Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hawchar v Roads and Maritime Services [2015] NSWCATOD 123 Hearing dates: 6 August 2015 Decision date: 29 October 2015 Jurisdiction: Occupational Division Before: J Kelly Senior Member Decision: The decision under review is affirmed. Catchwords: AUTHORITY TO DRIVE TAXI CAB – good repute – fit and proper person – criminal record – mental health history Legislation Cited: Passenger Transport Act (1990) s 33(1) and 33(3) Crimes (Sentencing Procedure) Act 1999 s 9 Mental Health Criminal Procedure Act s 32(3)(a) Cases Cited: Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (23 December 2011) Category: Principal judgment Parties: Akl Hawchar (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: Akl Hawchar (Applicant in person) Smythe Wozniak Legal (Respondent) File Number(s): 1520088 Judgment Introduction 1. The applicant, Akl Hawchar, applied for an authority to drive a taxi-cab on 16 December 2014. His application was refused. 2. He sought an internal review of that decision. The internal review decision made on 31 March 2015 affirmed the decision to refuse to grant an authorisation to drive a public passenger vehicle under s 33B of the Passenger Transport Act 1990 (the Act). The applicant seeks the review of that decision. The issues in the case 1. The issues in this case were whether the applicant 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. For the reasons that follow, I affirm the decision under review. The law 1. Section 33(1) of the Act confers power on the respondent to "authorise persons to drive taxi-cabs subject to and in accordance with this Division" 2. Section 33(3) of the Act provides: "The purpose of an authority under this Division is to attest: 1. 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 2. that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: 1. in accordance with the conditions under which the taxi-cab service concerned is operated, and 2. in accordance with law and custom." The evidence 1. The applicant provided a two-and-a-half page statement and various supporting documents (Exhibit A1). He provided eight references in similar terms from various people (Exhibit A2). Each was addressed "To whom it may concern", stated how long the referee had known the applicant, that he was a trustworthy friend and had been found at all times to be an honest peace-loving, courteous, dependable and caring person. Each referee said that he would be happy to provide further information if required and provided a telephone contact. 2. The respondent relied on 507 pages of material it had filed in the Tribunal, two bundles of documents produced under summons by Parramatta Local Court (Exhibits R1 and R2) and NSW Police Force Court History Convictions for the applicant (Exhibit R3). 3. In his application to drive a taxi-cab the applicant signed and declared that he had read and understood all the questions and that his answers were true, correct and accurate in every detail. 4. In response to question 16(h) on the Medical Assessment Form Public Passenger Vehicle Driver dated 15 October 2014, if he had ever had or been told by a doctor that he had "psychiatric, psychological, nervous disorder or depression" the applicant placed a cross in both boxes "yes" and "no", put a tick next to the "yes" box and wrote next to the boxes: "False statement by Police want my license back and my plate back and all my losses since my license was cancelled". 5. In answer to question 24, the applicant said that he had not, in the last ten years, ever been before a court in NSW or elsewhere for any reason where he had been found guilty or convicted for an offence. 6. In his internal review application, the applicant stated: "The charges I've received shouldn't of been charged to my name because I was helping the police with information about the firearms on the property. Police put in false claims in the statements, they misunderstood me, the firearm was not on me, or in car, or on my property, all claims were falsified. When explaining to the police about the situation, police claimed that they would put exactly what was said, but put different information which I never provided. The charges that have been included in this decision are dismissed without me paying any fines or any conviction." Consideration and findings 1. In his statement, the applicant claimed that he needed legal aid to support his case and a Lebanese Arabic interpreter. Near the beginning of the hearing, I asked the applicant if he wanted an interpreter. He said that he had been in Australia for 38 years. As long as I explained things, he would not need an interpreter. The hearing proceeded. I did not observe the applicant to have any difficulty understanding or answering questions in English. He did not claim that he could not understand what he was being asked. He answered in English. 2. Following is a summary of the applicant's criminal history which is based on the evidence before the Tribunal and which it accepts. The offences are set out chronologically beginning with the most recent. The offences were discussed during the hearing. A summary of the applicant's evidence is set out after each offence. 3. On 15 October 2010, the applicant was convicted of the offence of 'Possess firearm under prohibited order – not prohibited firearm/pistol –T2' at Parramatta Local Court and placed on a s. 9 bond, that is a bond pursuant to s. 9 of the Crimes (Sentencing Procedure) Act 1999, for two years. His signature appears on the "Bond to comply with conditions" under the wording "I accept the bond". That offence was committed on 23 May 2009 in Granville. The applicant claimed that that charge was dismissed. 4. It is relevant to this case that the applicant's shooter's licence had been revoked in 1997. The revocation order was included in Exhibit R2. It is one of the matters about which the applicant continues to feel aggrieved. 5. On 12 May 2010 the applicant was convicted of the following offences at Parramatta Local Court and placed on a s. 9 bond for two years for each conviction: 1. Possess unregistered firearm-prohibited firearm -- T2; 2. Possess ammunition without holding licence/permit/authority; 3. Not keep firearm safely – prohibited firearm; 4. Use unauthorised prohibited firearm –T2. 1. Those offences were committed on a property in the Mudgee area on 8 November 2009. The applicant claimed that those charges were dismissed. 2. The applicant's signature again appears on the "Bond to comply with conditions" document under the words "I accept the bond". 3. On 26 May 2004 the applicant was convicted of the offence of 'Stalk/Intimidate with intent to cause fear physical/mental harm – T2', placed on a s 9 bond for two years and fined $300. He said that the charges had been dismissed. He did not hurt anyone. 4. On 8 June 2001 the applicant was convicted of two offences of assault occasioning actual bodily harm –T2, placed on a s9 bond for three years and fined $150. 5. In 1997, the applicant was charged with assault and four charges of offensive language in relation to officers of the NRMA and the police. The transcript of proceedings on 14 March 1997 shows that the Magistrate dismissed the charges and discharged the applicant into the care of his wife, pursuant to s 32(3)(a) of the Mental Health Criminal Procedure Act having heard evidence from the applicant's wife that she would ensure he attended medical appointments and take his medication. At the end of the hearing, the Magistrate explained that the applicant was being discharged into the care of his wife: "to see that you continue with this medical treatment and that you continue to take your medication, do you understand?" The applicant replied "Yes sir". 6. The Magistrate made those orders based on the report of a treating psychiatrist dated 13 March 1997 which stated that the applicant was diagnosed as paranoid and that "it is anticipated that this patient will do well if he continues to" abstain from heavy alcohol drinking, continues to attend a psychiatrist once a month initially and later once every two or three months and continues his compliance with his medications, "including the anti-psychotics". The history recorded that "he had delusions and hallucinations … He believed that the NRMA officers were following him around and reported to this practice that an NRMA vehicle parked in from of him…..he indicated that the NRMA officers are trying to send him crazy due to 'jealously'". The doctor referred to the court case, "the jist (sic) of which is that he has been paranoid and threatening to officers of the NRMA and police". 7. When the applicant was referred to 25 NRMA drivers claiming he had harassed them, he claimed that they had harassed him because he made claims against his policy. 8. When the applicant was referred to information about transport officers claiming he had harassed them, the applicant said that he never harassed anyone. He had a loud voice. He just wanted his taxi authority back. 9. He denied abusing police. When referred to page 178 of the respondent's documents, he said that he had never said that he did not swear. 10. In the course of his evidence, the applicant said that if you have a computer and paper you can write anything against him. You need more proof than that to say he is violent. In summary, he claimed that the police report in 1996 started everything that happened against him. He had paid $55,000 to extend the hours he could operate his vehicle. He has not been able to earn any money since he lost his authority to drive a taxi-cab. He rang the Department of Transport. He is going to sue them for 15 years of lost income. He believes he could have had three houses and three taxi plates like a friend of his who died. He also lost his shooter's licence. I find that those grievances continue to dominate his thinking. 11. When asked at the hearing if he had ever been told that he had a mental illness, the applicant said no. When asked if he remembered being charged with assaulting NRMA officers, the applicant said that they were false statements. 12. When reminded that the 1997 charges were dismissed because he had been diagnosed with a mental illness and he was discharged into the care of his wife who had given evidence that she would make him take his medications, the applicant said that was all wrong and he did not take medication. (See pages 237 to 243 of the respondent's documents.) 13. When the applicant was referred to a report from a general practitioner dated 18 April 1997 which stated that in his opinion, the applicant can work as a taxi driver during the day "if he takes his antipsychotic drug Stelazine 5 mg at night time", the applicant said he "never took it" (page 250 of the respondent's documents). 14. When referred to a psychiatrist's report dated 20 April 2010 provided in relation to the applicant's defence of the 8 November 2009 offences, the applicant said that he took it but never read it. The solicitor said to go to the doctor so he did not go to gaol. The doctor wrote that the applicant was reluctant to discuss his psychiatric history or that he had ever been told that he was paranoid but did say he had seen at least two psychiatrists. The applicant agreed that one had suggested he take medication "for worry" but he refused to take them. The doctor's diagnosis was chronic paranoid schizophrenia. 15. Mr Wozniak referred to paragraphs 9 and 10 of the 27 April 2000 decision of the Administrative Decision Appeals Tribunal of New South Wales, Hawchar v Director-General, Department of Transport [2000] NSWADT 50 which recorded the applicant's answers to the same questions. The applicant elaborated upon his criticism of one doctor he accused of being a sick man at that time. The applicant made a serious allegation about how that doctor treated female patients. 16. The applicant referred to the assessment completed by a doctor on 17 October 2014 which he submitted with his application. He said that he had been seeing the doctor for the last three years. The doctor assessed the applicant as meeting the relevant criteria for an unconditional authority. The doctor ticked the box "No" in response to question 35 "Is Neuropsychological Assessment required (e.g. in a case of head injury)?" This doctor was also the author of the 18 April 1997 report referred to above. 17. Given the applicant's mental health history including the 2010 psychiatric report, and his denial of that history and his criminal history, I give no weight to that medical report. 18. I accept that the applicant genuinely believes what he said at the hearing. However, his evidence is not consistent with the reality of his mental health or criminal histories. 19. I have taken into account the references the applicant provided. However, I give them little weight. None of the references reflects that the referee knows the purpose for which the reference would be used, or knows of the applicant's criminal history, referred to above. 20. The Appeal Panel of the Administrative Decisions Tribunal said in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (23 December 2011), the concepts of "good repute" and "fit and proper person" involve different considerations. "The former concept goes to the way in which a person is regarded by others in the community … while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not". 21. I accept Mr Wozniak's submission that in this case, the applicant's criminal history is cogent evidence of bad repute. The applicant does not accept that he has committed the offences. He is therefore incapable of rehabilitation by accepting what he has done and changing to show that he is now of good repute. In making those findings, I have given most weight to the recent 2009 offences. However, the length of his criminal history, the number of offences, and seriousness of his offences are also relevant to the finding that I have made. 22. It follows from my finding that the applicant genuinely believes what he said at the hearing, that I do not accept that this is a case where an applicant has intentionally given incorrect answers to the questions on the application form such that the answers demonstrate bad repute. 23. The decision-maker relies on the applicant giving correct answers to the questions asked in the application form. The applicant did give incorrect answers to the two questions. I find that his inability to correctly answer the questions is an intrinsic characteristic that means that he is not a fit and proper person to be a driver of a taxi-cab. 24. For the above reasons, I affirm the decision under review. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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