Fargher v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 171

CITATION:	Fargher -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 171
DIVISION:	General Division
PARTIES:	APPLICANT Douglas Fargher RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003325
HEARING DATES:	09/11/2000
SUBMISSIONS CLOSED:	11/09/2000
DATE OF DECISION:	11/23/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Road Transport (General) Act - driver's licence suspension - Driver's licence suspension
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Road Transport (General) Act 1999
CASES CITED:
REPRESENTATION:	APPLICANT B Quinn, barrister RESPONDENT C Capper, solicitor
ORDERS:	Order made 09/11/2000: The decision to suspend the applicant's drivers licence is affirmed.

Introduction

1 On 12 October 2000, a police officer gave Mr Fargher a Notice of Suspension and Confiscation of Drivers Licence. This notice was issued after Mr Fargher undertook a breath test which showed a reading of 0.080 grammes of alcohol per 100 millilitres of blood.

2 Under s 34 of the Road Transport (General) Act 1999 a police officer may suspend the driver’s licence of a person who has been charged with an offence under s 9(3)(a) of the Road Transport (Safety and Traffic Management) 1999 in relation to the presence of a middle range of prescribed concentration of alcohol (PCA) in the person's blood. The suspension continues until the charge is heard and determined by a court or withdrawn. (See s 34(3) of the Road Transport (General) Act 1999.)

Jurisdiction

3 On 17 October 2000 Mr Fargher applied to the Tribunal under s 48 of the Road Transport (General) Act 1999 for a review of the decision to suspend his licence. That section, in combination with s 34 of the same Act, allows the Tribunal to review a decision of a police officer to suspend a person’s licence when that person has been charged with an offence of middle or high range PCA. The police do not have power to suspend a person’s licence where they have been charged with a low range PCA offence.

Legislation

4 Under s 48(3) of the Road Transport (General) Act, the Tribunal’s powers to review a police officer’s decision are restricted. Section 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) allows the Tribunal to decide what the correct and preferable decisions is having regard to the material then before it and to affirm, vary or set aside that decision. Section 48(3) qualifies this provision. It states that:

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.
Issues

5 Based on these provisions and the applicant’s submissions, a number of issues arise for determination. In summary, they are as follows:

· has Mr Fargher been “charged” with an offence, within the meaning of that phrase in s 34 of the Road Transport (General) Act?
· is it relevant that Mr Fargher intends to make an application to the Local Court for an alternative verdict for the lesser offence of low range PCA?
· did the police officer misuse his discretion in suspending Mr Fargher’s licence taking into account the defence which is open to Mr Fargher and the presumption of innocence?
· does the time it will take for Mr Fargher’s matter to be determined by the Local Court amount to an exceptional circumstance?
Evidence

6 Mr Fargher was driving a motor vehicle when he was stopped by a police officer and breath tested. The police officer gave Mr Fargher a Court Attendance Notice (CAN). The CAN specified that it related to a breach of s 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999. Under the heading “Short particulars of offence” on the CAN, the following words appear:

Date/time of offence: 12.10.00 7.08 pm
Location: Sapphire Coast Dr, Tura Beach
Brief particulars: Drive m/veh AIQ 97K North
POS.B.T. BAS reading 0.080
Cert number: H059/126/121000

7 Mr Fargher is self-employed. He repairs houses for real estate agents. He needs to travel from place to place to do this job.

Reasons and decision

8 Mr Quinn submitted that Mr Fargher was given a CAN but has not yet been “charged” with an offence, as required by s 34. Section 34(1) and (7) state that:

(1) If a person is charged by a police officer with an offence under section 9(3) or (4), 15 (4), 16 or 22 (2) of the Road Transport (Safety and Traffic Management) Act 1999, the same or another police officer may, at any time within 48 hours after the person has been charged, give the person a suspension notice.
(7) For the purposes of this section:
(a) a person is charged with an offence when particulars of the offence are notified in writing to the person by a police officer, and
(b) a charge is withdrawn when the person charged is notified in writing of that fact by a police officer or when it is withdrawn before the court, and
(c) a charge is determined by a court when the offence is proved or the information is dismissed.

9 I requested Mr Fargher’s counsel to forward a copy of the CAN after the hearing as it had not been tendered in evidence. A copy was also provided to the respondent. Based on the content of the CAN as set out above, I am satisfied that particulars of the offence have been notified to Mr Fargher in writing by a police officer as required by s 34(7). Consequently, for the purposes of s 34, Mr Fargher has been “charged” with a requisite offence.

10 Mr Quinn’s second submission was that he plans to adduce expert evidence before the Local Court on 19 December 2000 and apply to the Magistrate to have the offence dealt with as a low range offence under s 10 of the Road Transport (Safety and Traffic Management) Act 1999. Section 10(1) states that:

If, on a prosecution of a person for an offence under section 9 (3), the court is satisfied that, at the time the person did the act referred to in section 9 (3) (a), (b) or (c), there was not present in the person's blood the middle range prescribed concentration of alcohol but there was present in the person's blood the low range prescribed concentration of alcohol, the court may convict the person of an offence under section 9 (2).

11 The Road Transport (Safety and Traffic Management) Act 1999 defines “middle range prescribed concentration of alcohol” to mean “a concentration of 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 100 millilitres of blood.” “Low range” is defined as “a concentration of 0.05 grammes or more, but less than 0.08 grammes, of alcohol in 100 millilitres of blood.”

12 Pursuant to s 48 (3) of the Road Transport (General) Act the Tribunal is not to set aside a suspension decision unless it is satisfied that there are exceptional circumstances justifying a lifting of the suspension. The Tribunal cannot take into account the circumstances of the offence with which the person making the application is charged.

13 As I understand Mr Quinn’s submission, the exceptional circumstance which would justify the Tribunal setting aside the suspension decision, is that there is a possibility that Mr Fargher may only be convicted of low range PCA. If Mr Fargher had been charged with low range PCA by the police, they would not have had power to suspend his licence.

14 The first question which must be answered in response to this submission is whether this circumstance is a circumstance of the offence with which Mr Fargher was charged. If so, the Tribunal cannot take it into account. Mr Capper submitted that the Tribunal was precluded by s 48(3) of the Road Transport (General) Act from taking the circumstances outlined by Mr Quinn into account.

15 In my view the circumstance as outlined by Mr Quinn relates to more than the mere circumstances of the offence. While evidence relating to the circumstances of the offence will be adduced before the Local Court, Mr Quinn is not asking this Tribunal to take into account those circumstances. Mr Quinn is asking the Tribunal to take into account the fact that if Mr Fargher is successful in his application before the Local Court, it would be unfair for him to have his licence suspended when others charged with low range PCA would not have had their licences suspended.

16 The second question which must be answered in response to Mr Quinn’s submission is whether these circumstances are “exceptional”. “Exceptional” is defined in the Macquarie Dictionary, 3rd edition, as “forming an exception or unusual instance; unusual; extraordinary.” Mr Quinn did not present any evidence which would establish that it is extraordinary, or even unusual, for a person whose licence had been suspended to apply under s 10 of the Road Transport (Safety and Traffic Management) Act 1999 to be convicted of a low range rather than a middle range PCA offence. Although it could be said to be unfair for Mr Fargher’s licence to be suspended if he is ultimately convicted of low range PCA, I am not satisfied that this constitutes an exceptional circumstance.

17 Mr Quinn’s third submission was that the police officer misused his discretion in suspending Mr Fargher’s licence taking into account the defence which is open to Mr Fargher and the presumption of innocence.

18 The breath analysis showed a reading of 0.08 and the police officer concerned decided to suspend Mr Fargher’s licence on the basis of that reading. The officer acted legally in making that decision.

19 Mr Quinn’s final submission was that the time it will take for Mr Fargher’s matter to be determined by the Local Court amounts to an exceptional circumstance. The matter is listed in the Local Court for 19 December 2000. Mr Quinn anticipates that if his application to have the matter dealt with as a low range offence is accepted, it will then be adjourned for hearing in February or March 2001.

20 I am not satisfied on the basis of this submission, that the matter will not be disposed of on 19 December 2000. Section 10 of the Road Transport (Safety and Traffic Management) Act 1999 provides that as long as the court is satisfied that the offence is one of low range rather than middle range PCA, it can convict the person of a low range offence. As long as Mr Quinn’s expert evidence is available on 19 December 2000, there is no reason of which I am aware, that the matter could not be determined on that date.

Orders

21 The decision to suspend Mr Fargher’s driver’s licence is affirmed.