Jones v Commissioner of Police, New South Wales Police

[2005] NSWADT 215

CITATION:	Jones v Commissioner of Police, New South Wales Police [2005] NSWADT 215
DIVISION:	General Division
PARTIES:	APPLICANT Kevin William Jones RESPONDENT Commissioner of Police, New South Wales Police
FILE NUMBER:	053236
HEARING DATES:	22/07/2005
SUBMISSIONS CLOSED:	07/22/2005
DATE OF DECISION:	07/22/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Driver's licence suspension - 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 Road Transport (Safety and Traffic Management) Act 1999
CASES CITED:	Minnis v Commissioner of Police, New South Wales Police Service [2001] NSWADT 4 O’Kelly v Commissioner of Police, New South Wales Police Service [2000] NSWADT 43 Ashwood v Commissioner of Police, New South Wales Police Service [2003] NSWADT 255 Arps v Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 Tonnet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 42 Baxter v Commissioner of Police, New South Wales Police Service [2003] NSWADT 256
REPRESENTATION:	APPLICANT S Mason of counsel instructed by Baker Deane and Nutt, solicitors RESPONDENT W Pisani, New South Wales Police
ORDERS:	Order made on 22 July 2005; Decision under review set aside

REASONS FOR DECISION

1 Under s 34 of the Road Transport (General) Act 1999 (the Act), police have the power to suspend immediately driver licences in certain circumstances. In this instance the police suspended the applicant’s licence because he was found, following administration of a breath test, to have present in his blood a prescribed concentration of alcohol in the ‘middle range’ (i.e. 0.08 grammes or more, but less than 0.15 grammes, of alcohol in 100 millilitres of blood): see the Act, s 34(1)(b), read in conjunction with s 9(3) of the Road Transport (Safety and Traffic Management) Act 1999.

2 The suspension may be lifted by the Tribunal, as provided by s 48 of the Act. As relevant to this case, s 48 provides:

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

(cf Traffic Act, s 10E)

(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 …

(2) An application for a review in respect of a decision referred to in subsection (1) (a) … must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn.

(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) …, 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. …’.

3 The following is a revised version of oral reasons given at the conclusion of the hearing of an application made under s 48 of the Act for review of a decision of a police officer made under s 34 of the Act to suspend the applicant’s driver licence.

4 PRESIDENT: We have an application before us for the lifting of the suspension that has affected the applicant’s driver’s licence now for some time. The applicant’s licence was suspended on 28 January 2005. It is now 22 July 2005, almost six months since the suspension.

5 The charge is not due to be dealt with at Queanbeyan Court on 27 September 2005 because, unlike many drivers in this situation, the applicant has exercised his right to plead not guilty. The automatic period of disqualification for a mid-range PCA is twelve months and the minimum period is six months.

6 The submissions today from Ms Mason for the applicant have canvassed a number of matters including the fact that the applicant intends, as I understand it, to place evidence before the Court at Queanbeyan from experts which, if accepted, might result in the charge being reduced to a low-range PCA offence. Police do not have authority to suspend driver licences in low-range PCA cases. But the Court does have a power to suspend in such cases, if the charge is proven.

7 Ms Mason has invited me to have regard to her submissions on the expert evidence, and form a view as to whether a likely outcome of the proceedings at Queanbeyan would be that any offence found proven would be that of low-range PCA.

8 This submission raises the question of whether the Tribunal would if it considered that evidence be transgressing the requirement of s 48(3)(b) of the Act that the Tribunal ‘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’.

9 Mr Pisani, for the respondent – the Commissioner, has submitted that to give consideration to the proposed evidence would involve a transgression of the limitation placed on the role of the Tribunal in this class of matter by s 48(3)(b) of the Act.

10 My attention has been drawn to para [10] of the decision in Minnis v Commissioner of Police, New South Wales Police Service [2001] NSWADT 4:

‘10 The first question is whether the circumstances outlined above are “circumstances of the offence” with which Mr Minnis was charged. If so, the Tribunal cannot take it into account. In my view the circumstance as outlined by Mr O’Reilly relate to more than the mere circumstances of the offence. They relate to circumstances which have arisen since the offence, namely the obtaining of an expert report, changing the plea to “not guilty” and the consequent delay in the hearing of the matter. They also relate to the possibility that the Crown will alter the charges or the magistrate will accept the expert evidence and Mr Minnis will only be convicted of low range PCA.’

11 Mr Pisani disputes the view expressed above, as it relates to the contents of expert reports proposed to be relied upon. He submits that it is not appropriate in matters of this kind to take account of the contents of expert reports that are proposed to be led at the principal proceedings. The argument that appears to have prevailed in Minnis seems to run along these lines that the expert reports themselves were not part of the circumstances of the offence on the night.

12 I suppose on that view the circumstances of the events on the night are the facts of the relevant events – most usually that the applicant was driving, was stopped and has tested positive. But it seems to me that whether the reading is accurate as to the state of the driver’s blood alcohol content is still something to do with the circumstances of the offence. It is just that more detailed, technical information is now being brought to bear which supplements the machine reading. All I want to say today is I would wish to express doubt about the conclusion expressed in Minnis so far as it appears to permit the taking into account of expert reports in an application under s 48. In the many applications that I have dealt with under s 48 I have not acceded to a submission requesting consideration of expert reports proposed to be relied upon as part of a not guilty plea.

13 On the other hand I do adhere to the views that I have expressed at O’Kelly v Commissioner of Police, New South Wales Police Service [2000] NSWADT 43. In O’Kelly I entertained submissions which sought to rely on the delay in the court system in dealing with a not guilty plea as providing an ‘exceptional circumstance’ which might permit restoration of the licence pending hearing. In O’Kelly I said:

‘7 … I am concerned about the long delay in having the matter dealt with. The charge was laid on 3 January but is not listed to be dealt with until 5 June, which seems to me to be an extremely long delay and, as I indicated to Mr Barrie in my comments, I would not want to see a situation develop in the Tribunal where the period of the notice of suspension was approximating the possible period of any disqualification that might ultimately be imposed by the court, even though that period may be set off against the period of disqualification. It would lead to a situation where the role of the court ultimately determining the matter might be seen to be undermined.’
This view has since been applied on many occasions in this Tribunal.

14 I am surprised to hear that a view is now found in some decisions, and I will look at them, to the effect that because the circumstance of long delays is not exceptional within the operation of the justice system, it is therefore not exceptional for the purpose of the examination of the provision that is contained in this Act.

15 It seems to me that this provision, s 48(3), has got to be read as part of a scheme that has to do with the general operation of driver law in New South Wales. And whilst it is obviously not the first type of exceptional circumstance that you might think of, it seems to me there is a significant public interest in ensuring that police suspension practices do not turn into an excessive sanction in cases where people do choose to plead not guilty.

16 So my view is certainly that this factor is not – what might be called – an exceptional circumstance involving the peculiar features of the individual who presents before the Tribunal. But it is one that I believe is necessary to be acknowledged on broader public interest grounds to do with the operation of the justice system. I think it is very important that the Magistrate and the Court be seen as the effective dispenser of the ultimate sanction for bad driving.

17 I would not want a situation to develop where the Magistrate or the Court is imposing a sanction that might be far less than the suspension that has been actually served. I except from this statement circumstances that are of a peculiar kind, such as an outright reduction in the charge due to some expert evidence being accepted. I hold to the view I expressed in O’Kelly.

18 I am concerned at the suggestion that a view may have taken hold among some Members of this Tribunal that it might be thought that just because the justice system’s wheels often necessarily grind slowly once a plea of not guilty is entered, that should somehow be just passed over. This was the interpretation Mr Pisani put on the following comment in Ashwood v Commissioner of Police, New South Wales Police Service [2003] NSWADT 255:

‘25 While the length of time between the suspension of Ms Ashwood’s driving licence and the hearing of the charge in the Local Court is significant – nearly five months – I am not in a position to characterise it as excessive. The equivalent period in Arps was four months.’

19 I do not think this comment goes as far as was suggested in the submissions. It is not ruling out there being a point of time at which the Tribunal might intervene. My own rule of thumb has been to bring the suspension to an end once the delay approximates to the minimum period of suspension, which in a mid-range case for a driver with no significant history is usually 6 months.

20 Now having said that, I think part of the explanation for any thinking that might suggest it is not such an exceptional circumstance that there is a delay in the system, is driven by cases which we have encountered here from time to time where it is unusual conduct of the applicant that is leading to the delay in the disposition of the matter in the court system.

21 I see that as a different circumstance. When I first expressed the view that delay provided an exceptional circumstance, I was dealing with an applicant who was not engaging in any particular strategies or defences that themselves were productive of delay in the system. They were just sitting waiting in the lists. They wanted to plead not guilty, they were preparing their case, but they were sitting waiting in the lists to get on. The only caveat I would want to enter today is that one might not be so flexible in allowing a driver back on the road if a view was formed that they were somehow themselves contributing by the conduct of their case or defence, to the delay that they now seek to rely upon. It is a bit like the idea of coming to equity with clean hands.

22 As to the exceptional circumstance before today’s hearing (the delay in the court lists), I have also had some regard on occasions to the driver history. If one is putting forward a view that the delay that is being suffered has reached the point where it approximates to the minimum period of disqualification or the likely period of disqualification, I think you have got to apply some practical thinking to the matter. If a person has got an adverse record, as I understand what the police say to me and what I read in the Road Safety Act, then if there is a finding of guilty that history will kick up the levels of penalty. So some account has to be taken of that I think.

23 Those observations are probably sufficient to dispose of this matter because I think it is clear from what I have said, that I do think that this person has already virtually reached the point of serving the minimum period of disqualification for a mid-range PCA. I do not think it is appropriate for me to, to some extent, enter into the role of the magistrate by seeking to assess whether the expert evidence is sufficient to bring about a discount.

24 Ms Mason pointed out in her submissions that her searches of the CaseLaw database on which many of the Tribunal’s decisions are published did not reveal any cases where the Tribunal had found exceptional circumstances justifying restoration of the licence pending hearing. The Tribunal has dealt with about two hundred of these applications over the years since the jurisdiction was given. There have been relatively few successful applications. The Tribunal published some of its early decisions such as O’Kelly and Arps v Commissioner of Police, New South Wales Police Service [2000] NSWADT 35 to give guidance as to the considerations that it took into account on these applications. But almost all of the applications since then have been dealt with on an ex tempore basis with reasons being given orally, and not subsequently published.

25 I will use this decision as an opportunity to give an account of the kind of submissions that have been successful. I know that this jurisdiction at some time in the future will probably return to the Local Court, so that there may be some value in making some observations today and possibly fleshing them out as to how we have approached this provision.

26 As to what might be called ‘domestic’ exceptional circumstances, which have been the usual matters that applicants have relied upon in relation to the application of s 48(3)(b), the cases that I think have most influenced me to exercise a discretion in favour of the applicant are those where there are pressing needs demonstrated involving persons for whom the driver has a care responsibility of a significant kind. I am not speaking here of the kind of care that belongs to the ordinary course of living – taking children to school, sport etc – obviously one appreciates the difficulties of mothers or fathers living in outer suburbs with no public transport taking children to sport and music lessons and to school. See for example Tonnet v Commissioner of Police, New South Wales Police Service [2000] NSWADT 42; Baxter v Commissioner of Police, New South Wales Police Service [2003] NSWADT 256.

27 Nor have we been favourable to cases where the car is needed for pursuit of an occupation. In that regard, we have had regard to the Staysafe Committee Report (see Arps for some of the legislative history). The Parliamentarians responsible for the measure well understood that the ordinary exigencies of life in the community would be affected by the suspension policy. It was meant to be a severe deterrent. So I have tended to view more favourably cases where there is some need of a greater kind. It has usually involved a person such as a family member, spouse, child, who is seriously ill and depends for mobility on the driver. Another example is a child with disabilities. We had one case where the child was going to the local public school, but had a condition which might manifest itself suddenly and it was seen as necessary that the mother be called to the school immediately to attend on the child.

28 Another example was a case involving an adult daughter who had been removed to the country but had to maintain regular connection with a drug addiction program. The applicant had to take her to those programs, and the driver needed to be someone who could be trusted to get her there and get her home. Obviously in those cases one seeks as far as possible to obtain independent evidence to support any such submissions from relevant medical authorities or other authorities.

29 The other class of case where there has been some indulgence shown is the situation where the employment has some peculiar level of public benefit or public need. The only case I can recall where I have acceded to submissions along those lines involved a person who was, I think, if I remember correctly, trained in handling special equipment used by fire brigades in country fire emergencies for which a driver licence was required. It was summertime. The applicant’s skills were seen as essential to that activity. There was independent evidence to that effect. The employer, which I think was a rural fire service, had no alternative option in relation to covering that need.

30 As to today’s matter I think it is appropriate to make the order that is recommended. There is nothing in the driver history of the individual which would suggest that he might be facing a suspension if found guilty at the top end of the range. He has now reached roughly the minimum period of disqualification for a mid-range PCA, so it seems to me that it is highly probable that if found guilty of mid-range PCA he has either served his time or come close to serving his time. Therefore it seems to me that the community objectives that are sought to be served by these provisions are being honoured.

31 So for those reasons I grant the application and set aside the decision.