Anderson v Commissioner of Police, New South Wales Police

[2005] NSWADT 248

CITATION:	Anderson v Commissioner of Police, New South Wales Police [2005] NSWADT 248
DIVISION:	General Division
PARTIES:	APPLICANT Simon Scott Anderson RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053292
HEARING DATES:	30/08/05, 02/09/05
SUBMISSIONS CLOSED:	09/02/2005
DATE OF DECISION:	09/02/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Road Transport (General) Act - driver's licence suspension
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Road Transport (General) Act 1999
CASES CITED:
REPRESENTATION:	D McKay, solicitor W Pisani, agent
ORDERS:	Decision under review set aside.

1 Section 48 of the Road Transport (General) Act 1999 provides, relevantly:

‘ 48 Review by Administrative Decisions Tribunal of certain decisions made under road transport legislation

(1) A person aggrieved by any of the following decisions made in relation to the person may apply to the Administrative Decisions Tribunal for a review of the decision:

(a) a decision of a police officer under section 34 to suspend the person’s driver licence,

…

(3) Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal:

(a) is not to vary or set aside a decision to suspend a driver licence or authority to drive unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and

(b) is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged.’

2 HIS HONOUR: The Tribunal has before it an application to vary or set aside the police constable’s decision to suspend the applicant’s driver licence after a breath test. The breath test was administered on Sunday morning, 7 August 2005 at approximately 9am by the roadside soon after the applicant drove from the Louth racecourse and about 1 km from the racecourse. There are affidavits relevant to the application from the applicant and from a woman, Alison Louise Lowe.

3 The usual position of the Tribunal is, as is well known to the Commissioner, is only to intervene if, as required by the law, exceptional circumstances are shown to justify varying the decision or setting it aside. The exceptional circumstances that have tended to influence the Tribunal to set aside the police constable’s decision have fallen in a narrow range.

4 Basically one set of circumstances that the Tribunal has often been minded to respond to are those where there is some innocent third party who is clearly dependent in some significant way on the retention of the licence by the licence holder. We have generally given little weight to ordinary life circumstances that might be made more difficult for the licence holder if he or she loses the licence.

5 Another category where we have tended to intervene is to do with the operation of the system of administration of justice. It is not desirable to allow the suspension period to run beyond the likely period of disqualification to be imposed by the magistrate if there is a finding of guilt. It seems to me that the power of suspension could then possibly operate in a manner that is inconsistent with the authority of the magistracy and to that extent undermine it.

6 But this case has brought up a circumstance of a kind that I have certainly never encountered before in dealing with applications of the present kind. The person who was breath tested and found to be .08 had been cleared within the previous half hour or so by the police at the racecourse before he got into his car. I accept his sworn evidence that he did not have a drink between the time of the racecourse breath test and the roadside breath test. My understanding is that he was camped at the camping ground near or within the racecourse the morning after the annual picnic meeting – a major social event in the district. The police (I think to their credit) provided the service of testing people before they left the camping ground and got in their cars. This is in the context of rural Australia where people travel vast distances and obviously where retaining one’s licence is vital. In this particular case, as would no doubt be common throughout rural Australia, the applicant is someone who uses a car regularly as part of his work. Now that factor – that the applicant will suffer inconvenience in connection with his work – normally has not been seen as one of any significance by the Tribunal in dealing with these applications.

7 But here the factor that makes it so unusual is that the police in a sense gave him a clearance. The evidence which we now have today, thanks to the assistance of Mr Pisani in contacting Constable Johnston (the officer who conducted the test at the racecourse), is clear and complete. That is that the Constable did administer to the applicant among others the breath test procedure and he passed the test. The reading was one that utilised the passive test option which I take it does not seek to detect whether there is any alcohol present in the individual but it just simply gives an indication as to whether the individual is over, I presume, .05.

8 PISANI: That’s my understanding, sir.

9 HIS HONOUR: That is Mr Pisani’s understanding. So to have been recorded as .08 virtually immediately afterwards would suggest at least that one or other of the machines was not functioning properly.

10 I think I should indicate the police I think are to be commended for the general strategy. It is just a pity what occurred on this occasion.

11 I do think it is an exceptional circumstance. This decision is, I should indicate, confined really to its own facts.

12 I will grant the application and restore the applicant’s licence pending any further determination of the matter by the Local Court.