On 23 July, 1991, Mr Reg Patterson, Chief Executive of VicRoads, requested me, Fay Marles, to arbitrate in the above matter and on my recommendation the following framework and terms of reference were agreed to with Mr David O'Sullivan, Director, Registration and Licences.
TERMS OF REFERENCE OF THE ARBITRATOR IN THE MATTER OF WHETHER TO RE-ISSUE MR P. J. HOSER AKA R. T. HOSER WITH A DRIVER'S CERTIFICATE FOR THE PURPOSE OF OPERATING A TAXI IN THE STATE OF VICTORIA
Mr Hoser was granted a licence to drive a taxi in Victoria In the latter part of 1985 and this was subsequently cancelled on the basis of his disqualification to drive In New South Wales. Since then, Mr Hoser's driving licence has been restored in Victoria but a taxi driver's certificate has not been issued to him on the basis of his past record of convictions both in New South Wales and Victoria, and the decision that he is not a fit and proper person to drive a taxi.
The justification for this decision has been challenged by Mr Hoser on the basis of victimisation and unfair treatment which he says he has suffered at the hands of various officials who have dealt with him.
In determining whether Mr Hoser should be issued with a driver's certificate, the Arbitrator is being asked to judge his fitness to drive a taxi within Victoria. To protect the Arbitrator's independence it is essential that this decision should not rely on judgements already made, and she must therefore examine afresh much material that has already been investigated both by VicRoads and the Victorian Ombudsman.
For this purpose the Arbitrator will need to have access to all records of VicRoads and the Ombudsman that she may require, and to interview any officer of VicRoads that she considers may assist her. She may also request such other people to discuss the matter as she considers appropriate. Finally, the co-operation of the New South Wales police may need to be sought to provide information concerning Mr Hoser's convictions in that State.
TERMS OF REFERENCE
1. To establish the personal behaviour standards that generally apply in practice
when issuing taxi driver certificates.
2. To examine in detail Mr Hoser's actions In Victoria that have come under scrutiny in considering his re-application for a taxi drivers certificate.
3. To examine Mr Hoser's claims of victimisation including the possibility that his reaction to this alleged victimisation may have been reIevant to VicRoads' latest determination.
4. In the event of Mr Hoser's Victorian record being judged as coming within the general standard accepted for a fit and proper person to drive a taxi in Victoria (but for his convictions in New South Wales), to examine in more detail his New South Wales record and his claims of victimisation in that State.
5. Having regard to the statute of limitation and the extent to which past record should Influence the present decision, to establish whether his record would render him an unfit person to drive a taxi taking into account the extent to which his Victorian convictions appear to indicate a continuation of the pattern of conviction in New South Wales.
1. The matter to be arbitrated is whether or not to renew Mr Hoser's Victorian taxi driver's certificate.
2. The request for independent arbitration in this matter springs from the concern that Mr Hoser's police record, which prima facie suggests that he is not a fit and proper person to drive a taxi, may have been largely or partly the result of victimisation by a variety of law enforcement agents, and as such it may present a distorted impression of Mr Hoser's fitness to drive a taxi.
3. The Chief Executive of VicRoads is concerned that Mr Hoser would not have been granted a licence had his New South Wales record been known at the time he applied to drive a taxi in Victoria. Now, however, as Mr Hoser has driven a taxi in Victoria for approximately four years it is necessary to consider his record in New South Wales in relation to this.
4. In forming a decision in this matter it is necessary to measure Mr. Hoser's behaviour against the general standard adopted for the fitness to drive a taxi in Victoria, including the grounds on which individual licences to drive taxis in Victoria in the past have been revoked in Victoria.
1. Records of Mr Hoser's charges and convictions in New South Wales and Victoria were examined.
2. Transcripts, letters and other documentary evidence of Mr Hoser's relevant activities was also provided.
3. Supplementary information from police records both in New south Wales and Victoria was made available.
4. Background information relevant to Mr. Hoser's claim of victimisation was reviewed. This related largely to his activities as a herpetologist in New South Wales including his dealings with National Parks and Wildlife Service and his publication of a work on reptiles and frogs with a section on problems of conservation and corruption within New South Wales.
5. Mr Hoser was interviewed over approximately ten hours covering the events that were the subject of court action in Victoria, his contact with VicRoads officials and police and his court record in New South Wales.
6. Mr David O'Sullivan, Director, Registration and Licences, provided information concerning the general measures of fitness to drive a taxi including the grounds for revocation.
7. Several VicRoads officials were interviewed concerning their contacts with Mr Hoser.
1. Standards that generally apply in practice when issuing taxi driver certificates
In discussion with the Director of Registration and Licences it was established that:
(a) Mr Hoser's number of offences was greater than those of applicants who had been granted driving certificates in the past, that is, he had more offences than would normally be acceptable in a taxi driver. However it was conceded that many of these were comparatively minor and that if Mr Hoser had for any reason
attracted extra vigilance on the part of particular officials, he could have been charged in circumstances where other drivers might not.
(b) Further, in the two charges of assault which Mr Hoser has faced, the penalty in one which was not connected with his work as a taxi driver was reduced on appeal, and on the other an appeal was upheld following the failure of the key prosecution witness to appear.
(c) In respect to Mr Hoser's New South Wales record there seemed little doubt that if it had been known at the time of his original application, it would have been accepted on its face value and a licence would not have been granted to him.
(d) In regard to the revocation of taxi driver certificates in Victoria, it was established that this is not an uncommon occurrence and results generally from evidence of violence, sexual molestation, fraudulent practice and dangerous driving.
On the basis of these general standards it seemed clear that it would be necessary to establish that certain of the charges against Mr Hoser were unwarranted for him to be re-licensed. It was also obvious that Mr Hoser's New South Wales record would need to be examined in order to evaluate the significance of his Victorian convictions.
MR HOSER'S VICTORIAN RECORD
Largely because Mr Hoser taped all conversations that he thought could possibly have a bearing on his dealings with police and VicRoads officials, the Arbitrator was presented with voluminous records of incidents that have occurred in victoria. From these it was possible to obtain a clear impression of Mr Hoser's mode of interaction with passengers and officials and of the range of incidents in which he had been involved.
From these, together with his official record, the Arbitrator formed the view that the most significant factors in understanding Mr Hoser's situation, including his claims of victimisation, were his experiences in New South Wales, his involvement in multiple hiring in Victoria, his practice of recording all his interactions with authority both on tape and with photographs and the assault of a passenger in 1987 with which he was charged in 1988. Added to this was the important matter of Mr Hoser's record of safety as a taxi driver.
EVIDENCE OF MR HOSER'S DRIVING ABILITY AND THE SAFETY OF PASSENGERS WITHIN HIS CARE
While Mr Hoser has had a number of police charges against him since he has been in Victoria, none have involved traffic infringements and he has furthermore been described as an excellent driver by a taxi company prepared to employ him if his driver's certificate is renewed.
On the score of road safety there seems little reason therefore to deny Mr Hoser a driver's certificate.
THE CIRCUMSTANCES SURROUNDING MR HOSER'S NEW SOUTH WALES POLICE RECORD
Mr Hoser has provided a detailed account of the charges listed against him in New South Wales together with a description of a raid on his parents' property by officers of the National Parks and Wildlife service. By the age of 16, while still at school, Mr Hoser had become a licensed herpetologist and was breeding venomous snakes. At this stage in New South Wales he achieved prominent media coverage because of the theft of one of his venomous death adders.
His account of his police record in New South Wales is linked with alleged corrupt practices in the National Parks and Wildlife Service leading to his home being raided and his snakes confiscated.
Mr Hoser has also provided an account of his brother's and father's decision to return to the United Kingdom because of harassment by New South Wales authorities and of his own abandonment of his studies at Sydney University because of threats to the reptile supplies to the University if he were allowed to qualify. He alleged that by agreement with his lecturers, he left New South Wales with one subject of his degree to complete on the understanding that he would finish this when matters had quietened down.
He explained that on his arrival in Victoria he took out a driving licence in his brother's name with his brother's permission because he did not believe he could otherwise be left to lead a normal life after cross-referencing with New South Wales records.
Mr Hoser's account of his contacts with the police in New South Wales strongly suggests that what he experienced could have been, at least in part, the result of victimisation. Given this, together with Mr Hoser's youth at the time of these New South Wales charges and how long he has been in Victoria, the Arbitrator considers that little weight should be given to his New South Wales record for the purposes of this inquiry.
THE PRACTICE OF MULTIPLE HIRING
Mr Hoser appears to have first come to particular attention of VicRoads officials through his extensive participation in multiple hiring.
VicRoads regulations concerning multiple hiring require that individual hirers must pay 75% of the metered cost of journey when a taxi driver is carrying more than one separate fare. Through this regulation it is possible for a taxi driver to carry five separate fares and receive far in excess of the normal fare for a journey of a particular length. (For example, five separate fares to a destination metered at $10 would total $37.50.) Not surprisingly, this practice has led taxi drivers to complain of customers wishing to evade fares and customers in turn complaining of overcharging.
According to VicRoads officials it is a practice that has the effect of some drivers avoiding fares involving several people, for example, parents with children, and of drivers positioning themselves behind a queue of taxis in such a way that they become a lone taxi wanted by several passengers. According to Mr Hoser's own account, he was one of the earliest taxi drivers in Victoria to multiple hire extensively and it is significant that his only recorded problems with passengers had been associated with this practice.
Multiple hiring also made him very visible to the authorities as he usually worked at places where crowds were waiting, for example, Tullamarine Airport, nightclubs, race meetings, etc, and his entrepreneurial approach to obtaining multiple fares attracted some disapproval. Of most concern were his actions where he considered he had been cheated by fare evaders. On several occasions in these circumstances he made what he described as citizen arrests by chasing passengers and demanding to be paid. Except in the case of Ms P. O'Shannessy when he was charged with assault, these incidents did not involve physical contact with passengers.
As his justification for taking these actions Mr Hoser relied on the Cimes Act and the road transport regulations. However, his reliance on his own interpretation of these laws left him vulnerable to counter charges.
MR HOSER'S MANNER OF DEALING WITH AUTHORITY
In discussions with VicRoads officers it became clear that there were a variety of attitudes towards Mr Hoser ranging from the belief that he could have been the victim of personal antagonism and unfair treatment to a strongly held conviction of his unfitness to hold a driver's certificate.
Since 1987 Mr Hoser has been concerned almost to the point of obsession to ensure that his contact with authority has been recorded and documented and that he has an authentic record of any incidents with passengers that could lead to complaints or future difficulties. This has had the destructive effect in practice of Mr Hoser developing a style of dialogue designed to obtain admissions of actions or views from those being taped. It is not surprising that this cross-examining style of discussion has led to some antagonism or hostility and when the taping has been discovered to a sense of attempted entrapment.
Records of dialogue recorded in this way have indicated unprofessional behaviour on the part of some officials and have also given indications of frustration by those talking to Mr Hoser at what appears to be his 'bush lawyer' or 'smart Aleck' behaviour. His endeavours to take photographs of police and VicRoads officials during the course of their official duties has also angered some.
Added to this, Mr Hoser has almost certainly antagonised officials at all levels by his unwillingness to accept a direction or view if he believes it is wrong and by forcefully challenging authority in these circumstances. Correspondence on his file provides evidence of peremptory demands by him for action, accusations of dishonest dealings and derogatory character imputations. Sometimes these have been directed towards the only people likely to be able to assist him.
Overall, I believe that a combination of Mr Hoser's very visible activities, his willingness to challenge authority in circumstances where others would/not and his gathering of evidence of unprofessional behaviour has made him disliked by a number of Vicroads officials and police.
RECORD OF THE EVENTS OF 29 AUGUST, 1987, CONCERNING THE ASSAULT CHARGE AGAINST MR HOSER RELATING TO MS PHILLIPA O'SHANNESSY
In respect to Mr Hoser's record with passengers this assault charge against him appears to be the only substantial cause for concern as to his being a fit and proper person to have responsibility for passengers. Transcripts of the hearing of this charge were provided by Mr Hoser, and in addition the sworn statements of three witnesses were made available. Mr Hoser has also described in detail on two occasions his version of the story.
The case revolves about two different versions of an incident in which Ms O'Shannessy, a passenger of Mr Hoser, refused to pay her fare in a multiple hiring situation. By her own admission this was the second incident of this sort she had been involved in with Mr Hoser, and according to his account she was drunk and he chased her and forcibly returned her to the taxi and then drove her to the St Kilda police station to have her charged with fare evasion. During the journey he said that she forced him to stop the car and she got out. He and another taxi driver who had followed him then 'frisked' her for identification and while she appeared to have no identification on her, her wallet had fallen to the ground when she had got out of the car. Because Mr Hoser had picked it up and she wanted to regain possession of it, she was prepared to go to the police station with him.
At the police station Mr Hoser said that he handed in her wallet and requested that she be charged. This request was refused and no charges of any sort were laid and Mr Hoser and Ms O'Shannessy left the station together. Seven months later Mr Hoser was charged with the assault of Ms O'Shannessy.
During the court proceedings Mr Hoser's account was corroborated by one of the multiple hirers whom he had not previously known. That testimony was, however, contradicted by Ms O'Shannessy who testified that Mr Hoser had hit her, knocked her to the ground and then kicked her as she lay there. She denied that she was chased by him as she was evading the payment of her fare, and said that on the contrary she paid him ten dollars and he stole another twenty dollars from her wallet. She said that he drove her in his taxi following the incident
passing and took her to St Kilda police station independently of Mr Hoser. Her version of the incident was corroborated by a work colleague and another woman who was known to her and was also in the taxi. Two police officers who were in the police station at the time of the incident attested to the fact that Ms O'Shannessy and Mr Hoser entered the police station separately a few minutes apart.
At the court hearing Mr Hoser was convicted of assault and sentenced to six weeks in prison. He appealed and although it was strongly suggested that Ms O'Shannessy was in Melbourne at the time, she did not attend the hearing; the reason given being that she was overseas. Following her non-appearance Mr Hoser's appeal was upheld.
This case is obviously important because of its implications for judging Mr Hoser's fitness to be in charge of passengers in circumstances where they may enter into a dispute with him. On the balance of probabilities Mr Hoser's account of the incident has been accepted by the Arbitrator as the version most likely to be true. It is more consistent with the medical evidence of Ms O'Shannessy having some soreness immediately following the incident but no visible injuries. Mr Hoser's testimony also makes sense of otherwise inexplicable actions such as his going to the police station and handing Ms O'Shannessy's wallet in after he had allegedly kicked, hit and robbed her. Finally, Ms O'Shannessy's non-attendance at the appeal must also be taken into account.
Even on the basis that Mr Hoser's appeal was upheld and his version of the incident is the true one, it still provides ground for concern. Mr Hoser said that he did not hurt Ms O'Shannessy and used as little force as possible to bring her to the police station.
Nevertheless, in these circumstances Ms O'Shannessy could almost certainly have established that she was assaulted on the basis of Mr Hoser forcibly pushing her into the taxi and driving her to the police station against her will. These were circumstances which could also have given her real cause for fear and indeed there is evidence that when she arrived at the police station she was in an hysterical state. When faced with the Arbitrator's concern about his actions, Mr Hoser explained them in terms of the growing practice of fare evasion, his anger at this behaviour and the right he felt he had had at the time to bring her to justice when she had already cheated him once. He was also adamant he did not hurt her and that her principle emotion was anger and he believed what fear she had was more associated with being charged as a fare evader than of being hurt by him.
Making a decision in this case is particularly difficult because of the indications that Mr Hoser could have been subjected to prolonged victimisation from the police and other authorities in New South Wales beginning in 1979 when he was seventeen years old and continued for several years.
An assessment must be made of the extent to which this could have accounted for his patterns of behaviour in Victoria which have antagonised certain officials and made him particularly visible to them. As a comment in this respect his obsessive attitudes in regard to records and his actions towards authority are not dissimilar to those of many people who have come to this country and have suffered discrimination at the hands of oppressive bureaucracies overseas.
In Mr Hoser's case his educational background and obvious intelligence have contributed to his building up a huge body of information designed to support his assumptions, and as a consequence to creating a scenario which is almost certainly a composite of fact and distortion. The actions he has taken on the basis of his sense of persecution have also compounded his difficulties and contributed to a self fulfilling prophecy of official antagonism and attempts to remove him from the taxi industry. His accusations to the Chief Executive of VicRoads have on occasions been personally offensive and he has made wild assertions about other people based on a very slim platform of fact.
It is my view that Mr Hoser honestly believes what he says and that his possible distortions or unwarranted connections between events is not an unreasonable reaction to the victimisation he appears to have suffered in the past. His almost obsessional need to record all incidents (all his voluminous records are held in triplicate in different places to prevent them being lost in the event of theft) is obviously directed towards establishing and protecting the truth rather than creating a fiction. Furthermore, the theft of his tape recorder, camera and other records both in New South Wales and Victoria have provided justification for this practice.
There is probably some truth in his assertion that his tape recording of his conversations with police and others has stopped unfounded charges being laid against him.
The last serious incident relating to Mr Hoser occurred four years ago (O'Shannessy) and on balance, I do not believe Mr Hoser is a risk to passengers and l consider that he is almost certainly a fit and proper person to drive a taxi.
I do believe, however, that if the present cycle of antagonising the police and VicRoads officials and thereby inviting reprisals is not broken, his pattern of difficulty with the law will continue and he will sooner or later have his driver's certificate revoked. I am also concerned that this strong sense of injustice may lead him again to a similar sort of incident as that resulting in the assault case against Ms O'Shannessy unless he is counselled and given reason to place greater trust in authority.
In saying that I must comment that I have been involved in the past with attempting to reverse the effects of negative attitudes of police towards particular individuals or groups and I know that while it is very difficult, it is possible provided there is support for it at a senior level and there is a mechanism for ensuring that any unprofessional actions become known to senior authorities.
On the basis of the foregoing, including my belief that Mr Hoser could be the victim of past social injustice, I recommend:
1. That Mr Hoser be granted a temporary taxi driver's certificate to be reviewed by the Director, Registration and Licences, in six months time.
2. That Mr Hoser be warned of the serious view that will be taken of any action indicative of taking the law into his own hands or interpreting it to his own advantage.
3. That in order to break the cycle of antagonising authority and inviting reprisals, Mr Hoser be advised by the Director, Registration and Licences, to seek counselling and advice with the aim of:
(a) modifying his response to officialdom and his handling of disputes with passengers including taking the law into his own hands;
(b) developing strategies and practices designed to help him to stay out of trouble.