Smith v Director-General of Transport

[2004] WASCA 64

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SMITH -v- DIRECTOR-GENERAL OF TRANSPORT [2004] WASCA 64

CORAM:   EM HEENAN J

HEARD:   23 FEBRUARY 2004

DELIVERED          :   6 APRIL 2004

FILE NO/S:   SJA 1150 of 2002

MATTER                :Justices Act 1902

BETWEEN:   NEVILLE RAYMOND SMITH

Appellant

AND

DIRECTOR-GENERAL OF TRANSPORT
Respondent

ON APPEAL FROM:

Jurisdiction              :  COURT OF PETTY SESSIONS

Coram   :Mr D Imlah SM

File Number            :  KA 4400 OF 2002

Catchwords:

Appeal - Justices Act - Road Traffic Act 1974, s 48(1)(a) - Cancellation of taxi driver's licence - Requirement to be of good character to hold driver's licence - Review of decision to cancel licence by Court of Petty Sessions - Apprehension of bias - Magistrate conducting review presided over trial leading to conviction of applicant for assault - Evidence - Hearsay

Legislation:

Road Traffic (Drivers Licences) Regulations (1975)

Road Traffic Act (1974), s 48
Taxi Act (1994)

Transport Co-ordination Act (1966)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr J A Marquis

Respondent:     Mr N C Monahan

Solicitors:

Appellant:     Bruce Havilah & Associates

Respondent:     State Solicitor

Case(s) referred to in judgment(s):

Commissioner of Police v Shane Robert Plumb, unreported; SCt of WA; Library No 6009; 20 September 1985

Coulthard v Henneker [2003] WASCA 18

Ebner v Official Trustee (2000) 205 CLR 33

Johnson v Johnson (2000) 201 CLR 488

Livesey v NSW Bar Association (1983) 151 CLR 288

Long v Mayger [2004] WASCA 41

McCleary v Director of Public Prosecutions (Cth) (1988) 20 WAR 288

McCreed v The Queen (2003) 27 WAR 554

Mickelberg v Director of Perth Mint [1986] WAR 365

Smith v Hope [2001] WASCA 287

Smith v Hope [2001] WASCA 287

Sobuy v Commercial and Private Agents Board (1979) 22 SASR 70

Stepney Borough Council v Joffe [1949] 1 KB 602

Tavelli v Johnson, unreported; SCt of WA; Library No 960693; 25 November 1996

The Registrar Real Estate and Business Agency and Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997

Vakauta v Kelly (1989) 167 CLR 568

Ziems v The Prothonotary at the Supreme Court of NSW (1957) 97 CLR 279

Case(s) also cited:

Ex parte Tziniolis [1967] 1 NSWR 357

Good v Medical Board of Western Australia, unreported; SCt of WA; Library No 940678; 6 December 1994

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration v Jia Legeng (2001) 205 CLR 507

R v Australian Broadcasting Tribunal, ex parte Two HD Pty Ltd (1979) 27 ALR 321

R v Michael Somes; ex parte Francis Woods [1998] SCACT 11

Re Finance Sector Union; Ex parte Illaton Pty Ltd (1992) 107 ALR 581

Watson; ex parte Armstrong (1976) 136 CLR 248

X v Commonwealth of Australia (1999) 200 CLR 177

1. EM HEENAN J:  This is an appeal, by leave granted by Pullin J on 20 August 2003, from the decision of his Worship Mr D Imlah SM in the Court of Petty Sessions at Kalgoorlie on 2 December 2002.  By that decision his Worship dismissed an application made by the appellant under subsections 48(4) and (5) of the Road Traffic Act 1974 ("the Act") to review an earlier decision of the Director‑General of Transport made under s 48(1)(a) of the Act to cancel the appellant's endorsement for a taxi driver's licence on the grounds that the Director‑General had reason to believe that he was not of good character.

2. The decision of the Director‑General to cancel the appellant's driver's licence under subsection 48(1)(a) followed the appellant's conviction in Kalgoorlie on 5 August 2002 for assault causing bodily harm to a passenger in a taxi which he was driving.  The appellant had pleaded not guilty to that charge but had been convicted after a trial before his Worship Mr D Imlah who, as already indicated, was the Magistrate who heard and determined the application for review of the Director‑General's decision.

3. Under the Road Traffic (Drivers Licences) Regulations 1975 – reg 5(3) a driver's licence may be endorsed as a class T, in which case the licence confers the authority to drive a motor vehicle to which the licence is appropriate for the purposes of carrying passengers for reward, whether or not as a taxi under the Taxi Act 1994 or the Transport Co‑ordination Act 1966.  One of the criteria for the endorsement of a class T, of which the Director‑General must be satisfied, is that the person seeking the endorsement is of good character (sub regulation 5(4)(d)).

4. Following the conviction of the appellant on 5 August 2002 for the offence of assault occasioning bodily harm the Director‑General, acting under s 48(2) of the Act, notified the appellant, that he suspected that grounds may exist for a suspension or cancellation of his driver's licence, and required him to satisfy the Director‑General that the Director‑General would not be empowered to so suspend or cancel his driver's licence on the ground or grounds specified in subsection 48(1) of the Act. This led to the appellant being interviewed in Kalgoorlie by two police officers who were acting on behalf of the Director. The interview took place on 20 September 2002 and was conducted by two sergeants who had not been involved in the investigation or prosecution of the assault charge, but who had access to the appellant's record of convictions. In the result Sergeant N J Murphy, who had conducted the show cause interview with Sergeant C Weatherald, recommended to the Director‑General that the appellant was unfit to hold a taxi driver's licence. Consequently, by notice dated 3 October 2002, and served on the appellant on 15 October 2002, his taxi driver's licence endorsement was cancelled. This notice was as follows:

   "NOTICE OF CANCELLATION OF DRIVER'S LICENCE T ENDORSEMENT
   ___________________________________________________

   Take notice that pursuant to the provisions of paragraph (a) of subsection (1) of section 48 of the Road Traffic Act I hereby cancel your driver's licence T endorsement on the grounds that:-

   YOU ARE NOT OF GOOD CHARACTER.

   Should you be aggrieved by this decision, you may, within a period of thirty (30) days of the service of this Notice apply by way of complaint to a Court of Petty Sessions for a review of this decision.

   Dennis Forte

   Executive Director Service Delivery

   3.10. 2002"

5. This led to the appellant issuing a complaint out of the Court of Petty Sessions at Kalgoorlie on 1 November 2002 seeking a review of the decision of the Director‑General to cancel the taxi driver's licence endorsement on 15 October 2002.

Grounds of appeal

1. The grounds of appeal to this Court, as further amended by leave at the hearing, can be summarised as follows:

   The learned Magistrate erred:

   (1)by applying the wrong test of good character pursuant to the legislation;

   (2)by proceeding to hear and determine the application for review in the face of objection by the appellant that because the learned Magistrate had presided over the trial which led to the appellant's conviction on the charge of assault causing bodily harm and, in particular where that trial had involved his Worship in making a decision adverse to the credibility of the appellant, there was a reasonable apprehension of bias arising from his Worship hearing and determining the review application;

   (3)in admitting hearsay evidence from the witness Condipodero about the circumstances of the assault of which the appellant had been convicted;

   (4)in failing to direct himself properly about the reasons for the decision of the Director‑General to cancel the T endorsement on the appellant's licence and in failing to obtain a transcript or written record of the proceedings being reviewed;

   (5)in giving weight to irrelevant considerations, namely:

   - the appellant's driving conviction in 1977;

   - erroneous considerations of the requirements for good character;

   - the extent to which the appellant had fully informed his character referees of his previous criminal record;

   (6)in failing to place sufficient weight upon the appellant's character references and his preceding good driving record of many years;

   (7)in making the following errors of fact:

   -failing to establish the factual circumstances of the assault;

   -failing to establish the factual circumstances and manner of the decision of the Director‑General of Transport;

   -failing to ascertain the factual circumstances of the assault and in relying on hearsay evidence in this regard.

2. It can be seen that these grounds of appeal include alleged errors of law and fact by the learned Magistrate in failing to ascertain the circumstances and details of the decision of the Director‑General to cancel the T endorsement on the appellant's licence; in failing to obtain more details of the reasons for decision of the Director‑General; and in failing to obtain a transcript or written record of those proceedings. These grounds of appeal were not pursued in the appellant's written submissions or at the hearing of the appeal. That is not surprising because subsections 48(4) and (5) of the Act confer on an applicant a right of review on the merits which is in substance and effect a right of hearing de novo: Smith v Hope [2001] WASCA 287 per McLure J at [28]. The grounds of the respondent's decision to cancel the endorsement were in evidence and were that the respondent was not satisfied that the appellant was of good character. In this case, where no complaint was made against the process carried out by the police officers in the course of the show cause interview conducted under s 48(2), nor any suggestion made that the resulting recommendations of those officers to the respondent were based on any errors of fact or other mistakes, it was quite unnecessary for the learned Magistrate to enquire into or review those materials. It was the decision by the respondent that the appellant was not of good character which was open to review and not the conduct or result of the s 48(2) interview. It is therefore unnecessary to examine those grounds any further.

3. While it will be necessary to deal with each of the remaining grounds of appeal, the principal focus by the appellant's counsel, in the written and oral submissions of hearing were on the following four grounds, namely alleged apprehension of bias; admission of hearsay evidence, error of law in relation to the requirements for good character and reliance by the reviewing Magistrate on other earlier convictions which, so it was submitted, were not relevant for consideration on this review.

4. As the cancellation of the T endorsement on the appellant's driver's licence followed the appellant's conviction for assault occasioning bodily harm on 5 August 2002, and because of the appellant's submission that, having presided over that trial, the learned Magistrate should not have heard and determined the review application under subsection 48(4) and (5) it is necessary to examine in some detail the background of that assault offence and the course of the trial before Mr D Imlah SM which resulted in the conviction.

Conviction for assault causing bodily harm

1. The appellant was charged with assault causing bodily harm to Michael Garland on the evening of Saturday, 28 July 2001.  Garland, and two friends, Sharon Touty and Bill McClutchie, had been at the Kalgoorlie races that afternoon and afterwards had been drinking for about three hours at the Star and Garter Hotel.  These persons called a taxi and were picked up by the appellant outside the Star and Garter Hotel at about 10.00 pm and they asked to be taken to 15 Salisbury Street.  The three passengers had plainly been affected by the liquor that they had consumed and were somewhat loud but not threatening.

2. On arrival at the destination Garland discovered that he had lost his house key and left the others at the vehicle while he went round the back to gain entry to the premises and, having done so, came back to the vehicle.  By then there was some argument going on between the other two and the appellant who alleged that one of the two had stolen his wallet.  Money was offered to the driver for the payment of the fare but the argument continued.  It was at that point that Garland was "clobbered" with a stick by the appellant.  The stick had been obtained by the appellant from under the front seat where, it was kept in case there was a need for protection.  This stick was about 80 centimetres in length.  The appellant drove off and made no report of the matter to the police.

3. The incident was later reported to the police by Garland and the police interviewed the appellant sometime later.  His statement was to the effect that McClutchie and Touty had been struggling, that there was an argument developing about the payment of the fare and his missing wallet when Garland returned and began threatening the appellant.  The appellant claims that he felt alarmed and struck out suddenly in self defence to protect himself, hitting Garland only once.  Garland was conveyed to hospital by ambulance.

4. At the time the appellant, Smith, was aged 45 years or thereabouts and Garland was 26 at the date of trial.  His injuries were two black eyes, swelling around the right side of the head in the region of the ear and face.

5. The appellant's version of events was that during the taxi journey from the Star and Garter Hotel to the destination in Salisbury Street the man in the back, McClutchie, was loud and argumentative and, on arrival at Salisbury Street became impatient about a delay in paying the fare and started yelling and shoving the young woman pulling her towards the house.  She had offered the driver $20 for the fare and was waiting for change but the appellant could not find change as he had lost his wallet.  The appellant became alarmed about the loss of the wallet and searched around the interior of the car in the hope of finding it.  In the process, he asked McClutchie if he had seen the missing wallet.  According to the appellant McClutchie took this as an accusation that he had stolen the wallet and an argument began.  At this point Sharon Touty was still waiting for change to be given for the $20 note but the appellant could not find his wallet to give this.  Garland, who by then had returned, said that if he (the appellant) would not take the money he would get nothing and swore at the driver.

6. According to the appellant Garland then said that he would "smash his head in" and moved towards him in a threatening fashion.  Fearing attack the appellant took the stick and hit him across the side of the head with it as a form of self protection.  There was some uncertainty on the evidence whether the stick came from beneath the driver's seat or from the boot of the taxi which the appellant opened during the course of the argument but nothing turns on this.

7. The substance of the learned Magistrate's decision on the critical issues in the assault case can be found in some short passages from his Worship's reasons for decision:

   "I find that looking at Mr Garland, he would be, even intoxicated, unlikely to behave in a threatening fashion.  My view is that there was an argument over the wallet.  The accusation was made by the defendant initially and there was a reaction to that and things went from there where the defendant emerged from the taxi and was hostile.

   Whether the …. Mr Garland was standing on the roadway or near the taxi and there had been an argument about the wallet I think is … probably … ultimately it's not the sole issue.  I find that Mr Garland would have been very unlikely to be threatening the defendant and feel that Mr Smith has then taken hold of the waddy or the stick, just the exhibit in these proceedings and assaulted Garland causing him bodily harm.  I am satisfied to the requisite standard that all the elements in the offence are proved.  I am also satisfied that the self defence is not applicable in this situation as I'm not satisfied that Garland was an aggressor on the facts …"

8. Plainly, the decision by the learned Magistrate on the trial for the offence of assault occasioning bodily harm involved his Worship making a finding on the facts which rejected the version of events which the appellant (defendant) had given, both to the police in his interview and in the course of his sworn testimony. It was, of course, open to the learned Magistrate to make such a finding and it necessarily involves a finding on credibility adverse to the appellant on that occasion. On the charge of assault the appellant had been represented by counsel who had appeared for him at the proceedings, cross‑examined the witnesses for the complainant, led evidence from the appellant himself and who made submissions to the presiding Magistrate. However, in relation to the review proceedings under s 48(4) and (5) the appellant was not legally represented and conducted those proceedings himself. As will be seen this had a significant bearing on the course which the review proceedings took and this, in turn, affects the significance of the submissions which were advanced in support of the appeal.

Apprehension of bias

1. The appellant's application for review initially came before his Worship Mr D Imlah SM in Kalgoorlie on 28 November 2002.  On that occasion, Smith, appearing on his own behalf, asked if the matter could be transferred to Perth "because I just feel like I'm being victimised here because I haven't done anything wrong here".  In response to questions from his Worship the appellant said that if it could be transferred to Perth he could get a Perth lawyer whereas he could not even get legal aid in Kalgoorlie.  All this took place at a hearing where the principal focus seems to have been an effort to list the review hearing for trial as soon as possible because of the hardship that the lack of licence was causing the appellant.  In the result the matter was given an early hearing for 2 December 2002 when, as already mentioned, it was heard.

2. However, in his affidavit sworn 5 August 2003 in support of the application for leave to appeal, the appellant says that in November 2002 he was concerned that the hearing was going to take place before the same Magistrate who had earlier, in August, convicted him of assault. He says that he raised his concerns with the Magistrate requesting that the matter be transferred to Perth for a hearing and that the reason that he made that request was partly because he believed that the same Magistrate who had convicted him of assault would not impartially consider his appeal under s 48(4) of the Act. The appellant's affidavit deposes that he felt unable to voice his strong objection to Magistrate Imlah regarding his prejudgment of his appeal and simply advised him that he felt he was being victimised and that he needed legal aid rather than saying to him that he did not believe he would obtain a fair hearing before him. In the same affidavit the appellant says that, when he attended the Court in Kalgoorlie, on 2 December 2002, for the hearing of his review application he discovered that it was listed for hearing before the same Magistrate. He says that he believed that were he to object again unsuccessfully it may have a significant impact on the outcome of the review final hearing. He said that he still believed that it was not possible for him to obtain a fair or impartial hearing before that Magistrate.

3. The transcript of the proceedings before Mr Imlah SM both on 28 November and at the eventual hearing on 2 December 2002 contains no reference to any submission made to the effect that the learned Magistrate should decline to hear the review application because of his prior involvement in presiding over the trial on the charge of assault causing bodily harm.  There is a reference in the transcript on 28 November to the appellant's application to have the matter transferred [remanded] to Perth and to his feeling victimised in Kalgoorlie because he had done nothing there but the explanation given for those submissions was the prospect of obtaining legal representation or legal aid in Perth.  There was no reference, directly or indirectly, to the possibility of bias or apprehension of bias if the review hearing were to be conducted by Mr Imlah SM.  This is not fatal to this ground of appeal because, if there were a reasonable apprehension of bias then, in my view, the appellant, who was without any legal representation, would be entitled to have the decision on the case set aside and for a new hearing to be directed before a different Magistrate because of the general public interest of ensuring that the public administration of justice is achieved in circumstances in which reasonable members of the public would have confidence that the proceedings were being conducted fairly and impartially according to law.  The position would be different if, when legally represented there had been an express or tacit waiver of a right to object on these grounds – cf Vakauta v Kelly (1989) 167 CLR 568 at 572 and 587.

1. It is evident that the appellant laboured under the misunderstanding that, at the hearing of the review application under s 48(4) and (5) he would be able to recontest the issues determined at the trial of the assault charge with a view to showing that he was wrongly convicted and that, therefore, there was no basis for the conclusion that, because of the conviction, he was not a person of good character and thereby ineligible to hold a taxi driver's licence. This mistaken belief led the appellant repeatedly to make submissions at the review hearing that the events outside 15 Salisbury Street on the evening of 28 July 2001 were not as narrated by Michael Garland or by Sharon Touty or as determined by the Magistrate after trial. He persisted in an attempt to establish that there were discrepancies in the evidence of the various witnesses for the prosecution which should have led to the dismissal of the charge.

2. This course was never open to the appellant.  The issues arising on the assault charge had been heard and finally determined by the learned Magistrate's decision.  No appeal having been instituted from that decision it remained final and binding.  It could not be attacked or called into question by a collateral attack in the review proceedings:  Mickelberg v Director of Perth Mint [1986] WAR 365. There was no attempt to adduce fresh evidence by the appellant to displace the significance of the conviction nor was there any suggestion that there was material which entirely changed the aspect of the case since the conviction had occurred. What the appellant effectively sought to do was to engage in a rehearing of the issues which had been determined at the trial of the assault charge: see also McCleary v Director of Public Prosecutions (Cth) (1988) 20 WAR 288 per Ipp J at 312.

3. Consequently, the issues determined at the trial of the charge for assault occasioning bodily harm were not open for reconsideration at the review hearing. The question for determination on the review hearing was whether or not the appellant was of good character sufficient for him to retain a taxi driver's licence as required by s 48(1) of the Act in the light of all his personal circumstances but particularly having regard to the fact that he had recently been convicted of the offence of assault occasioning bodily harm. The task required of the Magistrate conducting the review was, therefore, to consider the overall character of the appellant in the light of the fact that he had recently been convicted for that offence in circumstances where the assault involved occurred in the course of his occupation as a taxi driver and involved the appellant using a weapon to inflict injury upon a passenger in the course of an argument which developed between the driver and three passengers over payment of the fare.

4. In this regard the particular facts which must be taken to have been established by the conviction needed to be considered to ascertain the way upon which they revealed or reflected the character of the appellant.  The ultimate issue for determination was whether or not the appellant was of sufficiently good character to hold a taxi driver's licence.  Proof of his conviction causing bodily harm did not make it inevitable that he was not of sufficient character to hold that licence but it is certainly a telling fact.  The role of a court in reviewing a decision on that ultimate issue must have regard to his overall character and the requirements of the occupation for which the licence is necessary – compare Ziems v The Prothonotaryat the Supreme Court of NSW (1957) 97 CLR 279.

5. This may involve the court scrutinising the conviction which is relied upon in the case before it to demonstrate unfitness to practice a profession, hold a licence, or obtain some other right or privilege in order to identify what facts the conviction necessarily establishes and which must, therefore, be taken to be conclusively proved in the absence of some fresh evidence or other factor (such as the institution of a separate action to set aside a conviction or judgment on the grounds that it was obtained by fraud).  In such circumstances the court will need to examine the issues in the case, as established from the formal charge or indictment and the plea made in answer to it, and the factual issues upon which the determination of guilt turned in those circumstances.  In doing this the court will naturally have regard to any reasons for decision given by the court, where there are any, and the terms of any special verdict which might have been given by a jury.  Similarly, sentencing remarks may be helpful in identifying what was necessarily established by the conviction.  Beyond these matters, however, there are always likely to be collateral or peripheral issues in a case contested by the parties, the determination of which is not essential to the decision on the ultimate issue, or which, perhaps, may remain unresolved by the ultimate decision.  It will not always be possible, when viewing the record of conviction, or the reasons for judgment in another case, to conclude that there was a particular resolution of some such collateral or peripheral issue or that such resolution of it as may appear from reasons for decision was an essential part of the decision of the court on that ultimate issue.  This means that the scrutiny of a prior conviction must be undertaken with some discrimination in order to identify what are its essential and necessary implications rather than those conclusions or implications which may not be binding or conclusive in that sense.

6. In the present case, therefore, this approach needed to be taken to all matters which affected the character of the appellant for the purposes of determining whether or not he was of sufficiently good character to hold a taxi driver's licence.  Included in that consideration are those findings of fact which formed the essential foundation for his conviction on the charge of assault occasioning bodily harm whereas findings on other non‑essential issues of fact in the assault proceedings could not be regarded as conclusive.  As well, those findings needed to be considered against all the material background facts and any additional evidence which the appellant produced in relation to his general good character and, in particular, his suitability to hold a taxi driver's licence.

7. So far as concerned the respondent's decision to cancel that licence the learned Magistrate was not concerned to determine the basis upon which the decision had been reached but, instead, was required to exercise his statutory jurisdiction to review the decision.  This jurisdiction was the subject of examination by Pidgeon J in Commissioner of Police v Shane Robert Plumb, unreported; SCt of WA; Library No 6009; 20 September 1985 where the power to suspend or cancel a licence under s 48(1) of the Road Traffic Act then reposed in the Traffic Board but which is, otherwise, indistinguishable from the position which applies in the present case.  In that regard Pidgeon J said (at page 5):

   "The Board is given very wide power, but it is subject to review.  The first intended area of review would clearly be to determine if the factual situation that would give rise to the power to refuse to issue or to suspend or cancel exists.  The Board may exercise its powers by reason of its having a reason to believe in a state of facts which a review and a full hearing of evidence might indicate does not in fact exist.  If the facts giving rise to the exercise of the Board's power do exist, then it would appear that the Court of Petty Sessions has a wide power to review the decision actually made thereon.  In this case the court would be reviewing a discretion which the Board has."

   And later, in the same case, addressing the approach which this Court should take to the exercise of that power Pidgeon J cited a passage from the judgment of Goddard CJ in Stepney Borough Council v Joffe [1949] 1 KB 602 to the effect that, in exercising the power of review under subsections 48(4) and (5), a court of petty sessions may substitute its own opinion if it is satisfied that the decision of the Director was wrong but that due regard should be had to the opinion of the statutory officer empowered to make that decision and that it should not be lightly reversed. Perhaps another way of expressing this is to emphasise that, in a case such as the present, there is an onus upon the applicant/appellant to show that the decision of the Director was wrong, just as in any appeal, including this one, there is an onus upon the appellant to establish that the decision under appeal is wrong and should be set aside or varied.

8. Such an appreciation of the role of the Magistrate in the Court of Petty Sessions exercising the power of review under s 48(4) and (5) together with an identification of the issues which the learned Magistrate should have addressed in the course of that review is needed in order to evaluate the submission by the appellant that the fact that his Worship Mr D Imlah SM undertook this role, when he had presided over the assault trial, gives rise to an apprehension of bias. Only when it is appreciated just what and how the learned Magistrate was called upon to do can one then consider whether or not, in the mind of a fair minded lay observer, there may be any reasonable apprehension of bias.

Reasonable apprehension of bias

1. In Ebner v Official Trustee (2000) 205 CLR 337, in a joint judgment at 345, Gleeson CJ, McHugh, Gummow and Hayne JJ explained that the application of the principles to be applied when there is a submission of apprehension of bias requires two steps. The first step is the identification of what it is that might lead a Judge, Magistrate or a juror to decide a case other than on its legal and factual merits. The second step, no less important is to state the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. Their Honours went on to point out that the bare assertion that a Judge or Magistrate had an "interest" in litigation or an interest in a party to it would be of no assistance until the nature of the interest and the asserted connection with the possibility of a departure from impartial decision making was expressed – see also McCreed v The Queen (2003) 27 WAR 554 and Long v Mayger [2004] WASCA 41 per McKechnie J at [41].

2. Ebner (supra) was a case where the alleged apprehension of bias was said to arise from the fact that a Judge hearing a civil case had a shareholding in a publicly listed company which was a party to the action.  The High Court held, that in the circumstances of that case, this was not sufficient to cause any reasonable apprehension of bias.  Johnson v Johnson (2000) 201 CLR 488 was a case where an application had been made for a Judge in Family Court proceedings to disqualify himself on the grounds of apprehension of bias on the basis that remarks which he had made during the course of the hearing may have given rise to such an apprehension. The principle is to be found in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [11]:

   "It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of pre‑judgment) is whether a fair open minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide."

3. Turning to cases in which submissions that a judicial officer displayed indications giving rise to a reasonable apprehension of bias have ultimately been upheld brings me to the cases of Vakauta v Kelly (supra) and Livesey v NSW Bar Association (1983) 151 CLR 288. The former was a case in which a Judge in the trial of an action for damages for personal injuries in the Supreme Court of New South Wales made remarks concerning the credibility of one of the defence medical witnesses in the course of his reasons for judgment that the witness' evidence was "negative as it always seems to be …" and that "even Dr Lawson thought …" which were taken to be suggestive of the possibility that the Judge's determination of issues in that trial had been influence by views he had formed on other occasions and that, therefore, the case had not been determined on the evidence at the trial.

4. In Livesey v NSW Bar Association (supra) a decision of the Supreme Court of New South Wales Court of Appeal Division was set aside because two of the members of the Court had, on a previous occasion in which the applicant had been neither a party nor a witness, expressed adverse opinions about the subject matter of the litigation and the credit of a person who was to give evidence at the hearing before the Court of Appeal.  At that hearing there was a possibility that a witness might be called to give evidence that certain money ($10,000 in cash) which had been used to post bail for a person charged with a serious offence had been lent to the lawyer in question by a relative of the prisoner.  In earlier proceedings two of the Judges, who ultimately sat in the Court of Appeal, in different proceedings involving different parties, but concerning the same witness, made findings of serious misconduct by her in relation to the source of the money used for bail and rejected her testimony as false.  In quashing the decision of the Court of Appeal, to which those same two Judges had been party, the High Court said (at 299):

   "But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court (see Hannam v Bradford Corporation [1970] 1 WLR 937 at 949; Reg v Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119 at 123."

   And, at page 300 their Honours said:

   "It is, however apparent that in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair‑minded observer might entertain a reasonable apprehension of bias by reason of pre‑judgment if a Judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about either a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.  The consideration that the relevant question of fact may be conceded or that the relevant person may not be called as a witness if a particular Judge sits would not, of course, avoid the appearance of bias.  To the contrary, it would underline the need for the Judge to refrain from sitting." (emphasis added)

5. Again one is directed to identify the issue which is in contest and which must be decided by the judicial officer whose prior conduct or experience is said to preclude him from performing that role on the grounds of a reasonable apprehension of bias.

6. On the review before him his Worship Mr D Imlah SM was required to consider whether or not the appellant could show that he was of sufficiently good character be granted an endorsement for a taxi driver's licence.  The consideration of the meaning of good character in comparable contexts can be found in a series of authorities including those examined by Barker J in Coulthard v Henneker [2003] WASCA 187 and, in that regard, perhaps the most helpful decision in the present case was that of the Full Court in The Registrar Real Estate and Business Agency and Supervisory Board v Barnett, unreported; FCt SCt of WA; Library No 970426; 26 August 1997, and in particular, the judgment of Kennedy J.  In that case his Honour referred to what Walters J said in Sobuy v Commercial and Private Agents Board (1979) 22 SASR 70 at 76:

   "The issue of whether an appellant has shown himself to be 'a fit and proper person', within the meaning of s 16(1) of the Commercial and Private Agents Act (SA) is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further enquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR(NSW) 433 at 422)."

7. And, in considering what effect a conviction for an offence may have upon the issue of a person's good character sufficient to hold a licence or fill some particular occupation Wheeler J said in Tavelli v Johnson, unreported; SCt of WA; Library No 960693; 25 November 1996:

   "In Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156, Dixon CJ and McTiernan and Webb JJ said:

   'The expression "fit and proper person" is, of course, familiar enough as traditional words when used with reference to offices and perhaps vocations but their very purpose is to give the widest scope for judgment and indeed for rejection …'

   It must be stressed therefore that there can be no inflexible rules and no policy but that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework.

   With that caution borne firmly in mind, however, some factors relevant to prior convictions can be listed.  Convictions will, in my view, generally be regarded as more serious in the statutory context if:

   (1)they occur in the course of or relate to the carrying out of the occupation or enquiry agent.  See New Broadcasting Ltd v Australian Broadcasting Tribunal (1937) 73 ALR 420;

   (2)they are offences of dishonesty, broadly understood. This is so because, as I apprehend it, the Act is concerned with the integrity of the gathering and presenting of material in Court and that material may be suspect, where the character of the agent suggests dishonesty;

   (3)they occur while the person is the holder of a licence under the Act;

   (4)they are otherwise so serious, even in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them.

   Indications that a person may be of good character and a fit and proper person notwithstanding previous convictions may be gleaned from the following factors:

   (1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding at the earlier turpitudes.  See Good v Medical Board of WA, unreported SCt of WA; Library No 940678; 6 December 1994 at 31 and the cases there cited.  The understanding demonstrated would generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;

   (2)if the offences were committed  a substantial time ago.  I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on the additional factors I list and, in appropriate cases, on others;

   (3)any changes in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;

   (4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references.  As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences."

1. Accordingly, the factors listed by Wheeler J, just cited were all factors which were material to the decision by his Worship Mr D Imlah SM on his review of the decision of the respondent.  It is notable, however, that none of the factors includes any examination of whether the conviction which was relied upon by the respondent as demonstrating absence of good character was correct, or whether any of the essential facts upon which it was based was challenged.  For reasons already canvassed that could not be done in these proceedings.  Rather, the decision for the learned Magistrate was to determine the significance of the conviction in the light of all the evidence which the appellant presented and having regard to the occupation for which the licence was sought.

2. That being the case I do not see how any reasonable independent lay observer could hold the view that because the learned Magistrate had convicted the appellant of the offence of assault causing bodily harm on the previous occasion, that in later proceedings, where that conviction could not be challenged, the learned Magistrate would fail to bring a fair and impartial mind to the wider question of whether or not a decision by the respondent that the appellant was not of good character should be overturned and a positive finding made that, for the purposes of s 48(1) of the Act he was of a sufficiently good character to hold a taxi driver's licence. The questions are distinct, the earlier determination of facts by the conviction was not determinative of the issue to be decided but, rather, was part of a background against which the wider question had to be decided.

3. The difficulty in the present case is that the appellant, quite wrongly, believed that during the review proceedings under s 48(4) and (5) of the Act he was entitled to challenge his conviction for an assault as if it were an appeal. He attempted to do so and his attempts were properly rejected by the learned Magistrate. Plainly the learned Magistrate could not have sat on an appeal from his own decision but that was not what he was doing nor any part of his function on the review. Because of his mistaken expectation about the course open to him in the review proceedings, the present appellant seems to have concentrated mainly on attempting to show that the facts supporting his conviction were wrong and only gave subsidiary attention to the issues of whether or not he was a person of good character who demonstrated the characteristics identified by Wheeler J in Tavelli v Johnson (supra) which might mean that the conviction could be taken as an illustration of exceptional and abberrent behaviour on his behalf most unlikely to be repeated and that, otherwise, the applicant was of good character.

4. In taking the approach which he did the appellant largely overlooked the more serious features of the conviction, namely, that the offence involved his conduct while holding a taxi driver's licence and in the exercise of that occupation; that it involved him in an assault with a weapon upon a passenger; and that he still persisted in attempting to contend that his conduct on that occasion was justified.  In these circumstances there can be no scope for the appellant to complain that the learned Magistrate had previously expressed a concluded view about his guilt on the charge of assault, when that was not an issue which was, or could have been, contested in the review proceedings.  The complaint that the learned Magistrate should not have presided over the review, because of a reasonable apprehension of bias, is therefore misdirected and misconceived and must be rejected.

Admission of hearsay evidence

1. This ground of appeal is directed to the course of the evidence‑in‑chief of Mr Condipodero on the review proceedings, where this witness had been called to give character evidence in support of the appellant's application, and the appellant himself asked him some questions about events which had followed the assault in August 2001. Mr Condipodero said that a few days after the incident he had been telephoned by an unnamed person who claimed to have been bashed by a driver carrying a baseball bat. Apparently the appellant sought to adduce this evidence in an attempt to demonstrate that the actual events of the assault occurred in a manner inconsistent with the evidence led and accepted at his trial. Counsel for the respondent immediately objected to this evidence on the grounds that it was hearsay and his Worship seems to have appreciated this but nevertheless allowed it to proceed saying that he would reduce its weight "to the requisite degree". However, his Worship expressly referred to the evidence in his reasons for decision saying that it "was quite clearly inadmissible in the full guise of applying the strict rules of evidence. I have reduced its weight accordingly, if, in fact, I should have allowed it to be given at all". Unfortunately, this observation clearly implies that some weight, was attributed to what is plainly inadmissible evidence and, therefore, the learned Magistrate was in error, both in admitting the evidence and in granting some significance to it, even if only very small. This ground of appeal is therefore made out but I consider that no substantial miscarriage of justice can possibly have occurred as a result of the admission of this evidence, the more so as it was directed to an issue which was not then before the court. Accordingly, I consider that I should exercise the powers available to me under s 199(1)(b) of the Justices Act notwithstanding that this ground of appeal has formally been made out.

Reasons for decision

1. In several of the grounds of appeal the appellant has contended that the learned Magistrate failed to direct himself properly with regard to the reasons for decision of the respondent, failed to obtain a transcript or written record of the proceedings and failed to establish the factual circumstances of the assault either generally or in relation to the respondent's decision to cancel the appellant's taxi driver's licence. I have already addressed the substance of these grounds when dealing with the scope of the review hearing under subsections 48(4) and (5) because, as then explained, that review is a hearing de novo of the question of the suitability of the appellant to hold the desired licence. The respondent must give reasons for refusing or cancelling a licence when acting under s 48(1). The scope of the reasons required has been reviewed by McLure J in Smith v Hope [2001] WASCA 287. In that case the Director‑General gave notice of his decision to refuse to issue a licence under s 48(1) of this Act setting out reasons by reference to the statutory criteria in subsection 48(1)(b) – (addiction to alcohol or drugs). With respect, I agree with McLure J and do not consider that in this case there has been any error of law demonstrated by the learned Magistrate at the review hearing accepting, as adequate, the reasons for decision given by the Director. The learned Magistrate was not reviewing those reasons for decision nor scrutinising them in order to determine whether any error of law or fact had been made but, rather, was conducting a fresh hearing.

Taking into account irrelevant considerations

1. The appellant submits that the learned Magistrate erroneously took into account his earlier driving conviction in 1977, recited erroneous considerations of what constituted good character; and enquired whether the appellant had fully informed the character referees of his previous criminal records.  The matters which could properly be taken into account have already been stated in these reasons, and the whole of the appellant's prior character and history, especially in regard to the offences of which he had been convicted, were material.  Similarly, the extent to which he had disclosed his conviction for assault causing bodily harm, and the circumstances under which the offence had been committed, to the character referees affected the weight to be given to those references.  In the event the learned Magistrate attributed very little weight to the 1977 conviction having regard to the length of time which had since passed but, nevertheless, it was a material consideration as it was a conviction for dangerous driving causing death.  I am unable to accept that any of the matters referred to as being improperly taken into account by the learned Magistrate constituted any error on his part.

2. Overall the learned Magistrate at Kalgoorlie was dealing with a case in which the appellant had been convicted of a serious assault against a passenger who had engaged him for hire in the performance of his occupation.  The conviction and the circumstances of the assault revealed that on one recent occasion the appellant had acted in a manner which was positively dangerous to members of the public and that an individual passenger had been significantly injured by him.  The appellant had had an opportunity to discuss the incident with the interviewing police officers employed by the respondent when asked to show cause why his taxi driver's licence should not be cancelled but, in the process, the appellant continually maintained that he had been justified in acting as he did that night.

3. At the review hearing the same approach was maintained and the appellant continued to attempt to make out that he had been wrongly convicted when it was not open to him to challenge the conviction in those proceedings.  His ignorance of this aspect of the law and legal proceedings can, perhaps, be conceded.  That does not alter the fact that the appellant continued to show a lack of responsibility and character in accepting the consequences of what he had been found to have done and in failing to make adjustments to his life and to his approach to the responsibilities of being a taxi driver.  Had he done so this might have shown that he had absorbed the lesson that conduct of this kind was completely unacceptable in that occupation.  The character evidence which he offered in support of the review did not address these shortcomings and, furthermore, the referees were not fully apprised of the conduct which the court had found had been engaged in by the appellant and which led to his conviction.

4. With the exception of the admission of hearsay evidence which, I am satisfied has not caused any miscarriage of justice, none of the grounds of appeal has been made out.

5. For these reasons I consider that this appeal must be dismissed