Victorian Civil and Administrative Tribunal|2008-10-31

XFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 (31 October 2008)

Occupational and Business Regulation List; Applicant for accreditation as driver of commercial vehicle acquitted of a homicide in 1990 on ground insanity; Applicant suitable for accreditation; Transport Act 1983 Sections 164 and 169

XFJ v Director of Public Transport (Occupational and Business Regulation)

Respondent's determination made 11 June 2008 is set aside and there is substituted therefor a determination that pursuant to Section 166 of the Transport Act 1983 that the applicant be granted a driver's accreditation to drive a commercial passenger vehicle for a term of not more than 18 months from the date of issue.

Section 164 of the Transport Act 1983 renders it an offence for a person to drive, inter alia, a commercial passenger vehicle, unless that person holds a driver accreditation. It is unnecessary to go to the definition of commercial passenger vehicle, suffice to say that, in broad terms, the concept includes both taxicabs and hire cars. The applicant in this proceeding, XFJ, is aged 52 years. He desires to obtain an accreditation under the Transport Act 1983 to enable him to drive a commercial passenger vehicle, specifically to become a taxicab driver in Victoria.
By a determination made on 11 June this year, the respondent, Director of Public Transport, the relevant licensing and accrediting authority, determined to refuse XFJ's application for the accreditation. XFJ came to Australia in 1989 as a refugee from the upheavals in Ethiopia. He left Ethiopia, travelling through Sudan to Egypt. He says he suffered many hardships in the course of his flight from Ethiopia, including imprisonment and torture in Egypt. In 1990, XFJ, who is now aged 52 years, was in the grip of a serious depressive episode. He was contemplating suicide. Apparently he carried a piece of rope around with him. In the event however, the violent action which he took first was not directed against himself, but against his estranged wife. He killed her with repeated knife blows.
Thereafter, he attempted to commit suicide himself by hanging, but the attempt failed when the limb on the tree which he sought to hang himself from broke. In 1992, being charged with his wife's murder, he was acquitted by a jury on the ground of insanity. Under the law which then governed these matters, namely Section 420 of the Crimes Act 1958, XFJ was detained at the Governor's pleasure in a psychiatric institution for what, in the language of the day, were described as the criminally insane. In 1997 the Crimes Act was amended so as to modernise and modify the rules for dealing with those found not guilty of criminal offences on the ground of insanity, and also those found unfit to plead because of insanity.
In pursuance of this revised regime, XFJ came before the Supreme Court in 1998, at which time he was following years of treatment and rehabilitation, released into the community, subject to a supervisory regime. Some five years later, his case was before the Supreme Court again, and on that occasion he was discharged from all further supervisory requirements. He was at that point a free man. According to a Dr Carroll, who is a consultant psychiatrist with Forensic Care, the State Government agency involved in the treatment, care and supervision of persons in XFJs situation, a period between release into the community under supervision and complete discharge of five years was a very short one indeed. Dr Carroll, who understandably is well informed on these matters, said that he was aware of only two other instances where a complete release was effected in a shorter time. These two cases were women who, according to Dr Carroll, customarily received somewhat different treatment from male patients.
XFJ has worked in a number of occupations since his release back into the community. He worked for some months, for instance, as a kitchen hand at the Sofitel Hotel. At other times, he worked first as a volunteer, and then on a paid basis in a charity in Fitzroy, dedicated to the support of the homeless.
Later he worked as a carer of the aged. In that occupation, he tells me, he had to deal not only with the frail and aged, but also aged persons who are suffering from dementia, who could be quite confrontational and were difficult to deal with. XFJ's youngest son, who is now aged 19 months, has been diagnosed with leukaemia. XFJ has been acting as this son's carer. The hope is that after a period of three years, if the child survives, he will have a relatively good prognosis for a healthy life. Accordingly therefore, his life is now in the balance. XFJ sought employment in the taxi industry, as I understood it, because it would be a convenient and flexible occupation, having regard to his duties as carer, and also because the circumstances surrounding the death of his wife were known amongst the community of Ethiopian refugees in Melbourne, and those people had made known the circumstances, or at least their version of the circumstances to those with whom XFJ has worked.
He left the Sofitel Hotel, for instance, because he was being abused as a killer. When he initially made his application, the Director regarded him in the circumstances as being in the same situation as someone found guilty of a Level 1 offence, with the Director obliged to deny his accreditation. Further clarification indicated that XFJ had been found guilty of no offence, and the deeming provisions which, under the Transport Act 1983, would deem a person under the 1997 legislation, acquitted on the ground of mental impairment to be guilty would not apply to the insanity acquittal which XFJ secured in 1992.
It was in the those circumstances that the Director came to reconsider and re-exercise his decision-making power in June of this year. The Director accepted at that point that he had a discretion to exercise, but concluded nevertheless that the accreditation sought by XFJ should be denied. The criteria which guided the Director, and which must of course likewise guide this Tribunal, which is being asked to review the Director's determination, are to be found in section 169 of the Transport Act 1983. That provision states in subsection 1, inter alia, that:

(1) The Director may grant an application for driver accreditation if he is satisfied:

(a) that the issuing of accreditation is appropriate having regard to the public care objective; and

(i) is technically competent and sufficiently fit and healthy to be able to provide the service; and

(ii) is suitable in other respects to provide the service; and

In this Tribunal, XFJ seeks a review of the Director's refusal of the accreditation. The Director, represented by Ms McKenzie of counsel, seeks to uphold the determination which he previously made on the footing that, first, accreditation of XFJ would not be appropriate having regard to the public care objective. And secondly, that XFJ was, in terms of Section 169(1)(b)(ii), not suitable in other respects to provide the service as a taxicab driver. To understand the purport of the Director's determination, and the issues before me, it is necessary to turn to Section 164 of the Act, which describes what is referred to in Section 169(i) paragraph (a), as the "public care objective" as follows. Subsection (1):

(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles, and vehicles used for the operation of private bus services, be provided:

to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

The Director's contention is that, in the circumstances which I have described, the public care objective would not be served by accrediting XFJ. The Director's counsel, Ms McKenzie, draws attention to dictionary meanings of the word "comfort", which include a reference to ease of mind. She says that passengers or potential passengers would not have ease of mind if they were being driven by a person in the situation and with the history of XFJ. Further of course, she raises the issue of safety, by reference to a risk of some recurrence of the major depressive disorder and the violent events of 1990. XFJ himself gave evidence in support of his application, and provided testimonials from a number of persons acquainted with him over the years.
More pertinently, we had the evidence of two consultant psychiatrists, one a Dr Carroll, to whose evidence that I made reference earlier in these reasons, who was the treating practitioner for XFJ in the years 2000 to 2004, as a practitioner at Forensic Care. And also Dr Barry Kenny, a consultant psychiatrist to whom the Director referred XFJ for examination and assessment. Dr Carroll gave an opinion as follows, inter alia:

Currently he is free of any mental health symptoms, notwithstanding the major stressors which he has undergone over the past year or two. From a psychiatric perspective, his prognosis remains excellent. He has been in remission now for many years, without the need for any medication. He has demonstrated an ability to cope appropriately with major life stressors.

And Dr Kenny noted that for a period of 14 years XFJ has been symptom free. He continued:

Considering the whole picture, he is probably no more likely to have another episode of depression than does anybody else in the community. He also has insight into the nature of his condition by now and can see that he was depressed leading up to this incident. And so his insight into the nature of his condition and of the warning signs thereof. So I would agree with Dr Carroll that he is most unlikely to have a further episode, and I would also add that he understands the implication of the condition now and would be in a position to act accordingly before he got seriously depressed. So I reiterate that in general I would see him as being no more likely, or little more likely, to have a further episode of depression than with anybody else in the community who had not been depressed before. I see him as an intelligent and insightful man without personality disturbance, disorder or dysfunction, without any continuing psychiatric problem, with a minimal possibility of recurrence of depression and a good understanding of the nature of depression anyway.

One might think that these psychiatric opinions are about as favourable as in the circumstances one would expect. And it would not be an exaggeration to refer to them as emphatically favourable to the applicant. Ms McKenzie, in cross-examination, obtained a concession from Dr Carroll that XFJ does, in light of his history, have a lifetime of vulnerability to depression. In that regard, it would seem Dr Carroll was being somewhat more conservative in his ultimate opinion than Dr Kenny was in the passage which I have quoted from. Since Dr Kenny was called, albeit unenthusiastically, as a witness for the respondent, it was not of course competent for Ms McKenzie to cross-examine him.
Ms McKenzie drew attention to the concession made by Dr Carroll and also to the fact that, whilst under questioning from his own counsel, Mr Stanton, XFJ was asked a number of questions which would have been calculated, one expects, to have elicited the answer that if he, XFJ, felt circumstances developing of which might lead him into an episode of depression, he would seek medical advice. As it was, however, XFJ rather responded that he would be able to identify symptoms and could take appropriate action to relax himself, including time off from work and the like. Ms McKenzie submitted that in the circumstances this indicated a degree of reluctance on his part to seek further medical attention in the event that there was the threat of the onset of a further depressive episode. I should note finally that, following the non-leading questions from Mr Stanton, I asked a question of XFJ directly, whether he would, in the circumstances described, be willing to seek medical advice. He assured me that he would be.
I have heard lengthy submissions on these appropriate meaning of the various provisions to which I have already made reference. I do not, for the purposes of this determination, regard it as essential for me to proceed to all of those submissions, or to describe them in any detail. I should note that Mr Stanton, on behalf of XFJ, impressed me with a number of arguments arising under the Charter of Human Rights and Responsibilities Act 2006.
It has not been denied that, having regard to the timing relative to the present proceeding, that the Charter applies. Again, without rehearsing the arguments which were put by Mr Stanton, and the counterarguments put by Ms McKenzie, it is sufficient, so far as the Charter is concerned, for me to note that Section 32(1) of the Charter Act provides:

(1) So far as it is possible to do so, consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to human rights may be considered in interpreting a statutory provision.

In my view, the approach which I am about to take, relative to the Transport Act 1983, is in accordance with those provisions, and no issue arises of any inconsistency between the Transport Act and the Charter of Human Rights and Responsibilities Act 2006. Hence, even although issues relative to the Charter have been raised and argued before me, it is, as far as I can see, unnecessary for me to consider giving notice to, or inviting argument from, either the Attorney General or the Human Rights Commission. I return then to the submissions made relevant to Section 169, turning first to the issue of the public care objective, and clearly, the events of 1990 raise a very significant safety issue with regard to passengers in a taxicab which might be driven by XFJ.
The safety issue really turns upon whether there is an appreciable risk, or a risk special to XFJ putting him in a category different from other members of the community, that some violent outburst, such as occurred in 1990, would recur and would be directed against the passengers. I note that an apprehension of a violent attack upon a passenger in a taxicab is a significantly different scenario from the one which occurred in 1990. There, the victim of the attack was a very close personal family member, namely an estranged wife. This is a significantly different event from violence directed indiscriminately to strangers, or relative strangers, which passengers in the taxicab would be.
Secondly, the emphatic psychiatric opinion, which I quoted earlier in these reasons, leaves me to conclude that there is no serious safety issue. Needless to say, neither of the psychiatrists could offer any cast iron assurances as to what XFJ might do in the future, any more than they could offer any cast iron assurances as to what I might do, or what either of the learned members of counsel who appeared in this proceeding before me might do. The strongest concession was the reference to a lifelong vulnerability to depression. I note, however, that XFJ has been living in the community for some 10 years, and upon all indications, has kept good psychiatric health through that period without the support of medication.
I put the issue of safety to one side. The next question is the question of public apprehension or discomfort. Since, as XFJs account indicated, his co-workers in other occupations have become aware of the events of 1990, there must be a significant risk that these matters would become known, either to the public generally or amongst the community of cab drivers. The question will be asked rhetorically, would you want to ride with a man who stabbed his wife to death in 1990, never mind the circumstances? Would you want one of your children to ride in those circumstances?
It seems to me doubtful that the word "comfort", when used in Section 164(1) is intended to be directed to the concept of ease of mind, as distinct from ease of body, relative to proper upholstery, proper ventilation in taxicabs, proper cooling and heating and so forth. I concede, however, that it is arguable that ease of mind is included in the concept of the word "comfort". In my view, Parliament must, in establishing such a criterion, and if it has established it, be treated as being concerned with the ease of mind of reasonable persons, as distinct from simply wild prejudice. It would not be proper, for instance, to deny accreditation to a gay taxi driver, because some people in the community, perhaps a large number, feel uncomfortable with the concept of homosexuality, or with homosexuals.
Nor would it be appropriate to deny accreditation to an AIDS sufferer who was in remission with antiretroviral medication because some members of the community would feel uncomfortable, and not at ease in their minds, with such a person in the same car as themselves. In broad terms, I accept that the ordinary man in the street would probably say, "I would prefer not to have as a taxi driver somebody who has killed in whatever circumstances, except perhaps in self defence or as a solider." On the other hand, the decision that I have to make, and I believe the decision the Director had to make, must be based upon more than mere prejudice, and here the psychiatric evidence, and the apparently blameless life that XFJ has lived since 1990 is the more important and should, for a reasonable person, outweigh any unease of mind which his history would raise for them.
Accordingly, in my view there is nothing in the public care objective which would indicate that XFJ is not a suitable person for accreditation. He is, in a technical sense, qualified, and there is no reason to believe that he would be other than a safe driver. Again, it was not suggested on behalf of the Director that in terms of section 169(1)(d)(i) that there was some concern as to whether XFJ was fit and healthy enough to perform duties as an accredited taxicab driver. So I put that to one side. This then brings me to the final criterion that needs to be considered, and that is whether he is suitable in other respects to provide the service.
It is notable that the statutory criterion here is not the familiar requirement that the applicant for licensing, accreditation or whatever, should be a fit and proper person. Ms McKenzie, on behalf of the Director, submitted however that the same general approach which courts and tribunals have taken to the concept of whether a person is fit and proper or not should be applied to the somewhat different words that we find in Section 169(1)(b)(ii). She took me first to the well-known decision of the High Court of Australia in Hughes and Vale Pty Ltd v State of New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127,156-157, where in a joint judgment, Dixon CJ and McTiernan and Webb JJ, analysing these words, concluded that they were words of very wide import indeed, and could not be encapsulated in some easy formula.
They were words of protean import that would take a different meaning in different circumstances. Similarly, in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321,380 in a joint judgment, Toohey and Gaudron JJ, said that the concept of "fit and proper" brought in a large number of considerations. According to their Honours:

However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive, but it does indicate that, in certain context, character, because it provides indication of likely future conduct or reputation, because it provides indication of public perception as to the likely future conduct, may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

Ms McKenzie then took me to a passage in the judgment of McHugh J in Melbourne v R 198 CLR 1, at paragraphs 33, where his Honour distinguished between character and disposition. And at paragraph 52, where his Honour repudiated the suggestion that a person had a good character merely because he did not have a criminal conviction. It can be seen that these arguments raised the same issues fundamentally as were urged by Ms McKenzie with regard to the public care objective, namely the objective risk that the applicant, XFJ, would engage in further serious violence, and the subjective possibility that members of the community would be apprehensive, were he to be their taxi driver. In the case, In re Davis [1947] HCA 53; (1947) 75 CLR 409, dealing with an application for admission by a barrister, Sir John Latham CJ said at page 416:

A man may be guilty of grave wrongdoing and may subsequently become a man of good character.

If that is correct, I cannot see why a man who has engaged in serious violence, albeit in circumstances where he bears no legal responsibility for those matters, may not establish himself as a suitable person, almost 20 years later, to be a taxicab driver. In my view, in the circumstances before me, XFJ has established that he is suitable in the relevant respects. I note for instance that he has had experience in working with the elderly and those suffering dementia. His evidence on this score was not challenged in cross-examination. Both consultant psychiatrists conceded that work as a taxi driver may be quite stressful, because it is necessary for drivers to deal with intoxicated passengers, and passengers who, in good faith, or in bad faith, want to argue about fares, allege that they have been taken on unduly circuitous journeys, rather than by the most direct route to their objective and so forth.
Both these practitioners, however, expressed confidence that XFJ would not, by reason of being exposed to those stressors, revert to a serious depressive episode with a danger for a further violent outburst. In a way, this is the central issue in the proceeding. We have come at it from a variety of angles. The psychiatric evidence before me, as I have said, is clearly cogent and emphatic (opinion evidence, certainly, but what else can one rely upon in circumstances like this?) and is strongly supportive of XFJ's application. And on that basis, and for the other reasons which I have enunciated, I believe XFJ's application should succeed and the respondent Director's determination should be set aside.

XFJ v Director of Public Transport

At a glance

Court

Decision date

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Judgment (26 paragraphs)

XFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 (31 October 2008)

Parties

Cases Cited (3)