have been verified. Nothing adverse against him/her on police record of Punjab Police Crime Branch Lahore have been reported.” There is no evidence to suggest that Mr Mohammed was not a person of good character prior to 1981.

7 In the Statement of Reasons, the Director General set out a chronology of incidents dating from 8 August 1985 to 19 November 1999 as the facts relied on. Each of these incidents will be considered in turn.

8 On 8 August 1985 Mr Mohammed was convicted of offensive behaviour (exposure) by the Local Court and fined $150.00. I cannot find any documentation recording the precise details of this offence on the Department’s file. Mr Mohammed alleged in oral evidence that he was on a train and after checking that no-one could see him, he unzipped his pants to adjust his genitals which were stuck “like glue” on to his pants. This conduct was observed by a woman and her two children who subsequently made a complaint leading to the conviction. On the basis of this evidence I find that Mr Mohammed did indecently expose himself on a train, but I am not able to make any findings about the exact circumstances of that offence.

9 On 6 April 1989, Mr Mohammed was convicted of stealing two cassette tapes by the Bankstown Local Court and fined $200.00. Mr Mohammed admitted to the Tribunal that he was guilty of this offence. I find that Mr Mohammed did steal those goods.

10 On 6 June 1989 Mr Mohammed was convicted by the Local Court of impropriety while the driver of a taxi-cab and fined $100.00. This offence related to an incident which took place on 27 December 1987. According to the Director General a complaint was received by the Department of Transport from the father of an 11 year old girl who travelled in a taxi from Waterloo to Bondi. The young girl’s father stated that during the journey Mr Mohammed continually stopped the taxi and asked the girl to come to his place.

11 Mr Mohammed says in relation to this incident that he picked up the girl and her mother at Redfern, dropped the mother in the city and then took the girl to Bondi. Mr Mohammed said that “I never asked the 11 year old girl to come anywhere . . . ” According to Mr Mohammed, the allegation about asking the girl to come to his place was a result of the father being angry about the fare.

12 In his statement about this incident on 22 August 1989 Mr Mohammed said that:

"I was badly shocked when little girl said in court that I asked her to come to my home. I was very sad to hear that I stop twice and pointed toward houses and asked her to come with me. To me it does not make any sense. I lived in Lakemba that time. It was a radio job I did not know that passenger will be young girl and her mum. I respect women. . . . There is another thing too if I stopped twice and asked little girl to come with me. She must be worried and scared of me. But she was not. She got of at her Dad’s place, went upstair to get money. She come back after short while with money. No one come out with her, not even in the balcony (sic). I gave her the change and left."

13 I did not have the benefit of hearing any evidence from the girl concerned or the father. Mr Mohammed had the opportunity of putting his version and explanation to the Local Court. On hearing and assessing all the evidence, that Court was satisfied that the offence had been made out. Nothing on the file, nor any of the explanations offered by Mr Mohammed, convince me that I should come to a different view of the facts.

14 The next incident occurred on 4 February 1988 when Mr Mohammed accepted a fare from a woman travelling from Greenacre to Sandy Point. In her statement dated 12 February 1988 the woman said that:

"As we became closer to my destination he started making comments about how isolated the area was and how much bush/scrub were around the area. This is when he start making advancements and asking if I lived alone, did I have my own room, and telling me that he could spend the night with me and asking if he could sleep with me. After repeating his comments a few times it was quite obvious to me that he was after sexual intercourse and to spend the night with me."

15 Mr Mohammed said in his statement that:

"The lady told me she was in a hurry to get home so I drove fast . . . I did not ask to sleep with her, all I said was 'If I no have gas I leave the taxi here'. That is all lies about me saying I asked to sleep with her. I did not ask who she lived with I did not ask 'are you alone often'."

16 In a letter of 2 December 1999, Mr Mohammed said “Sandy Point area seem very bushy, I said you live by yourself here, its very bushy and quite (sic) here like jungle. I have not asked or said anything of sexual nature, because I took wrong direction she was unhappy right from the beginning and she used bad language toward me too.”

17 This matter was heard by the Local Court on 6 June 1988 when Mr Mohammed was found guilty of impropriety and fined $100.00. He was also fined $30.00 for failing to drive by the shortest practical route.

18 Again, in relation to this incident, I did not have the benefit of hearing any evidence from the woman concerned. Mr Mohammed had the opportunity of putting his version and explanation to the Local Court. On hearing and assessing all the evidence, that Court was satisfied that the offence had been made out. Nothing on the file, nor any of the explanations offered by Mr Mohammed convince me that I should come to a different view of the facts.

19 On 23 May 1988 Mr Mohammed’s taxi-cab driver’s licence was cancelled on the grounds of these criminal convictions. Following several applications and appeals Mr Mohammed regained his taxi drivers authority on 11 November 1996.

20 On 16 March 1997 the Department received a complaint from a male passenger who asked Mr Mohammed to drive him from Manly to Fairlight. The Department’s records state that “the driver refused to accept the hiring saying that the journey was too short and unless you are going to the city I can’t take you.” In his response, Mr Mohammed said “I do not remember this passenger or incident, there were times when I refused fare when I sense danger to me . . . or when I am finishing shift. Fairlight is on the way to city from Manly why any driver who is going toward city would refuse him even of it is a small fare but still a fare and also the same way.”

21 In oral evidence Mr Mohammed said he might have refused because it was a change of shift or those people may have been dangerous to pick up. There is nothing on the file, or in any of the explanations offered by Mr Mohammed which convince me that the male passenger was not telling the truth in relation to this incident.

22 The final and most significant incident in terms of the latest cancellation decision, relates to a journey on 19 November 1999. The following statement was tendered from a 16 year old girl:

"I booked a taxi through Manly Cabs. An executive cab arrived and I sat in the passenger front seat (because I get car-sick if I sit in the back) The driver offered me some bubble gum and I took a piece. He seemed very friendly. He was talking about the country he came from. He asked me if I could blow bubbles with the gum and when I did, he told me the noise of the bubbles bursting reminded him of “people making love.” He repeatedly told me the same story about overhearing his sister one night blowing bubbles and how he thought she was “making love.” He repeatedly made a noise with his tongue imitating the sound of a bubble bursting and asked me to continue blowing bubbles.
I was feeling very uncomfortable about these sexual references and then I noticed he had only his right hand holding the steering wheel - his left hand was down his pants. He asked who I was meeting and when I told him I was meeting a friend of mine (who is a boy) he repeatedly asked if he was my boyfriend and if I was having sex with him. I told him it was not right for him to ask me these things. His hand down his pants was moving backwards and forwards and his breathing became fast and heavy. Whilst he was doing this, he seemed to lose control of the car and he hit the curb twice. He then said he was unsure where the street we were going was and he passed me the street directory - it had wet mucousy fluid on it: It was very frightened. I called my friend on my mobile and whispered to him that “something really awful was happening.” Shortly after this, we arrived at the destination and my friend (whom I had rung) was waiting at the end of the driveway to see if I was OK. I paid the driver (I didn’t wait for the change) and jumped out. The cab sped off very quickly."

23 The young girl’s father also prepared a statement which corroborated his daughter’s version of events. In particular he said that when his daughter got home at about 11 pm she was “visibly agitated and upset and proceeded to tell me about what had occurred during her taxi trip”. In addition he said that:

"What (my daughter) said she was most distressed about was when the driver put his hand down his pants, and played with himself until he came (ejaculated). At that point in the story I questioned (my daughter) on how sure she was that the previous had occurred. She was adamant . . . ”

24 Mr Mohammed made a statement in relation to this incident on 22 November 1999. In that statement he said that:

"As part of my religion I’m required to shave my pubic area every fifteen days and I was scratching myself. I did not undo my zipper and I was not masturbating.”

25 Mr Mohammed gave oral evidence in relation to this incident saying that he picked up the girl in the afternoon and took her to Hunter’s Hill. He said he gave her the street directory at the beginning of the journey and that she found the street. During the course of the trip he admitted offering her some chewing gum which she accepted. He also admitted telling her that she was too young to have a boyfriend. He said that the young woman asked him if he had any children and when he replied that he had two daughters aged 15 and 12, she invited him and his older daughter to a party at her house the next day.

26 Mr Mohammed said that during the journey someone rang her on her mobile phone. Mr Mohammed said that during the course of the journey he became itchy between his legs and began to scratch. When asked to point out exactly where he was itchy he put his hand between his legs under his scrotum. He said that he scratched there for 2 or 3 minutes the first time and that he scratched again later. He denied that put his hands down his pants or that he was sexually aroused in any way.

27 When he dropped the young woman off Mr Mohammed said that she paid him $40 or $50 (he can’t remember which) and did not wait for the change. He thinks the fare was around $35.00. He does not know why she did not wait for the change.

28 Mr Mohammed admitted that he should not have scratched himself and that he should have had the day off because he was sick.

29 Dr Matter, Mr Mohammed’s treating doctor, gave evidence that Mr Mohammed has been a patient since 1988. He provided a short report dated 2 December 1999 which said that he had treated Mr Mohammed for tinea cruris in the groin area. He prescribed various creams through the period from May to November 1999 and then referred him to a specialist who prescribed some other medications which eventually cleared up the condition. He said that the symptoms of this condition are itchiness which is often worse at night.

30 Dr Matter also noted that Mr Mohammed shaved his pubic area (a practice which he said is not uncommon among Muslim men) but he did not think that this would contribute to any itchiness or irritation in that area.

31 I accept Dr Matter’s evidence that Mr Mohammed had a condition which made him scratch his groin area. However Mr Mohammed’s explanation is weakened by the fact that he did not mention this condition to the Department in his initial statement. All he said was that he shaved that area, and that is why it was itchy. Furthermore Mr Mohammed admitted that he did scratch his groin area, between his legs for 2 or 3 minutes.

32 Mr Mohammed has offered several explanations for the allegations against him, including the latest allegation. One explanation Mr Mohammed offered was that the passengers must have been upset because of alleged overcharging or not going by the most direct route. He also suggested to Dr Canaris, a psychiatrist who was examining him on 5 May 1992 that “there may have been some collusion between the two witnesses.” When questioned about this by theTribunal he said he saw the 12 year old girl and the woman from Sandy Point in court together laughing. He speculated that they may have made up the story together to obtain witnesses expenses. Mr Mohammed also told Dr Canaris that he has been a victim of misunderstanding because of his poor English. In Mr Mohammed’s letter to the Department of 2 December 1999 he wrote: “Now, I understand that I have a problem ie I am Pakistani Australian and my bad is luck that I am a male.”

33 I do not accept any of these explanations. It is highly unlikely that three passengers (the 12 year old girl travelling to Bondi, the woman travelling to Sandy Point and the 16 year old travelling to Hunter’s Hill) would all have fabricated a story involving sexual impropriety merely because they were angry about overcharging or not being driven by the most direct route. The idea of any collusion is not supported by the facts as there was no evidence that the two females concerned knew one another or had spoken prior to attending court.

34 I accept that Mr Mohammed’s English is poor, but I am also convinced on the basis of the statements and convictions that the woman concerned, in particular the 16 year old and the woman travelling to Sandy Point, had no doubt whatsoever about Mr Mohammed’s meaning. Mr Mohammed’s feelings about discrimination are not based on any evidence.

35 The latest incident on 19 November 1999 poses more difficulties from an evidentiary point of view because I did not have the benefit of hearing oral evidence from the girl or her father and the matter has not been tested in a court. Even so, I am satisfied that the events as alleged by the young girl occurred as stated. The evidence of her father corroborates her allegations because she complained immediately on getting home. Even when the father questioned her about her allegation that Mr Mohammed had masturbated, she was adamant and was able to give a detailed account supporting these allegations. There was no reason suggested as to why the girl concerned would make up a story like that. Furthermore Mr Mohammed has a history of indecent exposure and of denying allegations of sexual impropriety on two other occasions.

36 Mr Mohammed also gave evidence about the financial hardship that his inability to earn a living driving taxis would cause.

Application of law and decision

37 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."

38 “Repute” is defined in the Macquarie Dictionary (Third Edition) to mean “estimation in the view of others; reputation.”

39 The respondent’s discretion to cancel a taxi authority is a broad one but must be informed by the purpose of the authority as set out in section 11 of the Act.

40 To be “of good repute and in all other respects a fit and proper person” to drive a taxi the community must have confidence that the applicant would behave appropriately in relation to all passengers.

41 On the basis of the findings I have made Mr Mohammed is not of good repute nor is he a fit and proper person to be the driver of a taxi. The convictions for indecent exposure and sexual impropriety and the most recent incident of sexual misconduct are extremely serious matters indeed. Mr Mohammed protests that he has not touched anyone, much less raped them. He also says that if he was a criminal, why isn’t he committing offences all the time? These statements indicate that Mr Mohammed does not appreciate the standard of behaviour expected of a taxi driver. Regardless of Mr Mohammed’s conduct at any other time, it is not acceptable to ask a young girl to come to his place; it is not acceptable to ask a woman to have sex and it is not acceptable to scratch his groin area much less to masturbate in front of a passenger These matters make MrMohammed unfit to be a taxi driver.

42 I am satisfied that the Director General has made the correct and preferable decision in cancelling the applicant’s authority. Accordingly, pursuant to s 63 of the Administrative Decisions Tribunal Act 1997 I order that the respondent’s decision to cancel the applicant’s taxi authority is affirmed.