Lowe v Mansfield

[1988] TASSC 66

Serial No 65/1988
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Lowe v Mansfield [1988] TASSC 66; A65/1988

PARTIES:  LOWE
  v
  MANSFIELD

FILE NO/S:  LCA 63/1988
DELIVERED ON:  15 December 1988
JUDGMENT OF:  Underwood J

Judgment Number:  A65/1988
Number of paragraphs:  22

Serial No 65/1988

File No LCA 63/1988

LOWE v MANSFIELD

REASONS FOR JUDGMENT  UNDERWOOD J

15 December 1988

1. This is a motion to review "an order of a magistrate granting the respondent a restricted licence". The order drawn up in accordance with the Justices Rules 1976, r62 provides:

"Application granted enabling the applicant to:

1.Drive his Ford Falcon motor vehicle registered number BG 0306 from his residence at Lot 1, Hilton Road, Claremont to Quarry Road, New Norfolk between the hours of 5am. and 6am., and between the hours of 4pm. and 5pm., Mondays to Fridays inclusive.

2.        All such journeys are to be by the shortest most practicable route.

3.        Not drive a motor vehicle whilst alcohol is present in his body. (sic)

4.To carry a copy of this order and the restricted licence at all times whilst driving and to produce both on demand by a police officer.

5.Not to commit any moving traffic offence against the Traffic Act, 1925 and the Regulations made thereunder.

6.        Onus is on the applicant to establish he is driving within the terms of this order if called upon to do so by a police officer."

1. At the outset it should be noted that, pursuant to the Traffic Act 1925, s36(1), a magistrate is not empowered to grant a restricted licence but to make an order authorising the grant of a driver's licence subject to such conditions or restrictions as are specified in the order. I shall treat the order which is the subject of this notice to review as being an order within the terms of s36(1).

1. The grounds of appeal were:

"1.The Learned Magistrate erred in fact and in law in finding that it would not be contrary to the public interest to grant the said restricted licence.

2.The Learned Magistrate erred in fact and in law in granting the said restricted licence."

1. On the 4 May 1988 the learned magistrate convicted the respondent of driving a motor vehicle whilst under the influence of intoxicating liquor and of driving a motor vehicle with a blood alcohol concentration in excess of the prescribed limit, namely .18 grams of alcohol per 100 millilitres of blood contrary to the Road Safety (Alcohol and Drugs) Act 1970, ss4(a) and 6(1) respectively.

1. On the 23 December 1987 the respondent attended a party at his place of employment, the Department of Main Roads, Rosegarland depot. There he consumed liquor. After the party he and some friends were driven in a motor vehicle to various other places where more alcohol was consumed. On the last journey there was an accident when the vehicle was driven into a ditch on the Boyer Road, Dromedary. The driver and the other occupants of the car, except the respondent, were given a lift from the scene by a passing motorist. After they left, the respondent unsuccessfully attempted to drive the car out of the ditch. Whilst he was doing so two police officers came upon the scene and the respondent was removed from the car, taken to a police station, tested and charged with the offences with which he was subsequently convicted. Due to an excessive consumption of alcohol the respondent has little recollection of the relevant events.

1. On the conviction for driving under the influence of liquor the respondent was fined $175, ordered to pay costs and disqualified from holding or obtaining a driver's licence for 15 months. A conviction was recorded upon the offence of driving with a blood alcohol content in excess of the prescribed limit. The respondent then made application for an order authorising the issue of a driver's licence subject to the restriction that he only be permitted to drive a motor vehicle each Monday to Friday between his place of residence and New Norfolk between 5.00am and 6.00am and 4.00pm and 5.00pm, by the shortest possible route.

1. The respondent was aged 27, married and living with his wife and two children all of whom were dependent on him. His nett earnings were $250 per week. He and his family were living with his parents in order to save money to meet the mortgage commitments on a block of land the respondent owned at Brighton. All his monthly income, together with a government family supplement of $58 per fortnight, was expended on the mortgage and support of the family.

1. In 1985 the respondent commenced employment with his present employer. Although he had been able to make arrangements with his employer to retain his job without a driving licence and a friend had agreed to drive him from New Norfolk to the Rosegarland depot and return each working day, without a licence he was unable to get from his home to New Norfolk in time to be given a lift to work. His wife was also disqualified from holding or obtaining a driver's licence. The learned magistrate found that, if the respondent was unable to drive to and from New Norfolk, he would lose his job and the probabilities were that he would remain unemployed for at least some considerable period of time.

1. His Worship found that the disqualification he had ordered would impose severe and unusual hardship on the respondent and his dependants. No issue was taken with respect to this finding. His Worship then considered the question of whether it would be contrary to the public interest for him to exercise the power granted by the Road Safety (Alcohol and Drugs) Act 1970, s19 and the Traffic Act, s36(1).

1. The respondent had a formidable list of prior convictions. He had been convicted of 14 moving traffic offences including three for driving with a blood alcohol content in excess of the prescribed limit. During the 10 years elapsed since he first obtained a driver's licence he had been disqualified for a total of six years. In the court below counsel for the respondent made detailed submissions to the learned magistrate with respect to these prior convictions. It is sufficient to summarise the effect of those submissions by stating that between 1978 and 1988 the respondent had been unemployed for various lengthy periods and that the majority, if not all, of his convictions were for offences committed whilst he was unemployed. Counsel submitted that boredom associated with unemployment had led to the excessive consumption of alcohol and the commission of the offences. It was submitted that in 1985 the respondent "changed his lifestyle". He married, accepted responsibility for the support of his family and started long term permanent employment. Since 1985 his only convictions were for speeding (1986) and drunk and incapable (February 1988).

1. A certificate from the respondent's general practitioner was tendered to show that there was no evidence of alcohol dependency and the learned magistrate made a finding in accordance with the terms of that certificate.

1. In considering the issue of public interest the learned magistrate referred to the decision of Hayes v Peterson [1972] Tas SR 86 and In re Stockman, Green CJ, 1778 and then said:

"I think the public interest is wide enough for me to construe it on the basis that whether it is appropriate or not to cast somebody upon the unemployment line. In this particular case the applicant has an extensive list of prior convictions, although I do have a statement from a medical practitioner that he's not alcohol dependent. The facts of this matter are somewhat unusual in that the act of driving which was found proved was on one side of the coin rather a technical one, whether that in fact was fortuitous or not ....... is by the way I think. This is the applicant's fourth conviction for exceeding the prescribed limit and as has been quite rightly pointed out by the prosecutor, Mrs. Middleton, he's been disqualified on three previous occasions for that and on three other occasions for loss of demerit points. On the other hand he's a married man with two infant children with significant financial commitments. I think it fair to say that when the applicant was employed his record improved dramatically and I now have evidence that he is in permanent work. If one looks at his history since 1984 albeit that he received in August of 1984 a sentence of two months imprisonment wholly suspended on condition that he commit no offence under the Road Safety Alcohol and Drugs Act for two years, he has committed no such offence apart from this offence for which he has now been disqualified. Therefore taken on its face the applicant did not offend for over three years. ............. The policy behind Section 36 is to mitigate or alleviate hardship caused by disqualification bearing in mind of course the public interest. As I said before I think the public interest is wide enough to consider as a factor the desirability or otherwise of effectively removing a person's ability to be gainfully employed and therefore place him and his family on the Social Security line."

1. The gravamen of the applicant's complaint is that:

(1)A specific error of law occurred in the exercise of the judicial discretion in that the learned magistrate took into account the question of unemployment and the payment of unemployment benefits upon a consideration of the question of public interest under s36(4)(c).

(2)Some unspecified error occurred in the exercise of the judicial discretion evidenced by the making of the order.

1. The Traffic Act, s36(4) applies the following restraints on the exercise of a judicial discretion to order the grant of "a restricted licence":

"No order shall be made under this section unless the magistrate is satisfied –

(a)that the disqualification will impose or is imposing severe and unusual hardship on that person or his dependants;

(b)that the powers of this section should be exercised for the purpose of mitigating or alleviating that hardship; and

(c)that the exercise of those powers for that purpose would not be contrary to the public interest."

1. The Road Safety (Alcohol and Drugs) Act 1970, s19, imposes three further restraints on the exercise of this discretion, namely:

(i)no order can be made if, within three years immediately preceding the conviction which gives rise to the application, the applicant has been convicted of an offence contrary to ss. 4 or 6 of that Act; and

(ii)the making of an order in favour of a person suffering from alcohol dependency within the meaning of the Alcohol and Drug Dependency Act 1968 is deemed to be contrary to the public interest; and

(iii)unless the court is satisfied upon the evidence of a medical practitioner that the applicant is not suffering from such alcohol dependency the court may refuse to make an order under the Traffic Act, s36(1).

1. In Hayes v Peterson (supra) Neasey J examined the meaning of "public interest" in s36(4)(c). His Honour's views were expressly adopted in Webb v Robertson, Chambers J, 1374. Those views encompassed these propositions:

1Having regard to the tenor of the Act, primarily, the public interest is in the protection of the public from the danger created by those who drive motor vehicles whilst affected by liquor.

2         Relevant matters for consideration under 1 include –

(a)  the likelihood of danger to the public if the order sought were granted;

(b)the effect the making of an order would have upon the particular and general deterrent effect created by the penalty of licence disqualification.

3         Relevant matters for consideration under 2 include –

(a)  the nature and extent of the restrictions upon driving sought to be included in the order;

(b)  the likelihood of the applicant driving whilst his judgment is impaired by liquor;

(c)the circumstances surrounding the commission of the offences and the previous convictions (if any) of the offender.

1. There are, as Neasey J observed (p89), no doubt other considerations relevant to the issue of public interest and it would be unwise to attempt to make an exhaustive list. However, the scope and purpose of the Road Safety (Alcohol and Drugs) Act is to provide protection to road users from the risk of injury and damage caused by those who are minded to drive whilst affected by the consumption of liquor. The public interest expressed in s36(4)(c) of the Traffic Act is primarily in the maintenance of that protection. A matter will only fall for consideration under s36(4)(c) upon an application made pursuant to the Road Safety (Alcohol and Drugs) Act, s19 if it is one which touches upon the provisions of or the scope and purpose of either Act.

1. The views in Hayes v Peterson were expressed prior to the introduction of the additional statutory restraints on the exercise of the discretion to make an order consequential on conviction for an offence against the provisions of the Road Safety (Alcohol and Drugs) Act 1970, s19.

1. The correctness of those views is re–inforced by the enactment of those further restraints (Act No 9475). They are supported by the judgment of the Chief Justice in In re Stockman, 1778, which concerned an application made pursuant to the Traffic Act consequential upon an order for disqualification for breaches of that Act.

1. Thus, the prospect of unemployment and its consequences are relevant to the issue of severe and unusual hardship and are matters of legitimate general public concern. They are not relevant factors upon a consideration of the public interest on an application for an order authorising the grant of a "restricted licence" following disqualification for a breach of the Road Safety (Alcohol and Drugs) Act.

1. Accordingly the learned magistrate erred in the exercise of his discretion and the motion to review will be allowed and the order quashed.

1. As the respondent was unrepresented on the hearing of the motion it was agreed that the application should be remitted to the learned magistrate for determination in accordance with law and I order accordingly.