Should the applicant's driver authority and accreditation be cancelled?
21Firstly, I need to decide if I am reasonably satisfied that Mr M was the driver of the taxi at the time of the speeding offence. If so, then the statutory declaration to that effect is accurate.
22The applicant's evidence was that after Mr M arrived he spent 10 minutes trying to fix the taxi and then took it for a drive for another 10 minutes. This account is not borne out by the GPS records, which did not show that the taxi was not stationary for any 10 minute period in the Ashfield area shortly before the time of the speeding offence. In addition, the applicant's account was that Mr M drove the taxi away, returning after about 10 minutes, but the GPS co-ordinates for the taxi on that date do not indicate that it was in the Ashfield area for that period of time. The records do not indicate that the vehicle was driven from a location in the Ashfield area and returned to that location as described by Mr Babikir.
23For these reasons, I do not accept that Mr M was the driver of the taxi at the time of the speeding offence, as the applicant claimed. In coming to this view I also note that the applicant knew his driver's licence was in jeopardy because of the accumulation of points and he had previously had his licence suspended for this reason. Further, notwithstanding that the applicant claimed the taxi was malfunctioning and off the road for at least 20 minutes and required the intervention of a mechanic, he took no steps to bring that problem to the attention of the operator.
24My view may have been different had I had the benefit of hearing from Mr M. Mr M was not called to give evidence, neither did he provide any form of statement. There was no evidence as to what enquiries had been made to locate him, nor when the applicant had last been in contact with him. In Howell v Macquarie University [2008] NSWCA 26 the Court of Appeal specifically noted that the principle of Jones v Dunkel [1959] HCA 8 applies to the Tribunal. It referred to its decision in Manly Council v Byrne [2004] NSWCA 123 at [51] about the inferences that can be drawn from the failure to call a relevant witness:
Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
25Whether either or both of the inferences are actually drawn is part of the task of weighing the evidence. In this matter, the absence of evidence from Mr M is relevant in respect of the speeding offence. More importantly, it weighs heavily against the applicant in respect of the statutory declarations.
26Having come to my view that Mr M was not the driver of the taxi at the time of the speeding offence, I must also find that the applicant provided a false statutory declaration to the OSR.
27In Miah v Roads and Maritime Services [2013] NSWADT 264 the Tribunal observed that in this State, making a false declaration for a material benefit is a serious offence and that under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. The Tribunal referred to R v Einfeld [2009] NSWSC 119 where a former Federal Court judge was sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. In this case also the offence related directly to driving and the applicant's driving record.
28Even if I were wrong and Mr M was in fact driving the taxi at the time of the speeding offence, I reject the applicant's explanation about having erroneously claimed Mr M to have been the driver at the time of the red light offence in the second statutory declaration. I accept that the statutory declarations refer only to the penalty notice number and do not, on their face, refer to the details of the offence to which they relate. However, the applicant conceded that when he received each statutory declaration form it was accompanied by the relevant penalty notice which contained the details of the offence. The applicant gave evidence of having studied at TAFE and he gave articulate evidence. I reject his counsel's suggestion that he may have been confused by the forms as he was not familiar with Australian paperwork. In my view, it was clear that it should have been clear to the applicant that there were 2 separate offences. In those circumstances, I find that, the applicant's statutory declaration in relation to the red light offence was false.
29Recently, in Naveed v Roads and Maritime Services [2014] NSWCATOD 4, the Tribunal was of the view that Mr Naveed's actions in swearing three false statutory declarations nominating a driver other than himself should be taken seriously for the following reasons:
- His actions reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper;
- The offences in question relate directly to his driving and driving record, which is of importance given that a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. Sobey v Commercial and Private Agents Board [1979] 22 SASR 70
- As a result of Mr Naveed's actions in blaming other people for three of his traffic offences, a false and misleading picture has been given of his driving record.
30I agree with the submission of the Respondent, who referred to my recent decision in Saifi v Roads and Maritime Services [2014] NSWCATOD 24, in that the fact that Mr Babikir falsely nominated another person as the driver of the taxi at the time of the offence by providing at least one statutory declaration to the OSR, casts doubts as to whether he is a fit and proper person to drive a taxi-cab. Honesty is central to any consideration of whether someone is a fit and proper person and there is a community expectation that taxi drivers will not only provide safe, reliable and clean public passenger services but the community also expects honesty from taxi drivers.
31In Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [17] the Tribunal's Deputy President set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority:
17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
a) the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
b) the nature, seriousness and frequency of any complaints made against the applicant;
c) the applicant's driving record;
d) the applicant's reputation in the community; and
e) the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
32The applicant gave evidence, which I accept, to the effect that he is a hard-working family man. I was informed that the applicant has held a taxi driver authority since 2006. Since obtaining his driver authority he has been the subject of numerous traffic offences, and has received many demerit points and his driver's licence was suspended.
33I have taken into account the references provided by the applicant to the respondent. All were identical in content. While the referees wrote of the applicant being a person of good character the referees did not refer to the matter presently before the Tribunal. There was no evidence that the various referees were aware of the purpose for which they were expressing their opinion as to the applicant's character. Accordingly I attach little weight to those references: Loye v Director General, Department of Transport [2000] NSWADT 145.
34After weighing the relevant considerations, and in light of all the evidence, I am unable to attest to the applicant's suitability and fitness to hold a taxi driver's authority at the present time. As I have determined that, at this stage, Mr Babikir is not a fit and proper person to hold an authority, it is not necessary to consider the other attributes for authority.