Should the applicant's driver authority and accreditation be cancelled?
27While I accept that taxi driving late at night can be hazardous and customers may be rowdy and even violent, in summary, I do not accept the version of events provided by Mr Saifi to me and to the Compliance Officers. It may be that the applicant was involved in an altercation, in which he was assaulted. However there was no evidence that he took his complaint to the police, nor did he note it in the daily log book where such an incident might have been recorded. He was not so seriously injured that he needed to attend a hospital, nor actually attend a doctor. In that regard I note that this evidence differed from his initial assertion. He claimed to have been unable to raise help from the operator or his brothers or others and that he fortuitously saw Mr Khan who came to aid. One might have thought Mr Kahn could have provided an account of rescuing Mr Saifi and kindly driving him for some 5 hours to his home. Mr Khan was not called to give evidence, neither did he provide any form of statement. 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.
28Whether 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 Khan weighs heavily against the applicant.
29I found the evidence of Mr Carr compelling. He explained that the call records were completely inconsistent with the random 'button pressing' that the applicant claimed Mr Kahn had engaged in while attempting to turn off the meter. Mr Carr demonstrated that in fact the pattern was consistent with what had been occurring prior to the alleged assault and the offence.
30I also find it implausible that any driver could have taken some 5 hours to reach Guilford and that had, en route, driven the taxi around the city and Kings Cross, Campsie, Lidcombe, Parramatta and Kellyville.
31I therefore do not accept that Mr Khan was driving the taxi at the time of the offence and have come to the view that the applicant was driving at and continued to drive the taxi after the offence.
32In coming to that view I must also find that he provided to providing a false Statutory Declaration to the State Debt Recovery Office.
33In 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. As Huntsman JM noted in Ghachame v Roads and Maritime Services [2013] NSWADT 144 at [54], a person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake.
34Recently, 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.
35I agree with the submission of the Respondent that the fact that Mr Saifi falsely nominated another person as the driver of the taxi at the time of the offence by providing a Statutory Declaration to the State Debt Recovery Office, together with his failure to disclose traffic offences to the Respondent, casts doubts whether he is a fit and proper person to drive and operate 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.
36In Saadieh v Director General, Department of Transport [1999] NSW ADT 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:
i.the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
ii.the nature, seriousness and frequency of any complaints made against the applicant;
iii.the applicant's driving record;
iv.the applicant's reputation in the community; and
v.the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
37I was informed that Mr Saifi has held a taxi driver authority since April 2006
38and an operator accreditation since July 2013. Since obtaining his driver authority Mr Saifi has been the subject of 6 previous complaints, of which 3 complaints were found to be justified - for driving in an unsafe manner, moving the taxi while passenger entering/leaving and failing to carry out punctual hire. No details were available, but, they do not, on their face, amount to a poor history.
39I was informed that Mr Saifi's obtained a NSW driver's licence in July 2001. He has committed 7 traffic offences since that time, and has received two Demerit Points Warning/Courtesy letters, with the latest being issued on 2 March 2012. Mr Saifi's NSW driver's licence was suspended from 19 June 2007 until 19 September 2007 for demerit point offences. I accept that this was now some time ago.
40Up to the date of renewing his Driver Authority in February 2007, Mr Saifi had declared traffic offences that he had committed, however, since that time Mr Saifi has failed to notify the Respondent of 4 traffic offences within the specified time frame, with the latest offence being committed on 1 March 2012.
41After 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 and accreditation at the present time. As I have determined that, at this stage, Mr Saifi is not a fit and proper person to hold an authority and accreditation, it is not necessary to consider the other attributes for authority and accreditation.