Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ejaz v Roads and Maritime Services [2016] NSWCATOD 136 Hearing dates: 20 October 2016 Date of orders: 03 November 2016 Decision date: 03 November 2016 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: PASSENGER TRANSPORT – Refusal of taxi-cab authority – whether of good repute – whether fit and proper person – criminal convictions – length of time since convictions - rehabilitation Legislation Cited: Passenger Transport Act 1990 Cases Cited: Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Loye v Director General, Department of Transport [2000] NSWADT 145 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Category: Principal judgment Parties: Sabir Ejaz (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: S Ejaz (Applicant in person) Smythe Wozniak Legal (Respondent) File Number(s): 1620011 REASONS FOR DECISION 1. On 24 November 2015 Roads and Maritime Services refused an application by Mr Sabir Ejaz for authorisation to drive taxi cabs. That decision was affirmed on 11 December 2015 after Mr Ejaz sought internal review. The reason for the refusal was because Roads and Maritime Services could not attest that Mr Ejaz is a fit and proper person to be the driver of a taxi cab. Background 1. Mr Ejaz was issued with a taxi driver authority on 18 September 1992. On 21 December 1993 he was charged by NSW Police with indecent assault as a result of a complaint made by a female passenger in a taxi driven by Mr Ejaz on 2 December 1993. The matter was heard at Hornsby Local Court on 14 February 1994 and Mr Ejaz was found guilty. He was ordered to enter into a self-recognizance in the sum of $1,000 and placed on a two-year good behaviour bond. 2. Mr Ejaz's taxi authority was cancelled on 18 February 1994. His appeal to the District Court against the conviction for indecent assault was dismissed on 15 December 1994. 3. Prior to the current application, Mr Ejaz had applied for a taxi authority on three occasions – in 2006, 2009 and 2013. He was refused on each occasion. In 2013 he sought review of the refusal by this Tribunal and the decision of Roads and Maritime Services was affirmed by the Tribunal on 10 April 2014. The current application 1. Mr Ejaz is aggrieved by what he believes is poor treatment of him by Roads and Maritime Services and wishes to seek damages for pain and suffering caused by this treatment. As explained to Mr Ejaz at the hearing, that is not a matter the Tribunal can deal with in this application. This application is confined to whether Mr Ejaz meets the requirements of the legislation to be issued with a taxi authority. 2. Section 33 of the Passenger Transport Act 1990 relevantly provides: 33 Authorities (1) RMS may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (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. (4) …. (5) …. 1. The issue in this case is whether the Tribunal can attest that Mr Ejaz 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. The applicant's case 1. Mr Ejaz states that he was placed on a good behaviour bond of two years some 23 years ago and has had no further convictions since that time. He believes that this is evidence of his good character and reputation. Mr Ejaz has also provided evidence that he had no criminal convictions in Pakistan before his arrival in Australia in about 1989. He states he has worked in the hospitality and security industries since his 1994 conviction dealing with a wide variety of people and there have been no problems with his behaviour. Mr Ejaz has worked as a security guard since about 2007 and holds the relevant licence. 2. In March 2008 the NSW Commission for Children and Young People ordered that Division 2 of the Commission for Children and Young People Act 1998 is not to apply to Mr Ejaz in respect of the conviction in February 1994 for indecent assault. At the hearing Mr Ejaz said that he has not worked with children and the certificate was obtained for the purposes of a previous application for a taxi driver authority. 3. In this and the previous applications for an authority Mr Ejaz provided certificates in relation to a number of courses he has attended and successfully completed since 1995 to May this year. The courses are relevant to his work in hospitality and security. Mr Ejaz states that since his conviction in 1994 he has had a good employment record. 4. Mr Ejaz also provided a number of references. He had previously provided references from employers and landlords covering the period 1994 to 2012. In support of this application he provided more recent references. 5. The receptionist at the Campbelltown Catholic Club states that Mr Ejaz has been a valued member of the Club since 2009. She reports that he has not been involved in any altercations, is kind and shows respect to other patrons and staff members. Mr Ejaz worked as a security officer at Coles until 2015. A reference from his supervisor states, among other things, that Mr Ejaz is of "excellent moral character and behaviour". He also received a certificate of appreciation from his employer, Wilson Security, for his work with Coles. Another reference from Woolworths Limited states that Mr Ejaz has worked as a security guard at the Masters Head Office for the past five months and that he has performed his duties well and with a cheerful manner. 6. Mr Ejaz also provided references from two neighbours who have known him since 2004 and 2005 respectively. Both state that he is respected and of high moral character. Mr Ejaz stated that the references from his employers and neighbours reflect his good character since the time of the conviction in 1994. 7. When questioned at the hearing it became apparent that none of the referees are aware of his previous convictions. Mr Ejaz said that they did not need to know about it. 8. Mr Ejaz also provided a report by a psychologist, Ms Daisy Sequeira, dated 8 October 2016 in which she stated that Mr Ejaz seems to be psychologically stable and his distress is related to his ongoing issues in obtaining a taxi driver authority. Mr Ejaz said he has seen Ms Sequeira about four times. The 1994 conviction 1. Mr Ejaz admits that he was convicted of indecent assault in 1994. The allegations made by the complainant in that case were that Mr Ejaz was the driver of a taxi she got into at about 2:30am on 2 December 1993. She claimed that, while she was looking for change to pay the taxi fare, Mr Ejaz climbed through the gap in the front seats into the back of the cab. He put his left arm around her and rubbed her right leg with his right hand. Mr Ejaz then grabbed hold of the complainant's right hand and moved it towards his crotch. The zipper of Mr Ejaz's pants was undone and his penis was exposed. 2. The police questioned Mr Ejaz on 21 December 1993 and he was subsequently charged with indecent assault. Mr Ejaz subsequently appeared in court and stated he was innocent of the charge but gave a different version of events to the court to that which he had given police. He claimed that he was treated unfairly by police and, because of his lack of English skills and the fact he had no interpreter, agreed to things he did not say or do. He was, however, found guilty and, as noted above, was unsuccessful on appeal. 3. Mr Ejaz has maintained since his conviction that he was innocent. He told a psychiatrist in October 1996 that he had been wrongly charged and convicted. In his applications for a taxi driver authority he has disclosed the conviction but has stated that he was wrongly convicted. He again stated before the Tribunal that the incident did not happen in the way alleged by police. The psychologist report by Ms Sequeira referred to above states that Mr Ejaz told Ms Sequeira he was wrongly accused. 4. Mr Ejaz has given different versions of what occurred on 2 December 1993 on a number of occasions: to the police when interviewed; to the court; and in statements made in support of his 2009 application for a taxi driver authority. 5. Furthermore, lawyers engaged for the purposes of his 2013 application for a taxi driver authority, as instructed by Mr Ejaz, gave another version of those events in a letter to Roads and Maritime Services in July 2013. Mr Ejaz has also given different accounts of whether or not he was represented in the court proceedings, at times implying that he was not able to present his case because of lack of legal representation or poor representation. 6. When cross-examined before the Tribunal, Mr Ejaz gave no cogent explanation for the differences and discrepancies in his accounts over time other than to state that he had been confused when the police questioned him and that the events did not happen as the police alleged. Earlier offence 1. On 11 February 1994, a few days before the indecent assault charge came before the Local Court, Mr Ejaz was convicted of fail to behave with civility towards a passenger on the basis of sexual innuendo. He was fined $150 and ordered to pay court costs. 2. The existence of this conviction, although it was referred to in the transcript of the hearing on 14 February 1994 before the Local Court on the indecent assault charge, went unnoticed in relation to Mr Ejaz's applications for a taxi driver authority in 2006, 2009 and 2013. It only came to light during the hearing before the Tribunal in relation to the 2013 application. Mr Ejaz did not refer to the conviction on any of his applications for a taxi driver authority. 3. When asked at the hearing of the current application why he had not disclosed or referred to this offence in previous applications, Mr Ejaz said he couldn't remember if he had mentioned it or not. He also stated that the incident was the result of a misunderstanding and that the sexual topic was a discussion on a radio talk back show rather than a conversation directly by him with a female passenger in the taxi. This account of the conviction is repeated in the psychologist report prepared by Ms Sequeira. 4. Mr Ejaz said he had no legal representation and did not know why the matter went as far as it did resulting in a conviction. He also stated that he only mentioned the main offence and letters from Roads and Maritime Services also only referred to that incident and not the earlier one. 5. Other than what appears in the transcript of the indecent assault court proceedings against Mr Ejaz and his own evidence, there is no further evidence of the nature of this offence before the Tribunal. The respondent informed the Tribunal there is no FACTS sheet in relation to the matter. The respondent's case 1. The respondent states that Mr Ejaz drove a taxi for a very short time before he came to notice for two offences of a sexual nature and that these offences occurred in a taxi cab. 2. The respondent acknowledges that in 2008 Mr Ejaz obtained a certificate from the then Commission for Children and Young People which permitted him to work with children and that he has held a security guard licence since about 2007. These were obtained despite the conviction for indecent assault. The respondent states that the former has been overtaken by more recent legislation and may no longer be relevant. In relation to the security guard licence which requires the holder to be a fit and proper person, the respondent states that while Mr Ejaz may be a fit and proper person to be a security guard, he is not a fit and proper person to be issued with a taxi driver authority. The respondent submits that whether a person is fit and proper to hold a particular licence depends on the purpose for which the licence is held. 3. The respondent referred to a number of cases which have dealt with issues similar to those before the Tribunal in this matter. The respondent submitted that the Tribunal could not attest that Mr Ejaz is of good repute and a fit and proper person to drive a taxi. It was stated that Mr Ejaz has two convictions both of which are directly related to his taxi driving. Mr Ejaz has not shown any remorse and has not accepted his convictions. Mr Ejaz seemed to have blocked the first conviction from his mind and has denied that the second more serious offence of indecent assault occurred. 4. The respondent submitted that there is very little evidence before the Tribunal of Mr Ejaz's good repute as those who have spoken favourably of him have done so without knowledge of his history. The respondent acknowledges the considerable amount of time that has elapsed since the last offence but states this is tempered by Mr Ejaz's denial of responsibility for his past actions. The respondent states that Mr Ejaz has simply not dealt with the issue and the Tribunal cannot be comfortable that he would not behave in the same way again. 5. The respondent notes the report provided by Ms Sequeira in which she refers to Mr Ejaz's anxiety and low mood but states that his history as given to her is based on his statements that he was wrongly accused. The respondent states that Mr Ejaz has not provided any psychological report which indicates that he would not act in the same way again if he were permitted to drive a taxi. Consideration 1. At issue is whether the Tribunal can "attest" that Mr Ejaz is of good repute and in all other respects a fit and proper person to be a taxi driver. In Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 the Appeal Panel stated at [12] that by using the word "attest" the Parliament has sought "to emphasis the idea that the conferral of an authority involves a declaration of public trust". 2. The Appeal Panel went on to say that the expression "good repute and in all other respects a fit and proper person" is meant "to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern". The Panel then discussed the concepts of "good repute" and "fit and proper" (at [13]): "repute" goes to the public estimation of the person while "fit and proper" goes to such matters of character "as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry". 3. In Re T and the Director of Youth and Community Services [1980] 1 NSDWLR 392 Wadell J stated when discussing the meaning of "good repute": A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession . . . Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation. 1. A criminal history is not, however, evidence of bad repute, but does create a presumption that the person has, among those who know of that history, a bad reputation. It puts the onus on the person to establish their good reputation: Loye v Director General, Department of Transport [2000] NSWADT 145 at [29]. 2. Mr Ejaz maintains that he was wrongly convicted and claims that the incidents did not occur in the way portrayed to the court in relation to the two convictions. As noted above, Mr Ejaz has given varying accounts of events in relation to the indecent assault charges over time. He was, however, convicted after a full hearing before the Local Court at which he was legally represented and his appeal was unsuccessful. He has not presented any additional cogent evidence to the Tribunal than that which was before the Court. Similarly he has not presented any additional evidence to the Tribunal in relation to the earlier conviction. I therefore accept the facts on which the convictions were based. 3. In Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal stated: [T]here 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: ­ 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. In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; 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 and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers. 1. Mr Ejaz has been convicted of two offences, both of a sexual nature and both involving female passengers while he was the driver of a taxi cab. The indecent assault conviction was described by the Magistrate when giving judgment as a "very, very serious offence". 2. Mr Ejaz does not accept that his behaviour has led him to being convicted on two occasions for sexually related offences. He is aggrieved by his treatment and now the focus of his grievance appears to be against Roads and Maritime Services as a result of their refusals of his applications to be permitted to once again drive a taxi. Indeed the emphasis in the report by Ms Sequeira is on this grievance rather than him coming to terms with his own actions or assessment of future risk. 3. Mr Ejaz has provided no evidence that he has accepted or come to terms with his behaviour and the fact of the convictions. Of concern is that the two offences occurred within a relatively short time of each other. Of most concern is that Mr Ejaz over a period of many years did not reveal the existence of the earlier conviction and, when it came to light, professed to have not remembered it and then questioned its validity. It is highly unlikely that a person would forget such a conviction, particularly as this conviction appears to be his first encounter with the court system. The fact that it too was of a sexual nature, although not involving any suggestion of physicality, is of great concern. 4. I am mindful that the offences occurred some 23 years ago and that Mr Ejaz has had no further convictions since that time. He has sought to improve himself through a range of courses and has been gainfully employed. I have no doubt that the references from his employers are genuine and he is a good employee. He has successfully obtained a security licence. I consider, however, that, while Mr Ejaz may be regarded as a fit and proper person to hold a security licence, different considerations may apply to a taxi driver authority. Similarly, I place little reliance on the certificate obtained in 2008 enabling him to work with children. 5. I place little weight on the references supplied by Mr Ejaz which go to his reputation and whether he is of good character. None of these persons was made aware by Mr Ejaz of his convictions because, in his view, they had no need to know. There is therefore very little evidence before the Tribunal of good repute. 6. The conduct engaged in by Mr Ejaz while he was a taxi driver and which occurred in the taxi he was driving is not conduct which can be found to be acceptable. The fact that he continues to deny the incidents took place and maintains he was wrongly convicted, combined with his failure to disclose the earlier conviction, reveals that Mr Ejaz has not come to terms with his past and has not taken any steps to rehabilitate himself. Despite the considerable time that has now elapsed since his convictions, these matters do not instil any confidence that he would behave appropriately in relation to all passengers. I therefore, on the basis of the evidence before me, cannot attest that Mr Ejaz 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. Orders 1. The decision under review is affirmed. ********** 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2016