Cai v Roads and Maritime Services

Cai v Roads and Maritime Services - [2014] NSWCATOD 34 - NSWCATOD 2014 case summary — Zoe

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Applicant's evidence 19Mr Cai agreed that he was responsible for the 3 relevant driving infringements. Mr Chen had contacted him when Mr Chen had received the first infringement notice as Mr Cai had been driving at the time of the infringement. Mr Cai said that Mr Chen had said to him "Do you want to transfer it to your wife's name?" At first Mr Cai said 'no' as he thought he only had three demerit points against his licence. He said Mr Chen then said to him "as a new driver you're bound to collect many tickets as you go on." Later he had heard that other drivers supported the view and they told him that there was no problem as "many people do it this way". He then agreed that Mr Chen should say that Ms Ge Guo was driving at the time of this infringement. Mr Cai then provided his wife's licence details to Mr Chen on 26 May 2013. 20Ms Ge Guo then travelled overseas in June 2013 and Mr Cai travelled shortly after, leaving Australia on 24 June 2013 - returning on 25 July 2013. Mr Cai said that while he was away Mr Chen received two other tickets relating to Mr Cai's driving shift and without Mr Cai's knowledge Mr Chen wrote 2 more statutory declarations nominating Ms Ge Guo as the driver. 21Mr Cai said that when his wife returned from overseas, being a nervous person, she quickly paid the three infringement notices in her name. When he found out that all 3 of the driving offences had been transferred to his wife's name - rather than just the first one, Mr Cai said he was concerned - but did not know what to do about it. 22Mr Chen then advised him that he had been approached by the RMS to discuss the matter. Mr Cai then received a telephone request to attend at the RMS the following day at Parramatta. He did so. He hadn't understood that the interview would be serious. He said his spoken English is not that good and there was no interpreter present. He said he told the RMS the truth. He wasn't able to explain to them in detail what had happened because he didn't have the language for this. 23He agreed that the three fines had been incurred by him. He had been a law-abiding citizen and had worked hard. He knew he had made a mistake. He now realised how serious shifting the demerit points to his wife and the swearing of a false statutory declaration is. He rejected the allegation that he had conspired with the operator Mr Chen in relation to the three tickets. 24Under cross examination Mr Cai conceded that although initially he had thought he had only three demerit points against his licence at the time of the three offences, that he in fact had 6 demerit points. Accordingly had he accepted the responsibility for the three infringements he understood he would have lost a further five points which would accumulate 11 demerit points and he would have one point left. He said it had been Mr Chen's idea and he had not told his wife that this was happening. He said that he had been overseas when his wife had received the three infringement notices transferred to her name. He had told her that there might be some fines turning up. He hadn't told his wife when he had got the first infringement because she usually gets angry about these things because their finances were tight. He agreed as set out in his record of interview at RMS on 17 September 2013 that he had done it to save his points. He maintained that he was only aware of the points being shifted on one occasion prior to it occurring.

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Respondent's Submissions 29The Respondent referred the Tribunal to the tests of fitness and propriety set out in Bond's case. Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. 30The Respondent noted that the Mr Cai had committed the 3 driving offences and that Mr Wei could not have sworn the 3 false statutory declarations without the information provided by Mr Cai of his wife's licence details. The motivation for Mr Cai had been to avoid the further 5 demerit points which would bring his record to 11 points. There was no advantage for Mr Chen in it. The avoidance of the demerit points struck at the heart of the demerit point scheme which was to enhance driving safety on the roads. The evidence pointed to Mr Cai being complicit in the shifting of all three offences to Ms Guo- not just the first. It was not credible that Mr Cai had not been aware that the second and third offences had also been shifted to Ms Guo's name. It was not credible that Mr Cai had not told his wife ahead of her receipt of all 3 that she should pay for all 3 infringements. The matter was of a similar gravity to the line of cases involving drivers who defrauded cabcharge. 31The Respondent noted that In NSW making a false declaration for a material benefit is a serious offence. Under s 25A of the Oaths Act 1900, conviction on indictment can lead to imprisonment for up to seven years. 32In this context this matter was of the same nature as the matters of Miah, Naveed and Parvez which had been before the Tribunal and had resulted in the authorities of the drivers remaining cancelled. In those matters the drivers had sworn false statutory declarations attributing their infringements to other drivers. Miah v Roads and Maritime Services [2013] NSWADT 264; Naveed v Roads and Maritime Services [2014] NSWCATOD 4 and Parvez v. Roads and Maritime Services [2014] NSWCATOD 13. 33The Respondent submitted that it was illustrative of the seriousness of the matter that a former Federal Court judge was recently sentenced to three years' imprisonment for offences arising out of an attempt to avoid traffic points following a speeding charge. He was also disbarred, lost his Queen's Counsel commission, his Order of Australia and his National Trust listing as a "Living National Treasure" (R v Einfeld [2009] NSWSC 119). 34In relation to the references as to Mr Cai's repute, the Respondent referred to Loye's case, Loye -v- Director General, Department of Transport [2000] NSWADT 145 at 42 and 44. In this matter the Tribunal gave less weight to references which did not contain the referee's knowledge of the offences where the references were relied upon to show the Applicant was of good repute. 35In relation to the financial hardship that the cancellation would cause Mr Cai and his family, the Respondent referred to the findings in Lal's case. This case found that financial hardship was not a relevant consideration when determining whether the correct and preferable decision had been made. Lal -v- Director-General, Department of Transport [2001] NSWADT 74 at 47

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Findings of Fact 36There were a number of matters in the evidence which were contentious. The Tribunal's view is that it must be satisfied as required by section 140 of the Evidence Act 1995 on the balance of probabilities, the civil standard of proof. Accordingly, the Tribunal makes the following findings of fact. 37Mr Cai was responsible for all three of the traffic infringements. He agreed with the operator, Mr Chen, that the first of the infringements should be attributed to Mr Cai's wife, Ms Ge Guo. Mr Cai provided his wife's details to Mr Chen on 26 May 2013 for this purpose. With this information Mr Chen signed the statutory declarations. 38The Tribunal notes that it was not shown the relevant statutory declarations. The Tribunal does not know the dates on which the statutory declarations were sworn. 39Mr Chen's RMS interview transcript refers to one statutory declaration being shown to him at the interview, but date of this statutory declaration is not referred to in the interview transcript. 40At question 309 of the transcript of Mr Chen's interview on 5 September 2013 (page 069 of the section 58 documents) the RMS officer says to Mr Chen: Q 309 "You've done it one two other occasions, for him, and then all of a sudden you've done it again." A "'Cause I, I didn't help myself anything. I just helping him. I, I didn't, I didn't got any benefit on myself, you know?" 41It is not clear from Mr Chen's response whether he agreed with this proposition. Further it does not assist the Tribunal to understand the sequence in which any statutory declarations were signed. 42In his oral evidence to the Tribunal Mr Chen appeared to agree with the proposition put to him by the Respondent that the first 2 statutory declarations were signed by him on 14 June 2013. This would have occurred prior to Mr Cai travelling to China on or around 24 June 2013. 43The Tribunal cannot be sure about the details of any third statutory declaration. 44The Tribunal was shown three penalty notices directed to Ms Guo. One issued on 28 June 2013 related to the 30 March 2013 offence; another dated 27 June 2013 relates to the 23 April 2013 offence and the third issued on 17 July 2013 relates to the 11 May 2013 offence. The only certain conclusion that the Tribunal is able to draw from this is that at least one statutory declaration was provided on or before 27 June 2013. 45On the basis of the evidence before the Tribunal, the Tribunal is not satisfied that Mr Cai asked Mr Chen to provide the second and third statutory declarations. Mr Cai says he did not authorise a second and third statutory declaration and Mr Chen was not certain - although he thought it was 'likely' that Mr Cai had told him to shift the second infringement to Ms Guo's name. 46It is not clear to the Tribunal when Mr Cai became aware that a second or third statutory declaration had been provided to the State Debt Recovery Office by Mr Chen. The Tribunal is satisfied however that Mr Cai did not take action to remedy the deception once he became aware that a second and third infringement had been attributed to Ms Guo. 47Mr Cai told the Tribunal he was hesitant when Mr Chen first suggested that responsibility for the first infringement should be shifted to Ms Guo. The Tribunal is satisfied that at all times Mr Cai was aware that falsely attributing a traffic infringement to another person was dishonest. 48The Tribunal notes that Mr Cai has not been convicted of an offence in relation to this matter. Nor did he swear a false statutory declaration himself. 49The Tribunal finds that Mr Cai was honest in his interview with the RMS within the limits of his capacity to express himself in English.

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Findings on the Law and Evidence 50The issue in this case is whether the decision to cancel Mr Cai's authority to drive taxi-cabs was the correct and preferable one, having regard to whether Mr Cai is a fit and proper person, whether he is of good repute and whether he has sufficient responsibility and aptitude to drive a taxi-cab. The Tribunal has recently considered the issues involving the swearing of false statutory declarations by taxi-cab drivers in order to escape culpability for driving offences and to avoid the imposition of demerit points. This Tribunal refers to the approaches of the Tribunal in the matters of Naveed v Roads and Maritime Services [2014] NSWCATOD 4, Miah v Roads and Maritime Services [2013] NSWADT 264 and Parvez v Roads and Maritime Services [2014] NSWCATOD 13. 51By distinction, in each of these matters the statutory declarations had been sworn by the driver himself. This led to the finding that the drivers were not fit and proper to be holders of an authority. 52In the matter of Hughes & Vale the High Court commented that there are 3 components to fitness and propriety - "honesty, knowledge and ability." Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9. 53In Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Walters J said of the term "fit and proper": "In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... 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 ... as a person to be entrusted with the sort of work which the licence entails." 54The term "fit and proper person" was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [63]. The Chief Justice said that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. 55This Tribunal's synthesis of these requirements in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant. 56In the matter of Saadieh, Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal built on the principles set out in Bond's case and set out the following factors to be considered by the decision maker in determining a person's suitability and fitness to hold a taxi-cab authority:

the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
the nature, seriousness and frequency of any complaints made against the applicant;
the applicant's driving record;
the applicant's reputation in the community; and
the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 57In assessing the last factor, the following considerations are relevant:
the length of time since the offences were committed and the circumstances in which they were committed;
whether the applicant admits responsibility for the offences or complaints and shows genuine remorse;
the efforts the applicant has made to rehabilitate himself or herself during that time;
any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 58In his evidence before the Tribunal, Mr Cai has admitted to agreeing to have a traffic infringement shifted to his wife's name and has provided his wife's details to the operator for this purpose. As a result the operator has been able to swear three false statutory declarations nominating a driver other than Mr Cai in relation to three traffic offences. Mr Cai told the Tribunal that he was wrong to do this and that he is remorseful for his actions. 59Mr Cai has not been charged with or convicted of any offences. 60The Tribunal is of the view however that Mr Cai's actions should be taken seriously as they reflect badly on his honesty, which is a fundamental consideration when determining whether a person is fit and proper. The dishonesty relates directly to Mr Cai's role as a taxi-cab driver and his relationship with the regulatory authority. 61Further, the 3 infringements relate directly to his driving and driving record. This is significant 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 62The attribution of the 3 infringements to Ms Guo create a false picture of Mr Cai's driving record. Mr Cai's driver authority had been reissued in August 2011. He had offences of 'exceed speed limit by not more than 10 KM/H'; 'disobey traffic lane arrows' and 'make unlawful u turn' each worth 2 demerit points - by 1st June 2013. Had he accepted responsibility for the further 3 infringements his record would have shown 2 further 'exceed speed limit by not more than 10 KM/H' and a 'proceed through a red light'. He would within 2 years of recommencing taxi driving have been on 11 demerit points. 63Mr Cai stopped driving for Mr Chen in December 2013 - when Mr Chen lost his operator's accreditation. He has continued to drive for another operator with a stay in place and has not accumulated further points. His driving record in the 2 years, taking into account the matters attributed to Ms Guo has been fair only. 64The Tribunal notes that there are no customer complaints against Mr Cai in his role as a taxi-cab driver. 65The Tribunal gives little weight to the references provided in determining Mr Cai's good repute in the community and his fitness and propriety - as they do not refer to the matters before the Tribunal and the Tribunal cannot be sure that the referees were fully aware of the matters. In a general sense the Tribunal accepts that Mr Cai is well thought of for his qualities by the 2 referees. 66The Tribunal also accepts that Mr Cai has suffered anxiety as a result of his actions and by the thought that, if he loses his taxi driver's authority, he will be unable to support his wife and child. Questions of possible hardship to Mr Cai or to his family cannot be taken into account, however, in determining whether RMS has made the correct and preferable decision. Lal v Director-General, Department of Transport [2001] NSWADT 74 67Mr Cai's conduct occurred relatively recently in May 2013. The Tribunal is satisfied that Mr Cai now understands the seriousness of his conduct and would be unlikely to reoffend in this way in the future. 68The Tribunal has considered the issue of whether there is a distinction to be made between the dishonesty involved in swearing a false statutory declaration oneself and facilitating someone else to do so as occurred in this matter. Whether the statutory declarations were sworn by Mr Chen or Mr Cai the outcome would have been the same - that is that Mr Cai would not have had the demerit points recorded against his driving record. 69The Tribunal has also considered whether the impact on Mr Cai's relationship of integrity with the regulator would have been greater had he signed the statutory declaration himself. Mr Cai knowingly facilitated the making of at least one false statutory declaration. Both Mr Cai's action and that of Mr Chen were dishonest and designed to deceive the regulator. 70Further the Tribunal considered whether there was a real difference as to whether Mr Cai had known that more than one statutory declaration would be provided. The Tribunal is satisfied Mr Cai knew one false statutory declaration would be provided to his benefit - but not 3. The Tribunal is not satisfied that Mr Cai engaged knowingly in an extended course of calculated dishonesty in relation to all 3 statutory declarations. 71However, Mr Cai may be considered to have been reckless as whether more than one infringement may have been shifted from himself to Ms Guo when he provided Ms Guo's details to Mr Chen. 72The Tribunal finds that in these circumstances, Mr Cai's action of providing Ms Guo's details in the knowledge they would be used to deceive the Regulator and that it was wrong to do so, is sufficient to detract from Mr Cai's relationship of honesty with the Regulator. 73The Tribunal is satisfied that Mr Cai now understands the gravity of his actions in facilitating the swearing of false statutory declarations to his benefit. 74Given, however, the seriousness of his action in knowingly facilitating the swearing of a false declaration in order to evade responsibility for one traffic infringement, the Tribunal cannot be satisfied that Mr Cai is, at this stage, a fit and proper person to hold a taxi driver's authority as he has not demonstrated the honesty and integrity necessary in this regard. 75The Tribunal is accordingly satisfied that Mr Cai's action in facilitating Mr Chen's falsely swearing the three statutory declarations is sufficiently serious to warrant the cancellation of his authority. 76As the Tribunal has determined that, at this stage, Mr Cai is not a fit and proper person to hold an authority, it is not necessary to consider whether Mr Cai is of good repute or whether he has sufficient responsibility and aptitude to drive a taxicab, in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom.

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