O'Kelly v Commissioner of Police, New South Wales Police Service

[2000] NSWADT 43

CITATION:	O'Kelly -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 43
DIVISION:	General Division
PARTIES:	APPLICANT Raymond O'Kelly RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003022
HEARING DATES:	01/02/00
SUBMISSIONS CLOSED:	02/01/2000
DATE OF DECISION:	02/01/2000
BEFORE:	O'Connor K - DCJ (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 In person RESPONDENT A Barrie, barrister
ORDERS:	1. Decision affirmed, subject to applicant having the liberty to renew the application in two months' time.

Delivered Ex Tempore

Reasons for Decision

1 I have before me an application pursuant to s 34 of the Road Transport (General) Act 1999 in respect of a suspension notice that has been issued by a police officer pursuant to the Road Transport (Safety and Traffic Management) Act 1999.

2 The applicant, Mr O’Kelly, received a notice of suspension on 3 January 2000 and was charged with refusing to supply a sample for breath analysis. The discretion of the Tribunal in relation to applications for review is governed by s 48 of the Road Transport (General) Act 1999, which provides that the Tribunal “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 suspension and 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 Mr O’Kelly gave sworn evidence in which he referred to the following matters. He has extensive physical problems in relation to his spine which have made it extremely difficult for him to walk significant distances and he also has medical problems in relation to his right knee. I note that at the time of lodging his application with the Tribunal he did file some certificates in relation to those matters and those medical certificates have been perused by Mr Barrie for the respondent. Mr O’Kelly indicated that he has extreme pain if he has to walk any distance beyond fifty metres. He also explained that there is no direct public transport link between where he lives at Hebersham and the nearest shopping centre.

4 In cross-examination, Mr O’Kelly acknowledged that he has been dealt with previously in respect of a drink-driving matter and was the subject of a s 556A order on that occasion imposed by the Blacktown Local Court, which was subject to a three year good behaviour bond. Mr Barrie referred to this as a matter that should be taken into account by the Tribunal as it bore on the prospects or otherwise of Mr O’Kelly having imposed upon him a substantial disqualification period if the offence with which he has been charged is proven when it is dealt with by the Penrith Local Court.

5 Mr O’Kelly lives on his own. He has no family member, as I understand his position, to whom he can turn to assist him in respect of his personal needs.

6 I do not regard the circumstances which Mr O’Kelly has referred to as bringing his case into the narrow category of one involving exceptional circumstances. I acknowledge that his ability to manage for himself has been set back by his inability to drive. It would be simply necessary for him to either persist with the approach that he has taken to date, which apparently is to engage in a long walk to the local shopping centre, despite the pain involved, or to ascertain from the public transport grid where local transport does pass by some suitable set of shops.

7 On the other hand, 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.

8 The course of action I propose on this occasion is not to grant the application but grant Mr O’Kelly liberty to reapply if these proceedings are not disposed of in two months’ time and we will look at the matter again then. I trust Mr Barrie can communicate these views to the Police Service with a view to possibly obtaining an early date for the hearing of the matter.

9 My decision on this occasion is to refuse the application but to give Mr O’Kelly liberty to renew the application in two months’ time, which is from 2 April onwards, if he wishes, and we will rely on the existing paperwork and can relist the matter.