Lowe v Narracott - [1987] TASSC 124

Serial No B54/1987
List "B"

COURT: SUPREME COURT OF TASMANIA

CITATION: Lowe v Narracott [1987] TASSC 124; B54/1987

PARTIES:  LOWE, Robert James
  v
  NARRACOTT, Rodney Shane

FILE NO/S:  LCA 78/1987
DELIVERED ON:  15 December 1987
JUDGMENT OF:  Cosgrove J

Judgment Number: B54/1987
Number of paragraphs: 6

Serial No B54/1987
List "B"
File No LCA 78/1987

ROBERT JAMES LOWE v RODNEY SHANE NARRACOTT

REASONS FOR JUDGMENT COSGROVE J

15 December 1987

On the 23 July 1987, the respondent appeared before a magistrate charged with driving a motor vehicle while his blood alcohol content was in excess of the prescribed amount. The actual blood alcohol content alleged was .09 grams of alcohol in every 100 millilitres of blood. The respondent pleaded guilty and was fined $150 and ordered to pay some costs; his driver's licence was cancelled and he was further disqualified from obtaining a driver's licence for a period of 15 months.

On the same day the learned magistrate heard an application by the respondent for a restricted licence under s36 of the Traffic Act 1925. The application was made in writing and showed that the applicant was aged thirty years, married, but separated, with five children. The application did not disclose the place of abode of the children, but in view of the fact that he claimed to be paying maintenance one can assume they do not live with him. He said in his application that he was a self employed builder, that he worked mostly on his own and that one of his tasks was to maintain roller shutter doors for Wormald International. He said that his hours of work varied according to the number of daylight hours but were confined within the hours of 7am and 7pm Mondays to Saturdays. He said that he was not alcohol dependant and that he was last convicted of a breathalyser offence in 1983 when the reading was .11%. He was given a licence to drive in the course of his occupation between the hours of 7am and 7pm Mondays to Saturdays inclusive.

In fact his record disclosed that in 1975 and 1976 he was on three occasions convicted of being a first year driver with alcohol in his blood and was disqualified on those charges for a total of 27 months. In 1975 he was also convicted of speeding and disqualified for a period of 3 months. He was again convicted of speeding in 1980, 1982, 1985 and 1986. In 1980 he was disqualified from obtaining a licence for 90 days on the basis of lost demerit points and a restricted licence was granted. In 1983 he was disqualified from obtaining a licence for 6 months on the Road Safety (Alcohol & Drugs) charge to which he referred in his application and a restricted licence was granted. On 20 August 1986, he was disqualified from obtaining a licence for 90 days on the basis of demerit points and again a restricted licence was granted. If one includes the present conviction, it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lowe v Narracott

Details

AGLC: Lowe v Narracott [1987] TASSC 124
Case: [1987] TASSC 124
Decision Date: 15 December 1987

CaseChat Overview and Summary

In the Supreme Court of Tasmania, Lowe v Narracott [1987] TASSC 124; B54/1987, the court was called upon to review a decision made by a magistrate concerning the granting of a restricted licence to Rodney Shane Narracott, who had been convicted of driving with a blood alcohol content exceeding the prescribed limit. The case involved a challenge to the magistrate's decision to allow Narracott a restricted licence, which permitted him to drive within specific hours for occupational purposes despite his extensive history of traffic violations, including multiple instances of driving under the influence and speeding.

The central legal issue before the court was whether the magistrate had erred in granting the restricted licence to Narracott, considering his extensive history of traffic violations and the potential public interest implications of such a decision. The court was required to determine whether the magistrate had appropriately considered the public interest in punishing and deterring traffic offences and whether the repeated granting of restricted licences to Narracott constituted an exceptional circumstance.

The court, Cosgrove J, found that the magistrate had failed to adequately consider the public interest in granting a restricted licence to Narracott. Cosgrove J held that given Narracott's persistent and serious history of traffic violations, including multiple instances of driving with alcohol in his blood and speeding, the grant of a restricted licence was not reasonable. Cosgrove J noted that the public interest required that such licences should only be granted in exceptional circumstances, which were not present in this case. The court concluded that the magistrate had either failed to consider the public interest or had misdirected themselves in their consideration. As a result, the order granting the restricted licence was quashed.

In summary, the Supreme Court of Tasmania quashed the magistrate's order granting a restricted licence to Rodney Shane Narracott, finding that the magistrate had not appropriately considered the public interest in light of Narracott's extensive history of traffic violations. The court held that the repeated granting of restricted licences to Narracott did not constitute an exceptional circumstance and was therefore contrary to the public interest.

Orders