The Commissioner of Police v Wilson
[2014] WADC 101
THE COMMISSIONER OF POLICE -v- WILSON [2014] WADC 101
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 101 | |
| Case No: | APP:36/2014 | 4 AUGUST 2014 | |
| Coram: | STAUDE DCJ | 7/08/14 | |
| PERTH | |||
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE COMMISSIONER OF POLICE DARREN LEE WILSON |
Catchwords: | Appeal Road Traffic Act 1974 Disqualification notice Application to revoke notice Whether a viable defence is a relevant consideration in determining whether exceptional circumstances exist |
Legislation: | Road Traffic Act 1974 s 71C, s 71F |
Case References: | Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 Baker v R (2004) 223 CLR 513 Police v Conway; Police v Parker (2006) SASC 186 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Tieleman v The Queen [2004] WASCA 285 Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DARREN LEE WILSON
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE FLYNN
File No : MC 314 of 2014
Catchwords:
Appeal - Road Traffic Act 1974 - Disqualification notice - Application to revoke notice - Whether a viable defence is a relevant consideration in determining whether exceptional circumstances exist
Legislation:
Road Traffic Act 1974 s 71C, s 71F
Result:
Appeal dismissed
Representation:
Counsel:
Appellant : Mr D Anderson
Respondent : Mr S J Blyth
Solicitors:
Appellant : State Solicitors Office
Respondent : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
Baker v R (2004) 223 CLR 513
Police v Conway; Police v Parker (2006) SASC 186
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Tieleman v The Queen [2004] WASCA 285
Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446
- STAUDE DCJ:
Statutory background
1 Section 71C of the Road Traffic Act 1974 empowers a police officer who has reason to suspect that a person has committed a drink-driving offence to give the alleged offender a disqualification notice, the effect of which is to disqualify the alleged offender from holding or obtaining a driver's licence for a period of two months.
2 Section 71E provides that a police officer must revoke a disqualification notice if the officer becomes aware that the breath analysing equipment used was faulty at the time of the analysis or a charge is not laid within 10 days after the time when the notice was given or a charge for the offence to which the notice relates is discontinued.
3 The disqualification notice must include a statement to the effect that s 71F prescribes circumstances in which a person may apply to a court for revocation of the disqualification notice.
4 Section 71F is as follows:
Disqualification notice (s.71 C), court may order police to revoke
(1) A person to whom a disqualification notice is given under section 71C may apply to the Magistrates Court or, if the person is under 18 years of age, to the Children's Court, for an order directing the Commissioner of Police to revoke the notice.
(2) An application made under subsection (1) must –
(a) be made in accordance with any applicable rules of court; and
(b) include particulars of the exceptional circumstances that the applicant alleges justifies the making of the order; and
(c) be served on the Commissioner of Police at least 14 days before it is heard and determined.
(3) The Commissioner of Police is entitled to be heard on an application made under subsection (1).
(4) The court may either make an order directing the Commissioner of Police to revoke the disqualification notice from the day specified in the order or refuse the application.
(5) The court must not make an order directing the Commissioner of Police to revoke a disqualification notice unless it is satisfied that exceptional circumstances exist that justify the making of such an order.
(6) If a court makes an order directing the Commissioner of Police to revoke a disqualification notice, the court is to cause a copy of the order to be sent to the CEO.
5 At issue in this appeal is whether the expression 'exceptional circumstances' in s 71F(5) should be construed so as to exclude the merits of any defence which the alleged offender may have to the charge in respect of which the disqualification notice was issued.
6 In the legislative scheme the provisions to which I have referred follow the evidential provisions in s 70 which are to the general effect of deeming the correctness of a breath or blood analysis carried out in accordance with the Act and the relevant regulations by making the evidence of a certificate of an authorised person as to certain matters prima facie evidence of such matters without more. The effect of s 70 is to significantly restrict the issues of fact that might otherwise arise in a prosecution of a drink-driving charge. For this reason the penal consequences of driving with a blood alcohol content exceeding a prescribed amount or refusing a test are rarely avoided.
7 It is, however, an element of any offence charged under s 63 or s 64 of the Act that the alleged offender was, in fact, driving a motor vehicle at the relevant time. This case involves an assertion by the alleged offender that he was not driving at the material time.
Factual background
8 The respondent has a dreadful record of traffic offence convictions. As at 21 February 2014 he was under his second life disqualification from driving by reason of having been convicted on 14 January 2012 of refusing a breath test.
9 On the material date the respondent was charged with driving under the influence of alcohol pursuant to s 63 of the Act and given a disqualification notice which specified a blood alcohol content of 0.213 grams of alcohol per 100 ml of blood.
10 The respondent applied to the Magistrates Court of Armadale for an order pursuant to s 71F directing the Commissioner of Police to revoke the disqualification order. The affidavit was supported by two affidavits, one by the respondent and the other by one Victor Morris.
11 The respondent deposed in his affidavit to his intention to plead not guilty to the charge of driving under the influence of alcohol and a related charge of driving in breach of the terms of an extraordinary licence.
12 He stated that on the material date he had been drinking at a tavern. By arrangement he was picked up by Mr Morris, a friend who lived across the road from him in Kelmscott. On the way home the vehicle driven by Mr Morris crashed into a tree. As the vehicle could not be restarted Mr Morris decided to walk home to get another vehicle with which to tow the damaged vehicle away. Mr Wilson remained with the vehicle. The police attended and dealt with Mr Wilson on the basis that he was the driver of the crashed vehicle.
13 The affidavit of Mr Morris corroborated the respondent's account. He said that when he returned to the crash scene he found that Mr Wilson was not there. A tow truck driver who was at the scene informed him that Mr Wilson had been arrested.
14 At the hearing of the application the respondent gave evidence. He verified his affidavit. He also gave evidence that he was at the material time the holder of an extraordinary driver's licence for the purpose of his work as a self-employed air-conditioning technician. His evidence was to the effect that he obtained the extraordinary driver's licence on the basis that he could not afford to pay a driver as it would cost $1,000 a week. He owed $30,000 in unpaid tax. If he were not able to drive he would suffer financial hardship. In cross-examination he said if he had to employ a driver he would probably become bankrupt.
15 Mr Morris was also called and verified the contents of his affidavit.
16 Neither the respondent nor Mr Morris was cross-examined with respect to his account of the circumstances leading to the respondent's arrest.
17 Counsel for the Commissioner of Police objected to the evidence on the basis that the merits of any defence to the drink-driving charge were an irrelevant consideration. The learned magistrate reserved his ruling with respect to relevance. There was nothing put before the learned magistrate to challenge or contradict the proposed defence. In other words, there was no evidence of the strength of the prosecution case.
The decision appealed from
18 The learned magistrate proceeded on the basis that the court was required to look at the circumstances as a whole rather than try to identify one or more individually exceptional or extraordinary factors.
19 On the issue of whether the viability of a defence was a relevant factor, his Honour referred to the commentary in Motor Traffic Law (Victoria) (LexisNexis) at 5635.30 on s 51(12) of the Road Safety Act 1986 (Vic), the wording of which is virtually identical to s 71F(5).
20 The Victorian scheme prescribes the suspension of an alleged offender's driver's licence until the determination of the charge. The commentary states that, generally speaking, unusual, uncommon or special circumstances such as a viable defence, extreme personal and professional hardship occasioned by the notice of immediate suspension, undue delay or the indefinite adjournment of the case may constitute exceptional circumstances.
21 The position of the appellant at the hearing below and in the appeal was that s 71C could be distinguished from the Victorian equivalent because it prescribed a disqualification for only two months, not to the date of determination of the charge. This distinction was said to support the view that Parliament did not intend that there be any inquiry into the merits of the prosecution or the defence upon an application for revocation.
22 The learned magistrate held that the meaning of 'exceptional circumstances' should not be confined to exclude the circumstances of the offence and the prospects of a successful defence. His Honour held that the combined effect of a possible acquittal and the risk of business failure in the meantime was sufficient to demonstrate exceptional circumstances justifying revocation of the disqualification notice. His Honour indicated, however, that the financial impact of the disqualification notice alone would not have amounted to exceptional circumstances.
The construction of 'exceptional circumstances'
23 The appellant's submissions in this appeal are principally based on what the appellant contends is the statutory purpose of s 71F as revealed, not by its wording, but by extrinsic material in the form of the Parliamentary debates preceding the enactment of s 71F and the explanatory memorandum to the Road Traffic Legislation Amendment (Disqualification by Notice) Bill 2010.
24 The appellant argues that s 71F should be construed to promote that purpose, not to subvert it. It is submitted that s 71F proceedings should not be used to predetermine the outcome of the charge. Accordingly, although the effect of s 71C is to abrogate the presumption of innocence for the period of the disqualification notice, the appellant's position is that possible innocence is not relevant to the issue of whether there are exceptional circumstances justifying a revocation of the notice.
25 In the second reading speech on 10 November 2010 the Minister for Transport stated that the amendments to the Road Traffic Act 1974 proposed by the amendment bill would require the police to charge a person in a timely manner and would also provide that a person could apply to a court to have the disqualification lifted in exceptional circumstances 'such as for employment or medical treatment for himself or herself or a member of his or her family'. The minister said s 71C was intended to act as a further strong deterrent to drink-drivers by imposing an immediate and significant sanction.
26 Reference was also made to the objects of the legislation in remarks recorded in Hansard by the minister during the course of debate on 23 November 2010 (9233). In committee, the minister said:
'Exceptional circumstances' is a phrase that is deliberately broad, intended to leave the broad discretion to the courts.
27 He went on:
Proposed section 71F is not about an early determination of a person's guilt or otherwise; it is about whether a person will be relieved of his disqualification because the Court recognises an exceptional circumstance.
…
In anticipating the sorts of things that might be exceptional circumstances, they could, and would, be likely to include the hardship circumstances that we will debate later and look at the changes to extraordinary licences we are proposing, that is, severe hardship that was caused by a disqualification notice at some particular time, perhaps for using the extraordinary licence to access medical treatment for a child, for example. That is a specific example, but it could be all sorts of things, we will leave it up to the courts to determine those matters.
28 The explanatory memorandum to the amendment bill does not take the matter any further in terms of legislative intent, except in as much as it points out that the Commissioner of Police, to whom notice was required to be given of the exceptional circumstances to be relied upon (s 71F(2)), would have a right to be heard on an application (s 71F(3)).
Use of extrinsic material
29 The Interpretation Act 1984 provides that extrinsic material capable of assisting in the ascertainment of the meaning of a statute includes a second reading speech to a house of Parliament by a minister. Such material may be considered in the circumstances set out in s 19(1)(a) and (b).
Principles of statutory construction
30 The object of statutory construction is to give the statutory provision the meaning that the legislature intended it to have: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [78] (McHugh, Gummow, Kirby & Hayne JJ). The legislative intention is to be determined by applying the rules of construction known to parliamentary drafters and the courts: Zheng v Cai [2009] HCA 32; (2009) 239 CLR 446 [28]; Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29 [30]. These rules include the literal approach, by which the words used are given their ordinary and natural meaning and the purposive approach, by which regard is had to the evident purpose of the legislation by reference to the words used.
Discussion
31 There is no judicial authority on the construction of s 71F.
32 Counsel for the appellant concedes that the words of s 71F(5) in their ordinary and natural meaning confer a broad discretion unfettered by any prescribed criteria. The expression is not defined. Yet it is argued that there should be read into those words an exclusion of the merits of any defence as a relevant consideration.
33 In Tieleman v The Queen [2004] WASCA 285 [15], Murray J, dealing with an application for bail pending appeal, by reference to sch 1, pt C, cl 4A of the Bail Act 1982, found that 'exceptional' is 'an ordinary adjective denoting that the thing to which it is applied is unusual or out of the ordinary, in some way special or an exception to the general run of cases'. At [25] his Honour referred to the dicta of Gleeson CJ in Baker v R [2004] HCA 45, (2004) 223 CLR 513 [13]:
There is nothing unusual about legislation that requires courts to find 'special reasons' or 'special circumstances' as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.
34 Baker concerned the indeterminate sentence provisions of the Sentencing Act (NSW). At [175] Callinan J observed, as to what may constitute 'special reasons' that it may be 'only in combination, or increasing degrees of relevance or importance, that circumstances may come to be or constitute special reasons'. In Tieleman, Murray J (Steytler & Templeman JJ) went on to say [42]:
There is no closed list of what circumstances may constitute exceptional reasons, but it will be necessary for the judge hearing the application to evaluate their strength or persuasive power alone or individually, and, if necessary, in their combination.
35 As has been noted, with respect to the corresponding provision of the Road Safety Act 1986 (Vic) the learned authors of LexisNexis Motor Traffic Law (Vic) predict (no judicial authority is given) that a viable defence may constitute exceptional circumstances, and that the courts have not considered it appropriate to define the phrase 'exceptional circumstances' (5635.30).
36 One obvious reason why this should be so is that the experience of the courts is that a defence to a drink-driving charge is uncommon due to the facility with which the blood alcohol content element of the offence can be proved and the fact that offenders are usually driving when apprehended.
37 The drafters of the Western Australian legislation may be taken to have been aware of corresponding legislation in other jurisdictions, including Victoria.
38 Counsel for the appellant sought to distinguish the Victorian scheme on the basis that it provided for suspension until the determination of the charge to which it related, whereas s 71C merely allows a disqualification for two months.
39 With respect, that difference, without more, does not support the limitation for which the appellant contends. The minister himself made it clear that the discretion to order a revocation was 'deliberately broad'.
40 The Road Traffic Act 1961 (SA) provides for the issue of an immediate licence suspension upon suspicion of a drink-driving charge. Section 47IAB provides that the Magistrates Court may in effect revoke the suspension if it is satisfied, on the basis of evidence given by the applicant, that there is a reasonable prospect of acquittal of the charge in respect of which the suspension notice relates.
41 I have been referred to a decision of the Full Court of the Supreme Court of South Australia in Police v Conway; Police v Parker (2006) SASC 186, 30, wherein it was held that by taking into account a viable defence the court was merely performing an administrative function in substituting the administrative decision made by the police officer, not a criminal judicial one. In that case it was held:
The magistrate need be 'satisfied' as to a 'reasonable prospect' of the person subject to the notice being acquitted of the offence to which the notice relates. Such terminology is indicative of an administrative decision-making process, not of a criminal judicial function.
42 The respondent submits that the discretion is unfettered and that a finding that there is a viable defence does not operate to predetermine the outcome of the charge.
Conclusion
43 It is clear that the purpose and effect of s 71C when viewed in the context of the legislative scheme governing drink-driving offences as a whole is to ensure that the effect of disqualification, which in the vast majority of cases is an inevitable outcome due to the evidentiary provisions in s 70, is from the date of the offence. This serves to protect the community from those who commit such offences and as an added deterrent. Motorists will know that they cannot defer the consequences of a drink-driving charge.
44 Clearly, s 71C has the effect of 'prejudging' the alleged offender in that it allows the imposition of an immediate sanction, consistent with those provisions which deem the correctness of breath and blood analysis. It is wholly in keeping with the operation of the Act in that way that a court to which an application for revocation of the disqualification notice is made may consider, in the few cases where the circumstances might give rise to a defence, the viability of that defence.
45 Such consideration would not amount to a prejudgment of the charge as the appellant fears. The question of whether any proposed defence, alone or considered with others factors, constituted exceptional circumstances would always be a matter of judgment having regard to the particular facts of the case. In such a case, the Commissioner of Police, being entitled by s 71F(2) to be given notice of the application and the particulars of the exceptional circumstances alleged by the applicant, would be able to rebut evidence of a defence by reference to the prosecution case. This could be done by affidavit.
46 Accordingly, the meaning of 'exceptional circumstances' is not confined so as to exclude consideration of a viable defence in determining whether the discretion to order revocation of a disqualification notice should be exercised. The construction sought by the appellant is not open having regard to the text of the legislation and its evident purpose. The extrinsic material referred to does not mandate a different outcome, but is consistent with an intention to confer a broad and unfettered discretion.
47 The appeal is dismissed.
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