CITATION: Farrar v Commissioner of Police, New South Wales Police Service [2000] NSWADT 79 DIVISION: General Division APPLICANT Patricia Doreen Farrar PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003120 HEARING DATES: 26/04/00 SUBMISSIONS CLOSED: 04/26/2000 DATE OF DECISION: 06/21/2000 BEFORE: Skinner PM - Judicial Member 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 Coleman v Commissioner of Police [2000] NSWADT 15 CASES CITED: O'Kelly v Commissioner of Police (No 2) NSWADT 74 Arps v Commissioner of Police [2000] NSWADT 35 APPLICANT REPRESENTATION: Patricia Doreen Farrar RESPONDENT Commissioner of Police, New South Wales Police Service ORDERS: 1. The decision is remitted to the respondent for reconsideration. Reasons for Decision 1 Under s 34 of the Road Transport (General) Act 1999 a police officer may suspend the driving licence of a person who has been charged by that or another police officer with refusing to submit to a breath analysis under s 15 of the Road Transport (Safety and Traffic Management) Act 1999, contrary to subs 15(4) of that Act. 2 The suspension is until the charge is heard and determined by a court or withdrawn – see subs 34(3) of the Road Transport (General) Act 1999. 3 The applicant, Ms Farrar, was driving a motor vehicle on the evening of 29 December 1999 on City West Link, Lilyfield. Police were conducting random breath testing on that road near the intersection of Catherine Street west bound and Ms Farrar was pulled over and asked to submit to a breath test on an alcometer. 4 She did so and returned a reading of 0.105, on the version in the Police Facts Sheet, and 0.104 on the applicant's version. The applicant was then arrested and conveyed to Balmain Police Station to enable a breath analysis to be carried out. At the police station she was required to submit to a breath analysis but upon three occasions failed to supply an adequate sample of her breath for the analysis to be conducted. 5 The applicant was then charged with a breach of subs 15(4) of the Road Transport (Safety and Traffic Management) Act 1999 and her driving licence was suspended on that day under s 34 of the Road Transport (General) Act 1999. 6 On 20 April 2000 Ms Farrar applied to this Tribunal under s 48 of the Road Transport (General) Act 1999 for a review of the decision to suspend her licence. On 26 April 2000 the matter came before me for hearing. 7 Material before me in the hearing included a copy of a letter from the applicant to the Commissioner of Police dated 14 February 2000 with attachments, which made submissions as to why the charge against her should be withdrawn. 8 That letter and attachments informed me: (a) of the chronic respiratory problems of the applicant, and that she had been an asthmatic for 35 years; (b) that she told the police when pulled over that she had drunk half a glass of wine only 7 minutes earlier; (c) that after using a Ventolin puffer she was able to provide a breath sample; (d) the applicant's version of events as to the analysis attempts at Balmain Police Station; (e) that she asked for a blood test; (f) that she had never been charged with an alcohol related offence and was a person of good character; (g) as to the applicant's employment and family circumstances; and (h) that she was held in high regard by her colleagues and treating doctor. 9 I was also informed by the applicant orally in the hearing that: (a) she has pleaded not guilty to the charge; (b) the case is set for hearing on 30 October 2000; (c) she will be absent from Australia for a period of three months from the 15 July 2000 to the 15 October 2000. (d) she was going on a fly/drive working holiday in Tasmania in May, also attending a conference in Hobart at that time, with her daughter who didn't drive; (e) she had been forced to use public transport and taxis since her driving licence suspension to enable her to go about her normal daily activities; and (f) she cared for an aged aunt in Elizabeth Bay, visiting and taking her out one or two times a week and shopping for her and doing her washing. 10 None of this material was essentially disputed by the respondent for the purposes of this application, although I note that the police facts record an observation of the informant, Constable Hogan, who was one of the arresting officers at the scene of the road-side breath test, that the applicant appeared moderately affected by and smelt slightly of intoxicating liquor at the scene. That seems to sit at odds with what the applicant says at 8(b) above. 11 Further of course, by the charge the respondent alleges a wilful failure to submit to the breath analysis and the applicant's submissions as to withdrawal were not accepted. 12 The Tribunal's discretion in applications of this nature is governed by subs 48(3) of the Road Transport (General) Act 1999, which is in the following terms: 48 Review by Administrative Decisions Tribunal of certain decisions made under road transport legislation . . . (3) Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal: (a) 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 the suspension, and (b) 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. 13 Paragraph (b) of subs 48(3) has been considered by other members of the Tribunal. In Coleman v Commissioner of Police [2000] NSWADT 15, Deputy President Hennessy said, at paragraph 19 of her reasons for decision: In my view, the circumstances of the offence, which cannot be taken into account, include the breath analysis or blood test reading which was recorded by the police, the events immediately preceding the alleged commission of the offence, the reason the applicant was driving and any defence on which the applicant intends to rely. 14 I agree with and adopt this reasoning. As a consequence, the only circumstances that can be pressed by the applicant as being exceptional are those that I list above in paragraphs 8(a) and 8(g), and 9(b) to 9(f). 15 As to the delay in hearing, paragraph 9(b), see below. As to the other circumstances, none of them individually, nor all or any of them collectively, satisfy me as being exceptional circumstances justifying a lifting or variation of the suspension of the applicant's driving licence. 16 The delay in the hearing of the police charge before the Local Court is however something that I consider is an exceptional circumstance. The period involved is exceptional when compared to the normal time frames in Local Courts for matters of this nature. 17 In Coleman, above, Deputy President Hennessy said, at paragraph 16 of her reasons for decision: In my view s 48(3) was designed to avoid a situation where an applicant suffers significant hardship because of exceptional circumstances which arise through suspension of licence. 18 With respect to Deputy President Hennessy, if this were to be taken as being an exclusive definition of the exceptional circumstances covered by s 48(3), in my opinion it is cast too narrowly. I can see no reason to qualify exceptional circumstances by a determination of their provenance, and although in the usual run of case it may very well be the subjective effect upon the applicant of the suspension that is to be considered, that may not always be the case. 19 The instant application illustrates both points. It raises a purely objective circumstance, the length of the suspension, that I think is exceptional and, subject to an assessment of whether it justifies a lifting or variation of the suspension, within the terms of subs 48(3)(a). Further, the hardship, significant or not, thereby imposed upon the applicant is not something that I think is relevant to my determination as to whether the court delay justifies a lifting or variation of the suspension. 20 The power that the respondent exercised under s 34 of the Road Transport (General) Act 199 denies persons such as the applicant procedural fairness at the time the suspension is imposed – see also Deputy President Hennessy in Coleman, above, at para 16 of her reasons. 21 In the light also of the limitation imposed by subs 48(3) of the Road Transport (General) Act 1999 upon the discretions in reviewing this power that this Tribunal would otherwise have under s 63 of the Administrative Tribunals Act 1997 (the 'Tribunal Act'), this power of suspension has been described by me in the decision of O'Kelly v Commissioner of Police (No. 2) [2000] NSWADT 74 as draconian. 22 However, as I noted in O'Kelly (No. 2), that was the clear, bipartisan, intent of Parliament and followed the recommendations of the Parliamentary Staysafe Committee. This power to suspend the licence on the spot - before the determination of guilt of the charge and without hearing any matters in mitigation of penalty, and whether or not the person has an otherwise impeccable driving record - is deliberately draconian and intended to be a powerful public safety measure and deterrent against drink driving. See also Deputy President Hennessy in Arps v Commissioner of Police [2000] NSWADT 35. 23 Nonetheless, Parliament has afforded a right of review, and this Tribunal is to decide what the 'correct and preferable decision is having regard to the material then before it, including … any applicable written or unwritten law … [and] may exercise all of the functions that are conferred or imposed' on the police officer who made the decision to suspend (see subss 63(1) and (2) of the Tribunal Act) subject to the further qualifications of subs 48(3) of the Road Transport (General) Act 1999. I also note the provisions of s 64 of the Tribunal Act which require that I give effect to the clear Government policy of deterring drink drivers. 24 A driving licence is an everyday necessity for modern life. The power to suspend a driving licence until a charge is heard and determined in court must be assessed in degree of severity by contemplation of how long that suspension continues. If any illustration of this fairly trite observation is needed, I note that the lengths of disqualification from holding a driving licence which are imposed upon persons convicted of relevant traffic offences by s 10A of the Road Transport (General) Act 1999, increase with the severity of the offence. 25 Also I note that in contrast to s 34, s 33 of the Road Transport (General) Act 1999, gives the respondent a power to suspend driving licences for periods of up to only 14 days, and subject to the conditions therein expressed. 26 Unless the suspension of her driving licence is lifted or varied this applicant will have a ten month suspension of her driving licence imposed upon her without her having the opportunity to be heard on the facts or the penalty options. Apart from my general concerns as to the fairness of that, I note the concerns of President O'Connor J expressed in O'Kelly v Commissioner of Police (No. 1) [2000] NSWADT 43, at para 7 of his reasons for decision: 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. 27 A delay from 30 December 1999 to 30 October 2000 is a great deal longer than that which the President expressed concern about, and I therefore adopt his comments a fortiori. 28 However if the delay was at the request or other instigation of the applicant, it is not a matter that I would consider as justifying the lifting or variation of the suspension of her driving licence. 29 It was not made clear to me in the hearing as to why there is this delay, but I gathered at least some impression that it was partly to accommodate the absence of the applicant overseas for three months. If that is not a correct inference, nonetheless it is true that I have not been provided with a full explanation. 30 However neither party had the opportunity before me to address inferences unfavourable to their case that may arise from a consideration of the court history. Further, if there had been a dispute as to whether either party had in some way occasioned or contributed to the delay, that would not have been able to be resolved by me, see below. 31 Upon the factual material before me I am unable to come to a final view as to what the correct and preferable decision is or, to use the wording of s 48(3) of the Road Transport (General) Act 1999, whether the exceptional circumstance of the long delay in disposition by the court of the charge against the applicant justifies a lifting or variation of the suspension. 32 Nonetheless, the applicant was unrepresented before me and that she did not address the issue of the court delay is in my opinion not something that in the circumstances of this case should determine the application against her. There will always be difficulties in determining the reasons for court delays if there is no agreement between the parties as to same, and in any event is a matter for the court in question by reference to the court file, which would contain the appropriate notations as to applications for adjournment, submissions as to the party's circumstances and the like. In my opinion an examination of the reasons for delay in the Local Court is an inappropriate task for this Tribunal to embark upon in respect of this application. 33 In the circumstances I propose to deal with this application by remitting the decision to the respondent for further consideration, pursuant to s 65 of the Tribunal Act. In doing so I recommend that unless it is the view of the respondent, upon a fair assessment of the course of the charge in the Local Court to date, that the delay in the hearing of the charge against the applicant is a matter for which she is responsible, the suspension of her driving licence be lifted forthwith. 34 I only make a recommendation, not a direction, and don't set aside the suspension myself before remitting the matter to the respondent (see subs 63(3)(d) of the Tribunal Act) because as I note above I am unable to be satisfied within the terms of subs 48(3)(a) of the Road Transport (General) Act 1999 to the degree necessary to lift the suspension, which is of course equivalent to setting aside the decision to suspend. 35 I trust however that my recommendation will be followed. It seems to me that Parliament, in enacting this power and setting no upper time limit for the duration of the suspension but enacting s 34(3) of the Road Transport (General) Act 1999, must always have anticipated a diligent progression of the court proceedings in relation to the charge. 36 I further recommend that the decision to suspend the applicant's licence be reconsidered and notified to the applicant by 30 June 2000, which is six months after the original decision. 37 The formal order that I make is: 1. The decision is remitted to the respondent for reconsideration. 38 I make no award as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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