Anthony v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 155

CITATION:	Anthony -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 155
DIVISION:	General Division
PARTIES:	APPLICANT John Anthony RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003328
HEARING DATES:	25/10/2000
SUBMISSIONS CLOSED:	10/25/2000
DATE OF DECISION:	11/07/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Impounded vehicle
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Road Transport (General) Act 1999
CASES CITED:
REPRESENTATION:	In person J Tunks, solicitor
ORDERS:	1. The application to release the applicant's vehicle is refused

Introduction

1 Mr Anthony’s car was impounded by police following a “burn out” incident. He applied to police for the return of his car but that application was refused. Mr Anthony then applied to the Tribunal for an order for the release of his car.

2 On 25 October 2000, the Tribunal heard this matter and decided not to make an order releasing Mr Anthony’s car. The reasons for that decision are set out below.

Background

3 Mr Anthony was charged with an offence under s 41(1) of the Road Transport (Safety and Traffic Management) Act 1999. That provision states that:

A person must not, on a road related area, operate a motor vehicle in such a manner as to cause the vehicle to undergo sustained loss of traction by one or more of the driving wheels (or, in the case of a motor cycle, the driving wheel) of the vehicle.
If a police officer reasonably believes that a vehicle is being operated so as to commit an offence under the above section, he or she may seize the vehicle. In this case the vehicle was seized under s 39 of the Road Transport Act.

4 Schedule 1, Clause 5 of the Road Transport (General) Act 1999 (the Road Transport Act) provides that a person can apply to the Commissioner of Police for the release of an impounded vehicle. Clause 5 states that:

(1) Application may be made by any person to the Commissioner for the release of an impounded vehicle into the person's custody.
(2) The Commissioner may release the vehicle to the applicant if:
(a) the period for which the vehicle would be liable to be impounded under as a result of a conviction for the offence that gave rise to its impounding has expired and the prescribed fees for storage of the vehicle by the Commissioner have (except to the extent that the Commissioner has waived payment of those fees) been paid, or
(b) although that period has not expired, the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that:
(i) the offence concerned was not committed with the consent of the applicant, and
(ii) the applicant did not know, and could not reasonably be expected to have known, that the vehicle would be used for the commission of the offence, and if the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle.

Tribunal’s jurisdiction

5 A person may apply to the Administrative Decisions Tribunal for an order for the release of an impounded vehicle into the person's custody. (Clause 6(1) of Schedule 1 of the Road Transport Act.)

6 The Tribunal is not limited to taking into account the same considerations that the Commissioner can take into account in deciding whether to release a vehicle. The Tribunal can take into account any alleged hardship as well as the public interest. The Tribunal can order or refuse to order the release of the vehicle “as justice requires.” Schedule 1 Clause 6(4) and (5) state that:

The Tribunal is not limited by the provisions of clause 5, and is entitled in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case.
Subclause (4) applies even though the Commissioner may have refused an application under clause 5, and the Tribunal may order or refuse to order the release of an impounded vehicle as justice requires.

Findings of Fact

7 There are very few relevant facts in dispute in this case. On 15 October 2000, Mr Anthony was driving his car through the streets of Shellharbour. Three police officers were travelling in a car approximately 50 meters behind Mr Anthony’s car. Two of those officers, Constable Hughes and Senior Constable Thompson, gave evidence to the Tribunal.

8 Constable Hughes gave evidence consistent with his statement of 22 October 2000 that he heard the engine of Mr Anthony’s car revving and the tyres screeching. He saw the rear end of the car move to the middle of the intersection and then back to the curb. Constable Hughes said that the tyres lost traction and were spinning.

9 Constable Thompson also gave evidence that he was in a police car travelling behind Mr Anthony’s vehicle and he heard the engine of Mr Anthony’s vehicle revving and saw the rear of the car drift to the north. He also heard the sound of tyres squealing. When he returned to the scene approximately 20 minutes later he saw tyre marks on the road. As Mr Anthony’s car had already been impounded at that stage he was not able to match tyres with the mark.

10 Mr Anthony’s evidence was that while he did accelerate quickly, there was no smoke and no tyre marks on the road. He said “I did a set of fish tails up the street, but it wasn’t a burn out. I accelerated quickly, due to my high performance vehicle.” He said the vehicle “kicked sideways, slightly out of control.” He said his tyres may have lost traction, but he does not recall them squealing.

11 Mr Anthony tendered two letters written by Matthew Formosa who was a passenger in the vehicle at the time of the alleged incident. In his view, Mr Anthony “did not do a burn out”. This is the only relevant opinion Mr Formosa offers and given that he was not available to be questioned on his view, I give it little weight.

12 Evidence was given about the conduct of Mr Anthony and the police officers after the incident and about Mr Anthony’s previous encounters with police, but as that evidence is not relevant to my decision I will not set it out here.

13 On the question of hardship, Mr Anthony said that he owns the car and it is his only means of transport. He is a builder and he needs a car to go to various building sites. He carries tools in his car and it is too expensive and inconvenient to catch taxis or public transport.

14 A letter was tendered from Mr Anthony’s employer Garry Doughty. The letter confirms that Mr Anthony is a builder and is required to travel from site to site. Mr Doughty also states that the loss of Mr Anthony’s licence “would severely impact on my business and his ability to remain in my employment.”

15 Mr Anthony’s traffic record shows that he has four speeding offences and is currently on a probationary licence.

Reasons and Decision

16 The Tribunal’s task is to determine whether justice requires that an order be made releasing Mr Anthony’s car. In making that decision I must take into account all the relevant circumstances including the public interest and any alleged hardship. The factors set out in Clause 5 to Schedule 1 of the Road Transport Act, do not apply to this case.

17 In the Second Reading speech introducing the Traffic Amendment (Street and Illegal Drag Racing) Bill into parliament, the then Minister for Police, Mr Whelan, stated that one purpose of the legislation is to deter people from engaging in illegal racing, burnouts, doughnuts and other dangerous practices. The Minister pointed out that previous penalties had not proved adequate in deterring this kind of conduct. He added that “. . . taking away the means of committing the offence is a very powerful deterrent.” (Hansard 27 November 1996 p 6739-6740.)

18 In determining whether the car should be released, it is not my task to determine whether Mr Anthony is guilty of committing a burn out offence. That is the role of the police and ultimately a magistrate, if Mr Anthony wishes to plead not guilty to the charges.

19 The evidence demonstrates that Mr Anthony was charged with a burn out offence and that he intends to pay the penalty set out in the infringement notice. He has also been convicted of three speeding offences. These are of little relevance to the question of whether his vehicle should be released.

20 The hardship that Mr Anthony has and will continue to experience in being deprived of his vehicle is real. He will be without his vehicle for three months. The evidence suggests that there is a chance that he could lose his job. On the basis of all the evidence, I consider this to be unlikely, but there is no doubt that Mr Anthony will be severely inconvenienced by not having his car. On the other hand, the intention of parliament in enacting this legislation is clear. The impounding provisions provide a strong deterrent effect on those engaging in certain dangerous driving practices. In this case I am not satisfied that the hardship to Mr Anthony justifies the removal of that deterrent effect.

ORDERS

The application to release the applicant’s vehicle is refused.