Hellyer -v- Commissioner of Police, NSW Police Service [2000] NSWADT 146

CITATION: Hellyer -v- Commissioner of Police, NSW Police Service [2000] NSWADT 146 DIVISION: General Division APPLICANT Alyson Hellyer PARTIES: RESPONDENT Commissioner of Police, NSW Police Service FILE NUMBER: 003308 HEARING DATES: 19 September 2000 SUBMISSIONS CLOSED: 09/19/2000 DATE OF DECISION: 09/19/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Impounded vehicle - Road Transport (General) Act - Impounded vehicle MATTER FOR DECISION: Principal matter LEGISLATION CITED : Road Transport (General) Act 1999 CASES CITED: Russo v Commissioner of Police [2000] NSWADT 40 Boulton -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 135 REPRESENTATION: M Pikett, solicitor E Glover, barrister ORDERS: 1. The Tribunal orders pursuant to Cl 6(1) of the Schedule 1 of the Road Transport (General) Act 1999 that impounded vehicle, registration number MVF 574, be released into the custody of Ms Alyson Hellyer; 2. The Tribunal orders pursuant to Clause 6(7) that no prescribed fees for storage of the vehicle by the Commissioner are payable by Ms Alyson Hellyer or any other person

Background 1 Ms Hellyer's vehicle, registration number MVF 574, was impounded by a police officer on 1 September 2000. At the time, the vehicle was being driven by Ms Hellyer's brother, Darren Hellyer. 2 On 5 September 2000 Ms Hellyer applied to the police officer concerned, to have her vehicle returned to her. That application was refused and Ms Hellyer then applied to the Tribunal for an order for the release of the impounded vehicle into her custody and the waiver of any towing and storage fees. Jurisdiction 3 Darren Hellyer was charged with an offence under s 41(1) of the Road Transport (Safety and Traffic Management) Act 1999. That provision states that: A person must not, on a road related area, operate a motor vehicle in such a manner as to cause the vehicle to undergo sustained loss of traction by one or more of the driving wheels (or, in the case of a motor cycle, the driving wheel) of the vehicle. 4 If a police officer reasonably believes that a vehicle is being operated so as to commit an offence under the above section, he or she seize the vehicle. In this case the vehicle was seized under s 39 of the Road Transport Act. Section 39(1)(a) states that: A police officer who reasonably believes that a motor vehicle: (a) is being or has (on that day or during the past 10 days) been operated on a road or road related area so as to commit an offence under s 40 or s 41 of the Road Transport (Safety and Traffic Management) Act 1999 may seize and take charge of the motor vehicle and cause it to be removed to a place determined by the Commissioner of Police. 5 Section 39(4) provides for the impounding of vehicles so seized. It states that: Any motor vehicle removed to a place in accordance with subsection (1) may, subject to the regulations, be impounded at that place or may be moved to and impounded at any other place determined by the Commissioner of Police. 6 The nature and extent of the Tribunal's jurisdiction in the case of impounded vehicles was discussed in some detail in Russo v Commissioner of Police [2000] NSWADT 40 and Boulton -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 135. In summary, Clause 6 of Schedule 1 to the Road Transport (General) Act 1999 (the Road Transport Act) is the source of the Tribunal's jurisdiction in relation to vehicles which have been impounded. That Clause states that: A person may apply to the Administrative Decisions Tribunal for an order for the release of an impounded vehicle into the person's custody. 7 This provision empowers the Tribunal to make an original decision in relation to the release of a vehicle which has been impounded under s 39 or s 40 of the Road Transport Act. In addition, the Tribunal has jurisdiction under Schedule 1, Clause 6(7) to that Act to "determine whether or not the prescribed fees for storage of the vehicle by the Commissioner, or some of those fees, are payable by the applicant to the Commissioner." Legislation 8 The Road Transport Act provides that a person can apply to the Commissioner of Police for the release of an impounded vehicle. Schedule 1, Clause 5 states that: (1) Application may be made by any person to the Commissioner for the release of an impounded vehicle into the person's custody. (2) The Commissioner may release the vehicle to the applicant if: (a) the period for which the vehicle would be liable to be impounded under as a result of a conviction for the offence that gave rise to its impounding has expired and the prescribed fees for storage of the vehicle by the Commissioner have (except to the extent that the Commissioner has waived payment of those fees) been paid, or (b) although that period has not expired, the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that: (i) the offence concerned was not committed with the consent of the applicant, and (ii) the applicant did not know, and could not reasonably be expected to have known, that the vehicle would be used for the commission of the offence, and if the Commissioner is satisfied, on such evidence as the Commissioner may reasonably require, that the applicant is lawfully entitled to possession of the vehicle. 9 The Tribunal is not limited to taking into account the provisions of Clause 5. Schedule 1 Clause (4) states that: The Tribunal is not limited by the provisions of clause 5, and is entitled in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case. Evidence 10 Ms Hellyer gave evidence to the Tribunal and was cross examined. There was an issue in relation to the ownership of the vehicle. Ms Hellyer's gave evidence that she entered an agreement to purchase the vehicle from her sister in late August 2000 and that the transfer ownership is currently being notified to the Road Transport Authority. 11 On 1 September 2000 Ms Hellyer agreed to lend her vehicle to her brother to attend a methadone clinic in Wollongong. She said, and it was accepted by the respondent, that she did not give her brother permission to drive her vehicle in a way which breached the law. Darren Hellyer has now moved away from the immediate area and Mrs Hellyer told the Tribunal that she would not be lending him her car in the future. 12 Ms Hellyer is a sole parent pensioner with three young children. She transports her children to school and pre-school. She gave evidence about the fact that while she had made other arrangements in the past to transport her children to and from school, it was much more convenient to have her own car. She also said that she is in a difficult situation if one of her children is sick because she does not have access to any one else's car on short notice. She also uses her car for shopping and other chores. Reasons and Decision 13 Based on the legislation, there are several factors which are relevant in deciding whether an order should be made to release the impounded vehicle to Ms Hellyer. These factors are: · whether the applicant is lawfully entitled to possession of the vehicle; · whether the offence concerned was committed with the consent of the applicant; · whether the applicant knew or could reasonably be expected to have known, that the vehicle would be used for the commission of the offence; · any alleged hardship or other circumstances of the case; and · the public interest. 14 The respondent submitted that the applicant was not lawfully entitled to the vehicle because it was not registered in her name and there was no independent evidence that Ms Hellyer's sister has sold her the vehicle. I accept Mrs Hellyer's evidence that she bought the vehicle from her sister in late August and that the transfer of ownership has not yet been registered. Consequently I am satisfied that she is lawfully entitled to possession of the vehicle. 15 The respondent did not dispute Ms Hellyer's evidence that the offence was committed without her consent and that she did not know, nor could she reasonably be expected to have known, that the vehicle would be used for the commission of the offence. 16 Ms Hellyer gave evidence about the hardship that she would suffer if she did not have access to her vehicle. She is a single mother with three young children. She could probably manage without a vehicle, but since she has recently made the financial decision to purchase a vehicle to make her life a little easier, there is no doubt that she would suffer hardship if it was not returned to her. As Ms Hellyer's solicitor wrote in her submission, "Ms Hellyer struggles to support herself and her family on her income. She is purchasing this vehicle to make life easier and reduce the stresses of her life. She is now needing to deal with the confiscation of her vehicle for an offence to which she has no connection and with she was not involved." 17 In this case, the public interest consideration in favour of not releasing the vehicle are that it reduces the risk that any further offence will be committed. It also acts as an added penalty for the commission of the offence. However in this case, Darren Hellyer no longer has access to the vehicle and the impact of the penalty falls on Ms Hellyer, an entirely innocent party. 18 Given that Ms Hellyer was not involved in this offence in any way and that it is her vehicle that has been impounded, I am satisfied that the public interest considerations do not override the hardship that she is experiencing by not having access to her vehicle. I have also taken into account the fact that Ms Hellyer's brother has moved away and she is not intending to lend him her car in the future. 19 I also agree with the comments of the solicitor for the applicant that since Mrs Hellyer is an entirely innocent party, it is unfair for her to be put in a situation which she has to justify her need for her own car to the police. Clause 5 of Schedule 1 allows the Commissioner to release the vehicle where the applicant was not involved in the offence and did not consent to it. The impounding provisions are clearly intended to have a deterrent effect on the commission of these kinds of offences. However in the circumstances of this case, refusing to release the vehicle to Ms Hellyer does not contribute to that deterrent effect, it merely punishes an innocent party. 20 Consequently, I order that impounded vehicle, registration number MVF 574, be released into the custody of Ms Hellyer. The Tribunal also has power to determine whether or not the prescribed fees for storage of the vehicle by the Commissioner, or some of those fees, are payable by the applicant to the Commissioner (Schedule 1, Cl 6(7)). The Tribunal orders pursuant that Clause that no prescribed fees for storage of the vehicle by the Commissioner are payable by Ms Alyson Hellyer or any other person.