Salhab v Roads and Maritime Services [2015] NSWCATAP 67

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Salhab v Roads and Maritime Services [2015] NSWCATAP 67 Hearing dates: 11 February 2015 Date of orders: 21 April 2015 Decision date: 21 April 2015 Jurisdiction: Appeal Panel Before: Acting Judge K P O'Connor, AM, Deputy President J Lucy, Senior Member Decision: Appeal dismissed Catchwords: PASSENGER TRANSPORT – Cancellation of driver authority – affirmed at first instance – appeal – procedural fairness - in-hearing room identification – unreliability and prejudice – caution to be exercised – held reference by the Tribunal to the in-hearing room identification without expressing caution not unfair in context of case – appeal dismissed. Cases Cited: Parker v Espinoza (1996) 85 A Crim R 336 Texts Cited: Sharrett v Gill (1993) 113 FLR 316 Category: Principal judgment Parties: B Salhab (Appellant) Roads and Maritime Services (Respondent) Representation: Counsel: J Kalantar (Appellant) Solicitors: A Wozniak (Respondent) File Number(s): AP 14/46516 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Citation: Salhab v Roads and Maritime Services [2014] NSWCATAD 107 Date of Decision: 23 July 2014 Before: S Montgomery, Senior Member File Number(s): 133124

REASONS FOR DECISION 1. In April 2013, the administrator, Roads and Maritime Services (RMS) cancelled the authority of a driver, Mr Bill Salhab, exercising the power conferred by s 33F of the Passenger Transport Act 1990. Section 33F provides: 33F Variation, suspension or cancellation of authority Having regard to the purpose of authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this Division. 1. Section 33(3) provides: (3) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 1. RMS took action on the basis that it was no longer satisfied that Mr Salhab could be considered a person of good repute and in all other respects a fit and proper person to be driver of a taxi-cab. 2. Mr Salhab applied to the Tribunal for review. The Tribunal affirmed RMS's decision. Mr Salhab now appeals against the decision (notice of appeal, 19 August 2014) pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). Mr Salhab had the benefit of a stay of the administrator's decision from 30 April 2013 until 23 July 2014, when the Tribunal gave its decision. The stay has not been continued. So he has now been unable to work as a cab driver for more than six months. 3. The appeal was first fixed for hearing on 27 November 2014. Mr Salhab's legal representative had given notice shortly before the hearing that he no longer held instructions. As Mr Salhab did not attend, the Appeal Panel contacted him by telephone. Mr Salhab has a non-English speaking background. One of the grounds of appeal in the notice of appeal, and in submissions prepared on his behalf (filed 28 October 2014) was that he had been denied procedural fairness at first instance by not having had an interpreter present when he gave evidence and was cross-examined. As the Appeal Panel did not have an interpreter present, and as he was trying to resolve his difficulty over legal representation, the Appeal Panel, with the agreement of the respondent, adjourned the hearing to a new date, 11 February 2015. 4. At hearing on 11 February 2015, Mr J Kalantar of counsel appeared for Mr Salhab; and RMS was represented by Mr A Wozniak. 5. An appeal may be made on a question of law, and the appeal may extend to 'other grounds' if the Appeal Panel grants leave: NCAT Act, s 80. Mr Salhab seeks an order quashing the Tribunal decision, and restoration of his authority; or, alternatively, leave for a new hearing. 6. Mr Kalantar advised that Mr Salhab would rely on the written submissions filed 28 October 2014 that had been prepared by Mr Kalantar. Those submissions addressed three grounds of appeal. Mr Kalantar advised that Mr Salhab no longer pressed ground 2 (procedural unfairness, because of inadequate representation at first instance – Mr Salhab had been represented by a non-lawyer advocate from a drivers' association) and ground 3 (procedural unfairness due to lack of interpreter). 7. The only ground pressed is ground 1 of the appeal (procedural unfairness because of use of in-court identification). It raises a question of law. 8. The decision to cancel Mr Salhab's licence for want of good repute and lack of fitness of character had as its primary basis an event said to have occurred at about 4.30pm on Monday 2 July 2012. 9. RMS, following investigation, was satisfied that the driver had manipulated the in-cab eftpos machine when processing a card payment from a passenger at the end of a fare. The driver produced from the machine a receipt in the metered amount and gave it to her. The evidence was that the driver also generated a charge to her bank account of more than four times that amount ($45 versus $199.80). She lodged a complaint after receiving her bank statement recording the higher charge. 10. The key issue in the proceedings was whether Mr Salhab was the driver. He has consistently denied that he was the driver of the taxi-cab (T880) on that occasion. 11. Mr Salhab regularly drove a cab operated by Mr El Azzi, and it was part of the Legion fleet. The evidence was that the cab only had two drivers. Mr Salhab conceded that he had been the driver of the cab on the morning of Monday 2 July. 12. The complainant passenger gave evidence at the review hearing of the Tribunal. The ground of appeal refers to the following paragraph in the Tribunal's reasons: 29. The complainant attended the hearing, gave evidence and was cross-examined. The complainant gave a statement to the Respondent on 7 August 2012 in which she outlined her complaint as set out above. During the interview she was shown a photo board consisting of twelve drivers. She positively identified the Applicant as the driver of the taxi relevant to the 2 July 2012 incident. She signed and dated the photograph of the Applicant. She also identified the Applicant at the hearing. 1. The objection refers specifically to the last sentence. The submissions refer to the following part of the examination in chief of the passenger ('C') by Mr Wozniak ('AW') for RMS (5 September 2014): AW: When did you first see that person? C: Come out of the elevator [we interpose, a reference to the elevator on the floor of the hearing room]. AW: Alright, and is that person sitting in this room? C: Yes AW: Alright, if you could identify that person. C: That person. AW: Identifies the applicant for the record. 1. The submissions for Mr Salhab acknowledged that the Evidence Act 1995 provision dealing with unreliable evidence in the form of identification evidence, s 165(1)(b) does not apply to proceedings in the review jurisdiction of the Tribunal (see generally NCAT Act s 38(2)). The submissions continue that the Tribunal nonetheless erred in considering the identification made in this manner, and referred to the following statement of Anderson J in Parker v Espinoza (1996) 85 A Crim R 336 (WA Supreme Court) at 340: Where there are points of weakness in the identification evidence in a non-jury trial, these cases hold that the tribunal is required to identify those weaknesses and expressly warn itself of the relevant dangers. Where the tribunal does not expressly do so, it commits an error of law. 1. This statement appears in a longer treatment of the issue. Anderson J commenced by referring to the well-known statement of Mason J (as he then was) in Alexander v R (1981) 145 CLR 395 at 425-427 as to the risks associated with identification evidence, uttered in the context of an appeal from a jury conviction. His Honour also referred to a summary of the relevant principles given by Miles CJ in Sharrett v Gill (1993) 113 FLR 316 at 320-321, in particular the final point made by Miles CJ there: 3. Because the circumstances inevitably suggest that an accused person present in court is the person in question, in-court identification evidence carries little or no weight. Nor does any identification made in circumstances which suggest to the witness that the person identified is the accused. 1. Anderson J held that the magistrate had committed an error of law in his judgment in not expressly referring to the need for caution in having regard to in-court identification, and in failing to acknowledge that it can be given little or no weight. Anderson J then went on (as provided for by the law governing criminal appeals from magistrates) to review the evidence as a whole. He examined the quality of the identification evidence as a whole. He was satisfied that the conviction should be upheld, despite the failure to record caution in relation to the in-court part of that evidence. 2. Our attention was not drawn to any cases involving administrative tribunals (such as this Tribunal) and any statements of a similar kind, where a tribunal may have relied on in-hearing room identification. 3. The submission for Mr Salhab is that the Tribunal should have explicitly stated in its reasons that it had disregarded or limited the weight given to this aspect of the evidence before it. It should have done so, on the basis that it could not in the circumstances be satisfied that the evidence is a genuine recollection of what occurred by the complainant or it is a pseudo-recollection based upon the out of court refreshment of memory (the latter is a reference to complainant's sighting of Mr Salhab near the elevator). 4. The submission continued that the Tribunal's failure to express caution, and instead 'endorsing' the in-hearing room identification at [29] resulted in the tribunal giving weight to an 'irrelevant consideration'. Mr Kalantar also said that the in-hearing room identification tainted the remainder of the evidence, making the Tribunal more ready to accept other identification evidence and unfairly prejudicing his client. 5. While the Tribunal is not bound by the rules of evidence, clearly it must be seen to follow fair procedure, and weigh evidence with appropriate caution. This is particularly true of cases where significant consequences may attach to the finding, here, loss of livelihood. 6. We accept, of course, that in-hearing room identification has little value. Typically the hearing room has none or few people in attendance other than the parties and their representatives. The risk of auto-suggestion is high. 7. We do not think a failure by a tribunal in its reasons for decision to include an express warning or caution to itself as to the limited value of in-hearing room identification should be regarded as an error of law. Nor are we of the view that the Tribunal's conclusions as to the identification of Mr Salhab, made on the basis of the evidence as a whole, were flawed as a result of the in-hearing room identification. 8. We accept, equally, that a finding that that was based on no other evidence than an in-hearing room identification would rarely if ever be sustainable. The best way of expressing the relevant principles, as we see it, is simply that tribunals are obliged to have some plausible evidence for a finding. It is an error of law to base a finding on no evidence, or on no logically probative evidence. Importantly, the tribunal must have logically probative evidence for a critical finding (as identification was here), and give reasons for its choice between inconsistent accounts. 9. We are not satisfied that an error of law has been demonstrated. 10. If we are wrong, we would not in any case be inclined to disturb the Tribunal's finding. 11. As is apparent from the reasons for decision there were a range of matters connecting Mr Salhab to the event in question. 12. There was the separate early identification by the complainant from the photoboard of 12 photographs, referred to in para [29] of the reasons set out above. 13. Further, there was the circumstantial or less direct evidence, as Mr Kalantar fairly described it. In the main body of its decision, the Tribunal summarises the evidence from witnesses. The Tribunal sat on four days. The Tribunal set out its conclusions at [76] ff. 14. The Tribunal accepted evidence in relation to the GPS tracking system now used to follow the path of taxis. The tracking information that day that connected the taxi T880 to a trip consistent with the complainant's evidence. A statement from the only alternative driver of the taxi, Mr Sukkarieh, was in evidence and accepted by the Tribunal. He stated that he only drove on Saturdays and Sundays, and never on a Monday, the day in question. As to who was the taxi driver that day, there was evidence connecting Mr Salhab to activities at places where the taxi was stationary for significant periods (the Canterbury Leagues Club during the morning around 10.23am, and again for an hour at 6.26pm. 15. The encashed dockets were in evidence. In keeping with an industry practice, they were honoured by Mr George Azzi early in the morning of 3 July 2012 at his Unigas/gas depot. The Tribunal accepted his evidence that Mr Salhab presented it. Mr Azzi wrote the words 'Dr Nabil' on them, a name under which Mr Salhab was known to Mr Azzi. Mr Nawaf who also works at the depot and is primarily responsible for handling these dockets, but had yet to arrive for work that morning, corroborated Mr Azzi's evidence as to the name. 16. In our view there was ample evidence, apart from the in-hearing room identification, to enable the Tribunal to reach the conclusion it did at [86]: 'In my view it is probable that the Applicant was the driver of taxi T880 during the 2 July journey.' 17. Further, we note that in its summation from para [76] onwards, the Tribunal places no reliance or weight on the in-hearing room identification. This suggests to us that it was given no weight by the Tribunal in its final deliberations on the point. Reasons must be read fairly, and as a whole. The reference in para [29] is, in our view, no more than descriptive of an event at hearing.