R v Counsell; Ex Parte

[1990] TASSC 36

Serial No 33/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Counsell; ex parte Hall [1990] TASSC 36; (1990) Tas R 139; A33/1990

PARTIES:  R
  v
  COUNSELL; ex parte HALL

FILE NO/S:  M145100-
DELIVERED ON:  10 August 1990
JUDGMENT OF:  Cox J

Judgment Number:  A33/1990
Number of paragraphs:  15

Serial No 33/1990
List "A"
File No M145/1990

THE QUEEN v COUNSELL; EX PARTE HALL

REASONS FOR JUDGMENT  COX J

10 August 1990

1. Return of an order nisi for the issue of Writs of Certiorari and Mandamus directed to the Registrar of Motor Vehicles in respect of his action in cancelling the prosecutor's licence to drive a motor vehicle in purported reliance upon reg 41 of the Traffic (Miscellaneous) Regulations 1968.

1. At approximately 9.30 pm on Friday 4 May 1990 the prosecutor was charged with a breach of s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 in that he had allegedly driven a motor vehicle while alcohol was present in his blood in a concentration greater than the prescribed concentration, to wit an alleged concentration of 0.192%. He was also charged with an offence against s6(2) thereof, it being the fact that he was at the relevant time what is known as a first year driver. To these charges he has pleaded not guilty and awaits trial in the Court of Petty Sessions.

1. On the same night that he was charged, there is evidence (disputed by him) that he was handed by the police officer who had administered to him a breath analysis test, a document in the following form:

"department of
roads and transport

cancellation of drivers licences

To assist me in my role of ensuring that Tasmanian roads are as safe as possible I have asked the Police to refer to me all cases where drivers are encountered with blood alcohol concentrations above .15%, or in the case of provisional licence holders .10%.

After these reports are received I assess each case individually and sometimes decide to cancel the drivers licence of the individual concerned.

As your case will be referred to me you should, without delay, seek to provide any written submissions which you believe might cause me not to act to cancel your drivers licence. Such submissions may be addressed to the Manager (Motor Registry), GPO Box 1002K, Hobart, or handed in at any Motor Registry office for prompt delivery to the Manager.

To be effective you should take advantage of this offer within 48 hours.

(signed)

WJ Counsell,

Registrar of Motor Vehicles."

1. In an affidavit filed on his behalf, the respondent deposed as follows:

"4Acting in pursuance of my responsibilities and duties under the Regulations I have adopted a practice, in consultation with the Commissioner of Police, whereby police officers, who administer breath analysis tests to motorists under the provisions of the Road Safety (Alcohol and Drugs) Act 1970, serve upon motorists who record readings of 0.15 or more of a gram of alcohol in 100 millilitres of blood a notice signed by me inviting them to show cause why I should not cancel their driver's licence. This notice is in the form annexed hereto and marked with the letter 'A'."

The notice in question is identical to the one I have set out above and there was evidence that operators are in possession of quantities of these notices in roneoed or photostated form and give a copy thereof to persons whose readings exceed the concentrations mentioned in the document.

1. On 15 May 1990 the prosecutor was served with a document entitled "Notice of Cancellation". In substance it read:

"I am of the opinion that Brian G Hall Date of Birth 26/5/72 is unfit to hold a driver's licence and acting under the powers granted me in Regulation 41 of the Traffic (Miscellaneous) Regulations I hereby cancel licence number C51487

DATED this 8th day of May 1990.

WJ Counsell,

REGISTRAR OF MOTOR VEHICLES."

At the same time he was handed a document to the following effect:

"As you will now be aware, I have cancelled your licence to drive a motor vehicle in Tasmania.

My decision to cancel your licence results from information received about your driving. If there are other factors which might influence me to form a different opinion about your ability and willingness to drive safely, they should be submitted in writing as soon as possible.

In the interim if you are aggrieved by my decision, you may appeal to a Magistrate. An appeal must be lodges (sic) within fourteen days of the cancellation and must indicate the grounds of the appeal.

Yours faithfully,

WJ Counsell,

REGISTRAR OF MOTOR VEHICLES."

1. The prosecutor failed to avail himself of the right of appeal adverted to. On 6 June 1990 the respondent received a letter from the prosecutor's solicitors which requested him to reconsider his action in cancelling the licence. The respondent gave the matter further consideration but declined to alter his decision.

1. In his affidavit the respondent said this concerning the circumstances of making his decision:

"5On or about Tuesday 8 May, 1990 I received a document, annexed hereto and marked with the letter "B", purporting to be signed by Constable F Mainella, in which it was stated that he had administered a breathalyser test to one Brian George Hall of 413 Bermura Street Moonah at 21.41 on 4 May 1990, that a reading of 0.192 had been obtained and that he had served cancellation of driver's licence correspondence upon the said Brian George Hall. In addition, the document gave the date of birth of the said Brian George Hall as 26 May 1972.

6Following receipt of the report from Constable Mainella I reviewed the record of convictions of Brian George Hall referred to in paragraph 4 of the affidavit of the Prosecutor and shown as annexure "C" to that affidavit and also the records kept by me pursuant to Section 11 of the Traffic Act 1925.

7As a result of my examination of the Prosecutor's record together with the advice from Constable Mainella I formed the opinion that the Prosecutor, who was aged 17 and had held a driver's licence since 17 July 1989, was unfit to hold a driver's licence and accordingly I exercised the discretion conferred upon me by Regulation 41(1) of the Traffic (Miscellaneous) Regulations 1968 and cancelled his driver's licence."

The record of conviction showed that in the Children's Court complaints of being in a bar under age on 6 October 1988 and of consuming liquor under age had been dismissed under the Probation of Offender Act 1973 on 3 January 1989, and that on 17 January 1989 the prosecutor had been admonished and discharged for being in a bar under age on 10 November 1988. He had also accepted a traffic infringement notice for failing to display "P" plates on 3 October 1989 and had been penalised in the sum of $35.00 and awarded one demerit point. Mr Pitt, QC for the respondent conceded that the prosecutor's previous convictions in no way rendered him unfit to hold a licence. He said that the sole ground for the respondent's decision was that the prosecutor, a 17 year old provisional licence holder, had been encountered by police with a blood alcohol concentration in excess of .15%.

1. The Registrar of Motor Vehicles is not given carte blanche to cancel driver's licences. Regulation 41(1) provides as follows:

"41 – (1)    The Registrar may, in his discretion, cancel a driver's licence if the person to whom it is issued –

(a)is or has been convicted (whether in this State or elsewhere) of an offence which, in the opinion of the Registrar, renders that person unfit to hold the licence;

(b)is, in the opinion of the Registrar, unfit to hold a driver's licence by reason of intemperance or some physical or other defect;

(c)promotes or takes part in any speed trial or race of motor vehicles in or on a public street, not being a motor vehicle race or reliability trial held in pursuance of a permit granted under Division 3 of Part VI of the Police Offences Act 1935; or

(d)is otherwise unfit to hold a driver's licence."

1. The respondent relies for his decision on paragraph (d). Clearly he cannot rely on any of the other paragraphs, but this is not, as was put in argument, a "cover all" provision authorising the Registrar to cancel a licence in any other circumstances he thinks appropriate. He has a discretion to cancel a licence if the person to whom it is issued "(d) is otherwise unfit to hold a driver's licence". "Otherwise" must mean in some circumstances rendering the licence holder unfit to hold the licence other than those circumstances encompassed by paras (a), (b) or (c).

1. It is implicit that the circumstances of para (c) are capable of rendering the licence holder unfit to continue to hold the licence. In para (b) it is expressly stated that the unfitness arises by virtue of intemperance or some physical or other defect. In para (a) the circumstance rendering the licence holder unfit to hold a licence is not that he has been convicted of any offence (although conviction is a prerequisite to reliance upon para (a)); the circumstance rendering him unfit is the fact that he has committed an offence of a particular type or aggravated nature such that it is one which, in the opinion of the Registrar, renders him unfit to hold the licence. The significance of the conviction is that it provides a solid evidentiary base that the licence holder has in fact engaged in a particular kind of conduct which the Registrar is authorised by the regulations to scrutinize and, if he forms the requisite opinion, rely upon for the cancellation of the licence. Conduct therefore which constitutes an offence having this quality is the basis for a finding of unfitness under para (a). For the purposes of para (d), it cannot be said that by virtue of such conduct the licence holder is otherwise unfit to hold a driver's licence.

1. In my view, the plain words of the regulation prevent the respondent from relying upon conduct amounting to the commission of an offence under the Road Safety (Alcohol and Drugs) Act 1970 or any other Act unless and until there is a conviction. He can only rely in those circumstances on para (a). It is clear that the respondent has relied on the alleged fact that the prosecutor has not merely committed such an offence but has committed it by having a blood alcohol concentration more than three times that prescribed for an ordinary licence holder.

1. A plain reading of the regulation produces this result, but it is obviously consonant with standards of reasonableness and fairness. It would be absurd that the alleged commission of such an offence could be relied on under para (d) if the licence holder were acquitted of that very offence after trial in a court of law. The regulation makes it clear that if such conduct renders a person unfit to hold a licence, it is only when it is proved by conviction that the Registrar may cancel his licence.

1. That renders other points concerning the alleged denial of natural justice to him advanced by the prosecutor unnecessary to answer. However, it may be desirable if the matter goes further and I am held to be wrong in my interpretation of the regulation that I make a finding in respect of the challenged issue of fact.

1. I accept the prosecutor as an honest witness. I have no reason to doubt his claim that he was handed a number of documents after he had been tested, charged and bailed, had taken them home and placed them in a folder from which he had later taken all of them to his solicitors. His case is that he did not receive a document in the form referred to in para (4) of the respondent's affidavit and that no such document was among the papers handed to his solicitors. If no such document was in his solicitors' hands, and I reject as unthinkable that they would permit him to swear to its non–receipt if it were, then he must have extracted it before entrusting the rest of the documents to them. Having regard to my assessment of him in the witness box such selectivity is not to be expected of him.

1. I prefer his evidence to that of the police officer who claimed that he did give such a document to the prosecutor. I do not doubt the officer's genuine belief that he did so, but I think he is probably mistaken and that he tended to replace any actual recollection with reconstruction based on his normal procedures. He said he had a particular reason for remembering because the forms in question were not with the box accompanying the breath analysing instrument and containing the operator's usual tools of trade and that he had had to procure one from another room where the bail documents had been prepared and remembered that he had handed it to the prosecutor. As he said he thought he had come on duty several hours earlier and that the day operator had failed to ensure the presence of the forms, it seems surprising that this problem only arose at the time of the prosecutor's test unless, as in turn seems unlikely, the test at 9.30 pm was the first one he administered. The possibility is fairly open that without conscious deception when making his report he filled in with a tick the box indicating that he had given such a document to the person tested. I am satisfied on the balance of probabilities that the prosecutor was not given the document and that he was accordingly denied an opportunity to make representations to the respondent which natural justice entitled him to receive. The order for certiorari will be made absolute on the following grounds:

(a)that the respondent denied the prosecutor natural justice by making the said decision and cancelling the said licence without affording him the opportunity of a hearing or an opportunity to put representations as to how the respondent should have exercised his power under reg. 41 of the Traffic (Miscellaneous) Regulations 1968.

(b)that when exercising his power, the respondent took into account irrelevant material, namely that the prosecutor had committed the offence of driving while exceeding the prescribed alcohol limit in breach of s6(1) of the Road Safety (Alcohol and Drugs) Act 1970 and being a first year driver with alcohol in his blood in breach of s6(2) of that Act on 4 May 1990, notwithstanding that the prosecutor had pleaded not guilty to both charges and that such charges are yet to be heard.