TOPIC and DEPARTMENT OF TRANSPORT
[2014] WASAT 129
•30 SEPTEMBER 2014
TOPIC and DEPARTMENT OF TRANSPORT [2014] WASAT 129
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2014] WASAT 129 | |
| ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008 | |||
| Case No: | CC:1061/2013 | 11 JUNE 2014 | |
| Coram: | MR M SPILLANE (SENIOR MEMBER) | 30/09/14 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Decision of the respondent affirmed Applicant's T extension cancelled Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BOZO TOPIC DEPARTMENT OF TRANSPORT |
Catchwords: | Road Traffic (Authorisation to Drive) Regulations 2008 (WA) Review of decision to cancel an extension T endorsement to driver's licence Good character |
Legislation: | Evidence Act 1996 (WA) Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 7, reg 11, reg 11(1), reg 12, reg 12(7)(c), reg 28(3), reg 28(4), reg 25, reg 25(d), reg 41, Pt 2, Div 3 State Administrative Tribunal Act 2004 (WA), s 27, s 29(1), s 29(5), s 32 Taxi Act 1994 (WA), s 23(1) |
Case References: | Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 522 Mohamed and Department of Transport [2011] WASAT 76 Mohamed and Director General Department of Transport [2010] WASC 375 |
Orders | On the application heard on 11 June 2014 by Senior Member Maurice Spillane, it is on 30 September 2014 ordered that: ,1. The respondent's decision to cancel the applicant's T extension is affirmed and the applicant's T extension is cancelled.,2. The application for review is dismissed. |
Summary | Mr Topic, the applicant, held a T extension to his motor vehicle driver's licence which entitled him to carry passengers for reward in a taxi. In February 2013 he was convicted of serious offences in the Perth District Court and sentenced to a term of imprisonment of two years. He was released from prison in May 2013 and is on parole until February 2015.,Following Mr Topic's conviction and sentencing the Director General of the Department of Transport cancelled his T extension on the basis that he was not of good character as required by the Road Traffic (Authorisation to Drive) Regulations 2008 (WA).,The applicant applied to the Tribunal for a review of that decision, and having assessed the evidence following a hearing, the Tribunal was not persuaded for the reasons given that the applicant was of good character such as that required to hold a T extension, and the decision of the Director General was affirmed, the applicant's T extension cancelled and the application for review dismissed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : ROAD TRAFFIC (AUTHORISATION TO DRIVE) REGULATIONS 2008 CITATION : TOPIC and DEPARTMENT OF TRANSPORT [2014] WASAT 129 MEMBER : MR M SPILLANE (SENIOR MEMBER) HEARD : 11 JUNE 2014 DELIVERED : 30 SEPTEMBER 2014 FILE NO/S : CC 1061 of 2013 BETWEEN : BOZO TOPIC
- Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Road Traffic (Authorisation to Drive) Regulations 2008 (WA) Review of decision to cancel an extension T endorsement to driver's licence Good character
Legislation:
Evidence Act 1996 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 7, reg 11, reg 11(1), reg 12, reg 12(7)(c), reg 28(3), reg 28(4), reg 25, reg 25(d), reg 41, Pt 2, Div 3
State Administrative Tribunal Act 2004 (WA), s 27, s 29(1), s 29(5), s 32
Taxi Act 1994 (WA), s 23(1)
Result:
Decision of the respondent affirmed
Applicant's T extension cancelled
Application dismissed
Summary of Tribunal's decision:
Mr Topic, the applicant, held a T extension to his motor vehicle driver's licence which entitled him to carry passengers for reward in a taxi. In February 2013 he was convicted of serious offences in the Perth District Court and sentenced to a term of imprisonment of two years. He was released from prison in May 2013 and is on parole until February 2015.
Following Mr Topic's conviction and sentencing the Director General of the Department of Transport cancelled his T extension on the basis that he was not of good character as required by the Road Traffic (Authorisation to Drive) Regulations 2008 (WA).
The applicant applied to the Tribunal for a review of that decision, and having assessed the evidence following a hearing, the Tribunal was not persuaded for the reasons given that the applicant was of good character such as that required to hold a T extension, and the decision of the Director General was affirmed, the applicant's T extension cancelled and the application for review dismissed.
Category: B
Representation:
Counsel:
Applicant : Mr V Dangubic
Respondent : Mr P Busby with Ms J Hervic
Solicitors:
Applicant : Frichot & Frichot
Respondent : Department of Transport
Case(s) referred to in decision(s):
Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 522
Mohamed and Department of Transport [2011] WASAT 76
Mohamed and Director General Department of Transport [2010] WASC 375
Background
1 Mr Bozo Topic (applicant) is 46 years old and has held a driver's licence in Western Australia since 1998. In 2005 he had that licence varied with the addition of a T extension. Such extension authorises the holder to drive a motor vehicle for the purpose of carrying passengers for reward as provided for by reg 11 and reg 12 of the Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (Regulations).
2 On 10 February 2012, the Department of Transport (respondent) became aware that the applicant had been charged by the police with serious criminal offences.
3 Based on the applicant's pending criminal charges at that time, the respondent determined that those charges, together with the underlying conduct, were of sufficient concern to provide the respondent with reason to believe that the applicant was not of good character as required by reg 12(7)(c) of the Regulations.
4 The respondent accordingly notified the applicant of the decision to suspend his T extension by letter dated 10 February 2012 which notice was served on the same day.
5 The applicant subsequently applied to this Tribunal on 5 May 2012 for a review of the respondent's decision to suspend his T extension on 5 April 2012.
6 That application (CC 2013 of 2012) was listed for a final hearing on 18 June 2012, but was withdrawn by the applicant prior to final hearing. It is understood that the applicant was a remand prisoner during much of that process.
7 On 28 February 2013 the applicant was convicted in the Perth District Court of aggravated burglary and commit offence in dwelling and was sentenced to a term of imprisonment of two years.
8 The applicant was also convicted and fined $750 for the offence of breach of a violence restraining order.
9 Following the applicant's conviction and sentencing, the respondent notified the applicant by letter dated 14 May 2013, that not being satisfied of the applicant's good character, the respondent cancelled the applicant's T extension pursuant to reg 28(4) of the Regulations. That cancellation was served on the applicant at Acacia Prison on 16 May 2013. It is noted that on 5 July 2013 while the applicant was serving his sentence, he was convicted in the Perth Magistrates Court of a further breach of a violence restraining order and fined a further sum of $750 in respect of matters that had arisen prior to him going to prison.
10 On 16 May 2013, the applicant was also served with a notice dated 14 May 2013 informing him that pursuant to s 23(1) of the Taxi Act 1994 (WA) (Taxi Act), that he was no longer considered fit to be the lessee of taxi plates.
11 The respondent subsequently received a request dated 5 June 2013 within the review period from the applicant's solicitor, Mr Henry Sklarz, for a review of the respondent's decision to cancel the applicant's taxi plate No 850.
12 The respondent inadvertently transposed the request and responded to the review on the basis that it was for the cancellation of the T extension rather than with regard to the cancellation of the taxi plate.
13 The respondent advised the applicant by letter dated 20 June 2013 that the decision to cancel the applicant's T extension had been affirmed on the basis that the applicant was not of good character having regard to the criminal convictions against him.
14 By application to this Tribunal on 8 August 2013 the applicant applied for review of the respondent's decision to cancel his T extension.
15 The applicant was released from prison in February 2014.
16 Following various programming orders, the matter was heard before the Tribunal on 11 June 2014 with both parties legally represented.
17 Although the issue was not raised by either party, but if for any reason this application for review was out of time and an extension of time was needed, such an extension is granted on the basis that the Tribunal is satisfied that there would be no prejudice to the respondent. The applicant always intended to apply for a review of the decision made and any delay in making the application could be explained by the applicant's circumstances at the time.
Evidence
18 Both parties filed a substantial number of documents, with the applicant filing a statement of issues, facts and contentions, a bundle of documents and a list of authorities, while the respondent also filed a statement of issues, facts and contentions, a bundle of documents and a list of authorities.
19 The applicant's bundle included, amongst other things, statements of evidence from several witnesses, five of whom were called and crossexamined. One person's statement was accepted into evidence without crossexamination, which was the statement of Mr Topic's son who is a minor.
20 There were also letters of support for the applicant from various parties, including parties for whom he carried out volunteer work.
21 All of the above evidence has been taken into account and considered by the Tribunal in arriving at its decision.
Legislative framework
22 In Mohamed and Department of Transport [2011] WASAT 76 (Mohamed) at [22] [35], the Tribunal set out the relevant legislative framework which this Tribunal adopts in this matter and it is repeated here for the purposes of clarity, context and explanation:
The regulation of who may drive taxi cars in Western Australia is through the regulation of driver's licences. The Taxi Act 1994 (WA)includes provisions relating to whether a person is fit be the owner or lessee of taxi plates, or the provider of a taxi dispatch service, but is not concerned with fitness to be a driver.
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: reg 7. A driver's licence does not authorise the holder to drive for the purpose of carrying passengers for reward, in a taxi or otherwise, unless it is endorsed under reg 12: reg 11(1). Under reg 12(1) and reg 12(2)(a), the Director General may endorse a driver's licence to include 'extension T'. The holder of a licence endorsed with extension T is authorised to drive for the purposes of carrying passengers for reward, including in a taxi.
Under reg 12(7):
(7) The Director General may make an extension T endorsement if the applicant pays the fee, if any, prescribed under the Road Traffic (Charges and Fees) Regulations 2006 for making the endorsement and the Director General is satisfied that the applicant
(a) has, for a period of at least 3 years or periods adding up to at least 3 years, held a relevant driving authorisation; and
(b) has reached 20 years of age; and
(c) is of good character; and
(d) is mentally and physically fit to drive a motor vehicle for the purposes of carrying passengers for reward; and
(e) has successfully completed a training course or test approved by the Director General.
The criteria for the grant of a driver's licence generally, are found in Pt 2, Div 3 of the regulations. Regulation 25 sets out grounds on which the Director General may refuse to grant a driver's licence:
The Director General may refuse to grant a driver's licence to a person if the Director General has reason to believe that the person
- (a) is not of good character; or
(b) suffers from a mental or physical condition (which may include a dependence on drugs or alcohol) that is likely to, or treatment for which is likely to, impair the person's ability to control a motor vehicle; or
(c) is disqualified under a foreign law, as defined in section 44D(2) of the Act, from being authorised to drive; or
(d) should not hold a driver's licence because of the number or nature of the person's convictions for
(i) offences under the Act or regulations made under it; or
(ii) for offences under laws referred to in paragraph (c) that are similar in substance to offences under the Act or regulations made under it.
The Director General may vary a licence. Before varying a 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 licence as varied, and that it would be appropriate to make the variation: reg 28(3). The Director General may also vary a licence by suspending or cancelling any authorisation that the licence gives: reg 28(4). It is common ground that this regulation applies to a variation to cancel or suspend an extension T. Regulation 28(4) provides:
Before varying a driver's licence in a way that would suspend or cancel any authorisation that the 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), (2) and (3) provide:
(1) 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; or
(b) suspend or cancel a person's driver's licence if -
(i) the Director General has reason to believe 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; or
(ii) the Director General is no longer satisfied of each of the matters referred to in regulation 24.
(3) If the person fails to satisfy the Director General within that period or within any further period that the Director General allows, the Director General may
(a) cancel the person's driver's licence; or
(b) impose or vary any condition on the licence; or
(c) suspend the licence until the Director General is satisfied as to the matter.
The practical effect of reg 28(4), read with reg 41, is that relevant to this case, the Director General:
a) may suspend a T extension if the Director General has reasons to suspect there are grounds on which the Director General could, if then considering whether to grant the T extension, refuse to grant it;
b) may suspend or cancel a T extension if the Director General has reason to believe that there are grounds on which the Director General could, if then considering to grant the T extension, refuse to grant it.
Finally, reg 42 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 of the Director General may apply to the Tribunal for a review of the decision.
The review before the Tribunal is a hearing de novo (s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act)) and is not confined to the matters and information that were before the decisionmaker 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 (s 27(2) of the SAT Act). Further, the reasons for decision provided by the decision-maker, or grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision (s 27(3) of the SAT Act).
The criteria and principles to be applied in determining whether or not to suspend or cancel an extension T endorsement
23 In Mohamed at [36] [40], the Tribunal also set out some of the relevant criteria and principles to be applied and, again this Tribunal adopts those comments and, for the purposes of clarity, context and explanation, sets out those that are relevant:
Applying the principles in reg 41(1) the Director General may suspend an extension T endorsement if, when considering whether to grant the extension, the Director General could refuse to grant it. The criteria to be applied in determining whether or not to grant an extension T, are as set out in reg 12(7) and the only relevant criterion in this matter, is a requirement that an applicant for an extension T endorsement be of good character.
On the other hand, if the Director General has reason to believe, rather than merely reason to suspect, there are grounds on which the Director General could refuse to grant a T extension, the Director General may either suspend or cancel that endorsement.
The suspension or cancellation is effected by way of a variation to the motor vehicle driver's licence, effective pursuant to reg 25.
The distinction between reasonable grounds for suspecting something, as opposed to the holding of a reasonable belief in relation to the matter, was addressed in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [No 2] [2008] WASC 166, at [16] and following (Gypsy Jokers). While the regulations do not refer to reasonable belief but rather to 'reason to believe', that, in my view, does not result in any difference in meaning. To have a reasonable belief must mean that there is reason to believe, as evident from the extract from that decision below.
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's 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.
18 As to the state of mind that is necessary for a 'reasonable belief', the court held (at 116):
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.
…
In these proceedings and in accordance with the regulations, Mr Mohamed's driver's licence may be varied (reg 28(3)) by suspending or cancelling the endorsement thereon of a T extension depending upon whether there is reason to suspect, or reason to believe that there are grounds on which the extension might be refused (reg 28(4) and reg 41) and the relevant ground on which such refusal may be justified is that Mr Mohamed is not of good character (reg 28). In determining whether or not Mr Mohamed is of good character it is necessary to bear in mind the distinction between what constitutes good character and the concept of what might constitute a person fit and proper to hold a licence[.]
24 As to the distinction between what may constitute good character as against whether a person is fit and proper to hold a licence, Allanson J in determining the appeal in Mohamed and Director General Department of Transport [2010] WASC 375 (Mohamed appeal) stated at [27] [28]:
Regulation 25 refers to 'good character', and not to whether the applicant is 'fit and proper' to hold a licence. There is a significant distinction between the two concepts. In Minitti v Commissioner of Police [2010] WASCA 198 [11], Pullin JA said:
The purpose of the expression ' fit and proper person' is to give the widest scope for judgment and for rejection of an application for a licence: Hughes and Vale Pty Ltd v New South Wales [No 2] [1955] HCA 28; (1955) 93 CLR 127, 156; Real Estate and Business Agents Supervisory Board v Carey [2010] WASCA 109. The discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework: Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996); Re Jones; Ex parte The Commissioner of Police [1999] WASCA 246. It is not a concept which is to be narrowly construed or confined: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 348.
While 'good character' is frequently referred to as an aspect of whether a person is 'fit and proper' (see, for example, Smith v Director-General of Transport [2004] WASCA 64; Tavelli v Johnson (Unreported, WASC, Library No 960693, 25 November 1996)) it is not the same thing. An expression such as 'good character' must always be construed in the context of the particular legislation in which it occurs. But it is not a flexible criterion giving the widest possible scope for judgment. It refers, in essence, to notions of moral quality (see the extensive discussion of good character in Minister for Immigration and Multicultural and Indigenous Affairs v Godley [2005] FCAFC 10; (2005) 141 FCR 552 [34]).
25 In the Minister for Immigration and Multicultural and Indigenous Affairs v Godley[2005] FCAFC 10; (2005) 141 FCR 522 (Godley), the three Judges of the Appeal Court referred at length to the judgment of the Judge at first instance describing it as a valuable guide for decisionmakers.
26 At [34] they reproduced part of the Judge's comments which stated:
A finding that a person is 'not of good character' requires the Minister to make a supervening determination after having regard to the matters set out in s 501(6)(c). The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. The Minister must look at the totality of the circumstances and determine whether the person before him is distinguishable form others as a person not of good character, a question not to be confused with characterisation by conduct alone. (See: Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187 at 197).
…
For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. Furthermore, there must be examination of past and present criminal conduct sufficient to establish that a person at the time of decision is not then of good character.
Consideration
27 Although the respondent raised some alleged complaints against the applicant in his role as a taxi driver, no evidence of those issues, on which the Tribunal could rely to make a finding, was produced.
28 Also, during his time as a taxi driver the applicant incurred a number of traffic infringements, details of which were:
1) unlawfully executing a U-turn at an intersection controlled by traffic lights (23 March 2008);
2) unlawfully exceeding the speed limit by a speed between 10 kilometres per hour and 19 kilometres per hour (31 July 2008);
3) unlawfully exceeding the speed limit by a speed between 10 kilometres per hour and 19 kilometres per hour (14 September 2009);
4) contravening a red traffic control light;
5) unlawfully exceeding the speed limit by a speed between 10 kilometres per hour and 19 kilometres per hour (13 June 2011);
6) unlawfully exceeding the speed limit by a speed between 0 kilometres per hour and 9 kilometres per hour (1 October 2011); and
7) unlawfully exceeding the speed limit by a speed between 0 kilometres per hour and 9 kilometres per hour (16 December 2011).
29 Although relevant, the infringements occurred over a number of years with five of the seven relating to speeding offences at the lower end of the scale and would not, in the Tribunal's view, on their own be enough to cancel the applicant's T extension.
30 It was clear that the principal issue on which the respondent relied to support its contention that the applicant was not of good character and therefore unsuitable to hold a T extension, was the applicant's conviction in the District Court in February 2013 on a charge of aggravated burglary and commit offence in dwelling for which the applicant received an imprisonment term of two years, together with the related convictions regarding breaches of violence restraining orders and a breach of protective bail conditions. It was common cause that all of the criminal convictions outlined, arose in the context of the breakdown of the applicant's marriage.
31 Dealing with those convictions, it is clear from the comments of the sentencing Judge in the District Court, a copy of which was before the Tribunal, that the Court regarded those offences as serious, and stated:
… The count on the indictment, to which you've pleaded guilty, is that on 9 February 2012 at Atwell, while in the place of Branka Topic without her consent, committed the offence of assault, and that you did bodily harm to Branka Topic, and that you detained [Branka] Topic, and that the place was ordinarily used for human habitation.
By section 6(1) of the Sentencing Act, a sentence imposed on an offender must be commensurate with the seriousness of the offence, which basically means that the level of the offence has to reflect the the level of the punishment has to reflect the seriousness of the offence.
…
It is a serious offence. The statutory penalty if an offence is committed in circumstances of aggravation, as this is, is imprisonment for 20 years. (T:135136; 28.02.2013)
32 Commenting on a psychologist's report that was before the Court the sentencing Judge stated:
You, plainly, as the psychologist notes, had difficulty dealing with the loss and the psychologist notes that you tended to externalise blame to the victim and had difficulties accepting responsibility for your behaviour. …
You appeared to lack insight into your own behaviours and showed minimal resource for your behaviour as you believe it was justified and you prevented [sic] significant cognitive distortions that contribute to your offending behaviour. (T:140; 28.02.13)
33 The Court later stated:
You portrayed yourself as a victim and suggested you shouldn't be in the trouble with police attending your own home to talk with your wife and children. You provided expansive explanation to support your belief that you were not in the wrong as suggested that your wife had 'put me in goal three times for no reason'.
You appear to lack insight into your own behaviours and showed minimum resource for your behaviour as you believe it was justified when you prevented [sic] significant cognitive distortions that contribute to your offending behaviour. (T:140; 28.02.2013)
34 In the present proceedings, five witnesses were called to give character evidence on behalf of Mr Topic, each of whom was crossexamined by the respondent.
35 The first witness, Ms Ravlich, stated that she had known the applicant for 15 years and that he was a 'good taxi driver and well thought of'. In paragraph 9 of her statement, Ms Ravlich stated:
I know that he and his wife separated in 2011 and that he was in prison for a year.
36 In crossexamination, Ms Ravlich was asked whether she knew why Mr Topic was in prison, and she explained that she did not. In answer to other questions, she confirmed that she knew he had trouble with his wife, but that was all she knew.
37 The second witness, Mr Djordje Bodegrajac, swore an affidavit dated 15 May 2014 in which he stated at paragraphs 2 and 3:
I have been the applicant's family friend and I have known his wife and children …
I know that he and his wife divorced and that Bozo spent a year in prison.
38 Mr Bodegrajac was also supportive of Mr Topic.
39 When it was put to Mr Bodegrajac in crossexamination whether he knew why Mr Topic had gone to prison, he also confirmed that he did not and stated:
Not exactly. I know they have some conflict some conflict between them two, but I don't know … .
40 The third witness, Mr Nebojsa Suvak, stated at paragraphs (1) and (2) of his statement:
1 The Applicant and his wife were friends to me for ten years.
2 I know the Applicant and his wife separated, and that the Applicant was in prison for unlawfully entering their family home.
41 It was put to Mr Suvak in crossexamination:
Do you know what happened inside the family home?
42 To which Mr Suvak replied:
Not really.
43 The fourth witness called on behalf of the applicant was Mr Purisha Djorich, also a taxi driver.
44 At paragraph 3 of his affidavit he stated:
The applicant is a family man, always kind, true friend, devoted to his family, although problems he and his wife have had in the past two years.
45 Mr Djorich was, like the other witnesses, asked in crossexamination whether he knew what had happened between Mr Topic and his wife, and he said:
No. They got some kind of problems like everyone else, and they divorced. This is all what I know[.]
46 The final witness was Mr Laxman Ghanta. Mr Ghanta also furnished a statement of evidence and, like the other witnesses, was asked in crossexamination:
… [A]re you aware of why Mr Topic had his taxi licence taken off him? Do you know why?
47 To which Mr Ghanta replied:
He mentioned about it to me as a family problem. … I know … he went to prison as well.
48 When asked as to whether he knew of the circumstances of the applicant's imprisonment, he responded:
Not really.
49 The applicant also gave evidence, and in respect of his 2013 conviction for which he received a prison term of two years, the applicant was crossexamined at some length.
50 He was questioned in particular in respect of the facts as set out in the transcript of the sentencing Judge as follows:
… Do you accept those facts as true and correct? I need to explain you something if possible.
I just need an answer to that question first, please? I no accept that but my lawyer is push me that I plead guilty because the sister of my lawyer is friend with my wife. …
Is it a conflict of interest in my case but I'm not possible to explain you anyone what anyone what's happened.
…
(T:72; 11.06.14)
51 It was confirmed by counsel for Mr Topic that although he was released from prison in February 2014 he is still on parole until February 2015.
52 In closing, counsel for the applicant referred to the crossexamination of the various witnesses regarding their knowledge of the circumstances of the applicant's crime, and stated:
There were few witnesses before the Tribunal, some of them knew all details of our client's relationship with wife and his convictions. Some didn't, [which] is understandable because it is something that someone doesn't want to disclose to everyone, is issues, problem with the family and reason for imprisonment. But some of the witnesses confirm that they knew of reasons for what imprisonment of course and they confirmed their statements about the applicant's character. (T:82; 11.06.14)
…
That conviction he was convicted of was unrelated to his licence and light weight should be given to that. Also in regards conviction or penalty imposed I would remind you that under Criminal Code stipulated penalty for this kind of offence is 20 years of imprisonment. If you look penalty imposed that is at the lower scale as well, that is just 10 per cent of the maximum and of course we would repeat again it was not connected with his driving or his taxi plates or licence. (T:83; 11.06.14]
- And later, counsel for the applicant stated:
… [W]e would submit at the end that our client doesn't present any danger to the public. He didn't do anything to any of his customers … (T85; 11.06.14)
54 The Judge, at first instance in Godley,with whom the three Judges of the Court of Appeal agreed, stated:
… The consideration of past and present criminal conduct and/or past and present general conduct provide indicia as to the presence or absence of good character but do not in themselves answer the question. …
For a finding to be made under s 501(6)(c) that a person is not of good character it is necessary that the nature of the conduct said to be criminal, be examined and assessed as to its degree of moral culpability or turpitude. …
55 In the present circumstances, the applicant was convicted of a serious criminal offence for which he spent time in prison and in respect of which he is still on parole.
56 In coming to its decision, the Tribunal has had the benefit of observing and hearing all of the witnesses including the applicant, and noted that although most of the witnesses knew the applicant had been in prison, none of them knew the specifics of what he had been in prison for.
57 When a person is requested to give character evidence on behalf of someone to establish that they are of 'good character', it is important that the person giving the character reference knows the person 'warts and all', and is able to give their support of that person in the knowledge of all relevant issues regarding the person, both positive and negative.
58 The need for this is that if there are details that are unknown to the person giving the reference which may reflect on the person's character, the question then remains whether that person would be of the same opinion if in possession of all the facts.
59 In a case such as the present one, when the conviction of the applicant for specific offences is central to the respondent's allegation that the applicant is not of good character, it is important that the witnesses giving evidence in support of the applicant's good character do so in the full knowledge and understanding of the circumstances.
60 If that is not the case, the Tribunal is left in the invidious position, as it is in this case, of wondering what opinion those witnesses might have of the applicant's character if they were fully informed of all of the details of the serious offence for which he was imprisoned.
61 In the Tribunal's view, it is both important and incumbent on an applicant putting forward character evidence, that all of the character witnesses are aware of all the relevant details, whatever they may be, and that they give their evidence with knowledge of the full circumstances involving the applicant.
62 In the present case, not a single character witness who gave evidence or any one of the written references put before the Tribunal, could address the facts surrounding the applicant's convictions, and in such circumstances, for the reasons set out above, the Tribunal is not willing to attach any real weight to those references.
63 Another relevant issue for the Tribunal in coming to its decision in this matter was that it was clear from the sentencing Judge's remarks that the applicant, at the time of sentencing in the District Court, lacked insight in respect of his behaviour.
64 Unfortunately, before this Tribunal, that was largely still the case, and the Tribunal found the applicant to be hesitant, evasive and largely still in denial.
65 He did not wish to accept responsibility without being pressed, and even then, wished to explain, as set out above, that 'his lawyer pushed him to plead guilty because the sister of his lawyer was a friend of his wife'.
66 The Tribunal is not satisfied that the applicant recognises the seriousness of the matters in respect of which he was convicted, and although recently released from prison and still on parole, he still appears to lack insight.
67 Although the applicant did at one point say he was sorry, the Tribunal is not convinced, based on everything before it, that he has any true contrition in respect of what happened.
68 The applicant was convicted of serious offences and given an imprisonment term of two years, yet he has come before this Tribunal attempting to show that the respondent was incorrect in determining he was not of good character to hold a T extension to his driver's licence in circumstances where he:
1) lacks insight and has still not accepted the seriousness of what he has done; and
2) called several witnesses to testify to his good character while omitting to inform them of the full details of the incident for which he was sentenced to a prison term, and in respect of which, had they been on notice, may have impacted on the positive view they had formed of the applicant.
69 In the Tribunal's view, both of those matters do not reflect well on the applicant's character.
Conclusion
70 As has been stated many times in this Tribunal in respect of holding a T extension, it is important that the public have confidence in the taxi drivers who provide the public with taxi services, and having carefully assessed the evidence the Tribunal is not persuaded that the applicant is of good character such as that required to hold a T extension.
71 For these reasons, the Tribunal will affirm the respondent's decision to cancel the applicant's T extension to his driver's licence, the applicant's T extension will be cancelled and the application for review will be dismissed.
Orders
- 1. The respondent's decision to cancel the applicant's T extension is affirmed and the applicant's T extension is cancelled.
2. The application for review is dismissed.
I certify that this and the preceding [71] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, SENIOR MEMBER
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