Turner, Andrew Quinton v Visser, Claas

[1998] TASSC 93

93/1998

PARTIES:  TURNER, Andrew Quinton

v

VISSER, Claas

TITLE OF COURT:  SUPREME COURT OF TASMANIA

JURISDICTION:  APPELLATE

FILE NOS:  LCA20/1998

DELIVERED:  6 August 1998

HEARING DATES:  5 August 1998

JUDGMENT OF:  Evans J

CATCHWORDS:

[None available]

REPRESENTATION:

Counsel:

Applicant:  G Tucker

Respondent:  C Geason

Solicitors:

Applicant:  Grant Tucker

Respondent:  Director of Public Prosecutions

Judgment category classification:

Court Computer Code:                  

Judgment ID Number:                  93/1998

Number of pages:  2

Serial No 93/1998

File No LCA201/998

ANDREW QUINTON TURNER v CLAAS VISSER

REASONS FOR JUDGMENT  EVANS J

6 August 1998

The applicant, the defendant in the court below, was convicted on his plea of guilty to a charge of breaching the Road Safety (Alcohol and Drugs) Act 1970, s6(2). The defendant, a provisional licence holder, had driven a motor vehicle while alcohol was in his blood, namely, 0.07 grams of alcohol in 100 millilitres of blood.

It was submitted to the learned magistrate that the Act, s17(5) applied as there were special circumstances why the minimum penalty should not be imposed on the defendant. The learned magistrate rejected that submission and disqualified the defendant from holding or obtaining a driver‘s licence for three months and fined him $200. The defendant seeks a review of these orders.

Late into the night of 23 April 1998, the defendant was helping a friend work on a motor vehicle. Whilst assisting the friend the defendant consumed “a couple of drinks”. Shortly before 1.30am the defendant received a telephone call from his partner who advised that she was bleeding and in a lot of pain. She was two months’ pregnant. The defendant immediately went home. He decided his partner needed to go straight to hospital. There was a nine month old baby in the house as well as a one year old child and a six year old child. The defendant telephoned a friend and arranged for her to look after the children while he drove his partner to hospital. The friend did not drive.

On the way to the hospital the defendant was stopped by the police. He told them of the circumstances and they established that he had consumed alcohol. They drove the defendant and his partner to the hospital and allowed the defendant to organise his partner‘s admission. The police then arranged for the defendant to submit to a breath analysis. His blood alcohol reading was 0.07. That reading is the basis of the penalty which is the subject of this appeal.

The learned magistrate had before him a hospital report that upon the defendant delivering his partner to the hospital she had collapsed. She had suffered a severe loss of blood as a consequence of an incomplete miscarriage. She required four units of packaged cells and emergency surgery. The episode was life threatening.

The principles to be derived from the cases which have considered the meaning of special circumstances in s17(5) were summarised in Strickland v Whitehead B601995 by Zeeman J as follows:

“1     It is not possible to enumerate exhaustively circumstances which may constitute special circumstances.

2       The circumstances put forward as constituting special circumstances exist and it is not appropriate to separately consider each matter put forward and determine whether it amounts to a special circumstance and, if not, to thereafter disregard it in the reasoning process.

3       Circumstances amounting to special circumstances may concern matters connected with the commission of the offence and matters concerning the offender.

4       Generally speaking, circumstances which may be regarded as being common to a large number of breaches of the Act or of persons who commit them do not constitute special circumstances.”

For there to be special circumstances there must be something extraordinary, unusual or atypical. Gela v Cochrane 261992, Crawford J and Dellar v Crawford A551992, Zeeman J. Special circumstances must be clearly distinguishable from the general run of cases that Parliament had in mind when it provided for the penalty of disqualification. Davies v Kennedy A811992, Underwood J.

In Mazengarb v White B381993, Crawford J accepted that driving to save the life or health of another could be a special circumstance. In that case a man drove a motor cycle to find help for an accident victim, a Mr Hudson. No help was immediately to hand. Crawford J at 5 said:

“... It is my opinion that once he had realised that Mr Hudson was unconscious and bleeding profusely he really had no choice, when considering what was right and what was wrong, but to break the law and drive for assistance. Reasonable members of the community would expect that he do so and they would consider it outrageous that he be punished for what he did. It is not in the public interest that such acts, possibly life saving, be punished and deterred. The public interest demanded that he ride the motorcycle to go for help.”

In the present case the learned magistrate in substance found that there were no special circumstances as the defendant could have called an ambulance rather than drive his partner to the hospital. That is certainly correct. The defendant could also have telephoned the police or a taxi and waited to see how long it would take for them to arrive. As he waited he could have tried to arrange for a friend or a neighbour to drive his partner to hospital. All this would have taken time but would have ensured that the defendant did not put himself at risk of being convicted of breaching the Act. He put his partner’s interests before his own and drove her to the hospital. The evidence does not establish whether, in the events that occurred, time was a critical element in the defendant‘s partner overcoming this life threatening episode. As she was suffering from severe blood loss, time was clearly an important factor.

The defendant was confronted with an emergency situation which involved a threat to his partner’s health and potentially involved a threat to her life. Rather than wasting time waiting for, or trying to, obtain the assistance of others the defendant drove his partner to hospital. This must be the sort of situation that Parliament had in mind when exempting offences involving special circumstances from the minimum penalty. Implicit in a contrary view is an expectation that the defendant should have risked watching his partner die as he waited for an ambulance or some other help to arrive. That is an appalling prospect. This emergency is distinguishable from the general run of cases. That emergencies such as that faced by the defendant occasionally occur, does not make them ordinary, usual or typical. I am in no doubt that there were special circumstances why the minimum penalty should not have been imposed. The appeal is allowed.

I will hear the parties as to consequential orders.