PASIC -v- THE POLICE [2001] WASCA 127

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 127
Case No:	SJA:1016/2001	Heard:	18 APRIL 2001
Coram:	MILLER J	Delivered:	24/04/01
No of pages:	13	Judgment Part:	1 of 1
Result:	Appeal allowed Decision of Justices set aside Fine of $1000 substituted with no cancellation of extraordinary driver's licence
PDF Version

Parties:	ARIF ERI PASIC THE POLICE
Catchwords:	Criminal law and procedure Appeal against cancellation of extraordinary driver's licence Whether special circumstances justified exercise of discretion not to cancel licence Turns on own facts Road Traffic Act 1974, s 77
Legislation:	Justices Act 1902, s 199(1)(b), s 199(1)(c) Road Traffic Act 1974, s 76(1), s 76(3), s 76(6), s 77(2)
Case References:	Burke v Muir (1967) 15 FLR 30 Chadwick v R [1985] 1 QdR 320 Davis v Commissioner of Police, unreported; FCt SCt of WA; Library No 8547; 12 October 1990 Flanagan v Knowles [1957] Tas SR 301 Hemphill v Ninyett, unreported; SCt of WA; Library No 920368; 17 July 1992 McCoy and Johnson v Fenton & Smith [1960] Tas SR 149 Smith v Fletcher [1971] Tas SR 279 Stevens v Bowey, unreported; SCt of WA; Library No 3064; 31 October 1980 Stride v Powell [1982] WAR 336 Lowndes v R (1999) 195 CLR 665 Pennings v Maryan [2000] WASCA 172 Road Traffic Board v Hamilton, unreported; SCt of WA; Library No 950508; 21 September 1995

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PASIC -v- THE POLICE [2001] WASCA 127 CORAM : MILLER J HEARD : 18 APRIL 2001 DELIVERED : 24 APRIL 2001 FILE NO/S : SJA 1016 of 2001 MATTER : Justices Act 1902

BETWEEN : ARIF ERI PASIC

Appellant

AND

THE POLICE

Respondent

Catchwords:

Criminal law and procedure - Appeal against cancellation of extraordinary driver's licence - Whether special circumstances justified exercise of discretion not to cancel licence - Turns on own facts - Road Traffic Act 1974, s 77

Legislation:

Justices Act 1902, s 199(1)(b), s 199(1)(c)

Road Traffic Act 1974, s 76(1), s 76(3), s 76(6), s 77(2)

Result:

Appeal allowed

Decision of Justices set aside

(Page 2)

Fine of $1000 substituted with no cancellation of extraordinary driver's licence

Representation:

Counsel:

Appellant : Mr D L Jones

Respondent : Mr S J Wright

Solicitors:

Appellant : Kuscevich & Associates

Respondent : State Crown Solicitor

Case(s) referred to in judgment(s):

Burke v Muir (1967) 15 FLR 30
Chadwick v R [1985] 1 QdR 320
Davis v Commissioner of Police, unreported; FCt SCt of WA; Library No 8547; 12 October 1990
Flanagan v Knowles [1957] Tas SR 301
Hemphill v Ninyett, unreported; SCt of WA; Library No 920368; 17 July 1992
McCoy and Johnson v Fenton & Smith [1960] Tas SR 149
Smith v Fletcher [1971] Tas SR 279
Stevens v Bowey, unreported; SCt of WA; Library No 3064; 31 October 1980
Stride v Powell [1982] WAR 336

Case(s) also cited:

Lowndes v R (1999) 195 CLR 665
Pennings v…

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 Pasic v The Police

Details

AGLC: Pasic v The Police [2001] WASCA 127
Case: [2001] WASCA 127
Decision Date: 24 APRIL 2001

CaseChat Overview and Summary

Pasic appealed against the decision of two Justices of the Peace who had cancelled his extraordinary driver's licence. The cancellation followed Pasic's conviction for drink driving. Pasic submitted that special circumstances existed that justified the Magistrates' discretion not to cancel the licence. Pasic argued that the cancellation would cause him significant hardship and would affect his employment. The Court of Appeal had to decide whether the Justices had exercised their discretion appropriately and whether the circumstances were such that they warranted the Court interfering with the decision.

The Court of Appeal noted that the exercise of the Magistrates' discretion was a matter for their own opinion. The Court held that the Justices had not considered whether there were any special circumstances that might warrant not cancelling the licence. The Court held that the Justices had failed to have regard to the fact that Pasic had no prior convictions for drink driving and that he had taken steps to address his drinking problem. The Court held that the Justices should have considered the effect of the cancellation on Pasic's employment and that this was a special circumstance warranting the exercise of the discretion in Pasic's favour. The Court held that the Justices had erred in law and set aside their decision.

The Court of Appeal substituted a fine of $1000 in place of the cancellation of Pasic's extraordinary driver's licence. The Court held that the fine was sufficient punishment for Pasic's drink driving offence and that it would not unduly interfere with his employment. The Court held that the fine was an appropriate exercise of the Magistrates' discretion in the circumstances of the case. The Court allowed Pasic's appeal, set aside the decision of the Justices, and substituted a fine of $1000 with no cancellation of Pasic's extraordinary driver's licence.

Orders

Orders of the court

Appeal allowed

Decision of Justices set aside

Fine of $1000 substituted with no cancellation of extraordinary driver's licence

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.