CITATION: Minnis -v- Commissioner of Police, New South Wales Police Service [2001] NSWADT 4 DIVISION: General Division APPLICANT PARTIES: Ian Graeme Minnis RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003380 HEARING DATES: 22/01/2001 SUBMISSIONS CLOSED: 01/22/2001 DATE OF DECISION: 01/25/2001 BEFORE: Hennessy N (Deputy President) APPLICATION: Driver's licence suspension - Road Transport (General) Act - driver's licence suspension MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Road Transport (General) Act 1999 Road Transport (Safety and Traffic Management) Act 1999 CASES CITED: O'Kelly -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 43 Fargher v Commissioner of Police, NSW Police Service [2000] NSWADT APPLICANT REPRESENTATION: G O'Reilly, solicitor RESPONDENT C Capper, solicitor ORDERS: 1. The decision to suspend the applicant's driver's licence is affirmed. Introduction 1 On 2 October 2000, a police officer gave Mr Minnis a Notice of Suspension and Confiscation of Drivers Licence. This notice was issued after Mr Minnis undertook a breath test which showed a reading of 0.090 grammes of alcohol per 100 millilitres of blood. 2 Under s 34 of the Road Transport (General) Act 1999 a police officer may suspend the driver's licence of a person who has been charged with an offence under s 9(3)(a) of the Road Transport (Safety and Traffic Management) Act 1999 in relation to the presence of a middle range of prescribed concentration of alcohol (PCA) in the person's blood. The suspension continues until the charge is heard and determined by a court or withdrawn. (See s 34(3) of the Road Transport (General) Act 1999.) Jurisdiction 3 On 13 October 2000 Mr Minnis applied to the Tribunal under s 48 of the Road Transport (General) Act 1999 for a review of the decision to suspend his licence. That section, in combination with s 34 of the same Act, allows the Tribunal to review a decision of a police officer to suspend a person's licence when that person has been charged with an offence of middle or high range PCA. The police do not have power to suspend a person's licence where they have been charged with a low range PCA offence. Legislation 4 Under s 48(3) of the Road Transport (General) Act , the Tribunal's powers to review a police officer's decision are restricted. Section 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act) allows the Tribunal to decide what the correct and preferable decision is having regard to the material then before it and to affirm, vary or set aside that decision. Section 48(3) qualifies this provision. It states that: 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. Evidence 5 The evidence in this case, which is not in dispute, is contained in a document prepared by the applicant's solicitor, Mr O'Reilly, entitled "Reasons for Application." Mr O'Reilly updated the relevant factual material at the hearing. 6 On his first appearance at the Local Court on 20 October 2000, the applicant pleaded guilty to driving with a mid range PCA reading. He agreed to attend the Traffic Offenders Program. The matter was then relisted for hearing on 8 December 2000. Prior to that date, the applicant's solicitor obtained expert evidence which apparently suggested that the reading at the time of the offence should have been in the low range, not the mid range. The applicant subsequently withdrew his plea of guilty in relation to the mid-range PCA charge. The magistrate adjourned the matter for representations to be made to the Police Service about withdrawing the mid range PCA charge and substituting it with a low range PCA charge. No response has yet been received from the Police Service. The matter is now listed for mention on 9 February 2000. Applicant's submissions 7 Mr O'Reilly for the applicant submitted that the matter had now been delayed for at least 3 months and possibly longer, as a result of obtaining expert evidence and changing the plea to not guilty. If the Crown agrees to proceeding on the lesser charge of low range PCA, or the applicant is found guilty of low rather than mid range PCA, the penalty would probably be more lenient. There is also some chance that Mr Minnis would not be disqualified from driving at all. In Mr O'Reilly's submission the real possibility that the period of suspension would exceed any period of disqualification, amounted to exceptional circumstances. Respondent's submissions 8 Mr Capper for the Commissioner of Police submitted that there was nothing "exceptional" about the facts as outlined by Mr O'Reilly. Whether the applicant is ultimately convicted of mid or low range PCA is a matter for the Local Court, not for the Tribunal. Delay in court proceedings because of a plea of not guilty and the need to obtain expert evidence is a common occurrence. No question of hardship to Mr Minnis was raised. Reasons and decision 9 Pursuant to s 48 (3) of the Road Transport (General) Act the Tribunal is not to set aside a suspension decision unless it is satisfied that there are exceptional circumstances justifying a lifting of the suspension. The Tribunal cannot take into account the circumstances of the offence with which the person making the application is charged. 10 The first question is whether the circumstances outlined above are "circumstances of the offence" with which Mr Minnis was charged. If so, the Tribunal cannot take it into account. In my view the circumstance as outlined by Mr O'Reilly relate to more than the mere circumstances of the offence. They relate to circumstances which have arisen since the offence, namely the obtaining of an expert report, changing the plea to "not guilty" and the consequent delay in the hearing of the matter. They also relate to the possibility that the Crown will alter the charges or the magistrate will accept the expert evidence and Mr Minnis will only be convicted of low range PCA. 11 The second question is whether these circumstances are "exceptional". "Exceptional" is defined in the Macquarie Dictionary, 3rd edition, as "forming an exception or unusual instance; unusual; extraordinary." Mr O'Reilly did not present any evidence which would establish that it is extraordinary, or even unusual, for a person to receive a disqualification period which was less than the suspension period. Nevertheless, it would be of concern if a person was suspended from driving for a longer period than they were ultimately disqualified. In O'Kelly -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 43, the President of the Tribunal, said in relation to a delay of approximately 6 months in having a matter heard: . . . 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. 12 A similar situation to the present case arose in Fargher v Commissioner of Police, NSW Police Service [2000] NSWADT In that case the applicant planned to adduce expert evidence before the Local Court and apply to the Magistrate to have the offence dealt with as a low range, rather than a mid range offence under s 10 of the Road Transport (Safety and Traffic Management) Act 1999. The applicant's representative pointed out that if his client had been charged with low range PCA by the police, they would not have had power to suspend his licence. 13 In that case the Tribunal said at paragraph 16, that the applicant's representative: . . . did not present any evidence which would establish that it is extraordinary, or even unusual, for a person whose licence had been suspended to apply under s 10 of the Road Transport (Safety and Traffic Management) Act 1999 to be convicted of a low range rather than a middle range PCA offence. Although it could be said to be unfair for Mr Fargher's licence to be suspended if he is ultimately convicted of low range PCA, I am not satisfied that this constitutes an exceptional circumstance. 14 Similar reasoning applies to the present case. The police made a decision to suspend the applicant's licence. If certain applications made by Mr Minnis' representatives are successful before the Local Court, Mr Minnis may be disqualified from driving for a shorter period than the suspension. While this situation may be regarded as unfair if it eventuates, the mere possibility of an unfair outcome cannot be regarded as an exceptional circumstance justifying setting aside a decision to suspend Mr Minnis' licence. 15 The decision to suspend Mr Minnis' driver's licence is affirmed. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.