Jeffrey Dennis Armour v the Commissioner of Police, Canberra ACT and the Registrar of Motor Vehicles, Canberra ACT [1989] ACTSC 50 (17 October 1989)

SUPREME COURT OF THE ACT

JEFFREY DENNIS ARMOUR v. THE COMMISSIONER OF POLICE, CANBERRA
A.C.T. and THE REGISTRAR FOR MOTOR VEHICLES, CANBERRA A.C.T.
No. S.C.A. 27 of 1989
Motor Traffic (Alcohol and Drugs)

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Motor Traffic (Alcohol and Drugs) - Two offences against s.19 - Licence cancelled - Application for grant of fresh licence - No new question of principle involved

Motor Traffic (Alcohol and Drugs ) Ordinance 1977

Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362

Poricanin v Australian Consolidated Industries Ltd (1979) 2 NSWLR 419

Browne v Dunn (1893) 6 R 67

Grey v Whalen, unreported, Miles CJ, 14 August 1986

HEARING

CANBERRA
17:10:1989

Counsel for Appellant: Mr R. Refshauge
Instructed by: Messrs Macphillamy Cummins & Gibson

Counsel for Respondent: Mr Coppell
Instructed by: Australian Government Solicitor

ORDER

The appeal be dismissed.

DECISION

On 5 October 1988 Jeffrey Dennis Armour, the appellant, was charged that on 3 August 1988 he committed an offence against s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 in that he, having been the driver of a vehicle in a public place, provided a sample of breath which in the result exceeded the prescribed concentration of alcohol (.08). It was his second offence. On 26 March 1987 he had been found guilty of a similar offence but given the benefit of the provisions of s.556A of the Crimes Act 1900 of the State of New South Wales in its application to the Territory. For the second offence, occurring within a period of five years, when he had a reading of .20, he was fined $200.00 and his licence was automatically cancelled.

2. The appellant gave evidence as to the circumstances of the offences. He said as to the first that after going to the races he had had dinner at the invitation of two clients at an hotel which he left about one o'clock in the morning. Upon leaving, he went to his car which was in a car park and decided that he had probably had too much to drink to drive home safely. He decided to sleep in the car. He said that he woke up after a time to find that he was cold and turned the engine on to run the airconditioning. He then went back to sleep and was subsequently awakened by police officers and breathalysed. As a result he was charged. He pleaded guilty. He was released on his own recognizance to be of good behaviour for a period of twelve months.

3. In relation to the second offence he gave evidence that he had gone out to dinner to celebrate the successful completion of a job. He left the restaurant at about three in the morning, went to his car and again decided that he had had too much to drink. He went to sleep in the car but was again awakened by the cold. Again he decided to run the airconditioning and again he went back to sleep. He was awakened by Police who informed him that his car was on fire. Again he was breathalysed and was proceeded against by summons.

4. The second offence was dealt with on 6 December 1988.

5. On 13 March 1989 the appellant filed a Notice of Motion in the Magistrates Court seeking an order that he be granted a Class 2 driving licence.

6. The application was heard on 28 April 1989. It was dismissed.

7. The appellant, during the hearing of the application, gave evidence to the effect set out above. In addition, he said that he was advised to go to the Alcohol and Drug Foundation and, thinking that such an attendance might make him more aware of the problems that were associated with drinking, he did so attend. He said that he learnt quite a bit from the program. A certificate showing that he had attended three of three sessions of an Alcohol Education Program conducted by the Alcohol and Drug Foundation, completing it on 22 March 1989, was tendered.

8. A letter from Dr Frank Slater, a medical practitioner with a particular interest in the effects of the consumption of alcohol upon driving, was tendered. He found on examination that the appellant was in good physical and mental health, that his liver was not enlarged and biochemical tests were normal.

9. The appellant was cross-examined by Counsel appearing on behalf of the Registrar of Motor Vehicles and the Commissioner of Police to oppose the application for the restoration of his licence. The cross-examination was short and it is convenient to set it out in full.

"MS BURNS Are you aware in this counselling you
have had of what level of alcohol you can consume
to be come to the limit?---Yes, I am.
And what do you normally drink? What sort of
alcohol?---Well, it is either beer or it is wine,
depending on the occasion.
And do you know how many glasses of wine you can
have per hour to reach the limit?---Yes, three.
What positions were you in in the car in both of
those occasions?---I was in the driving
compartment - - -
You were sitting behind the - - -?---In the
drivers seat, yes.
- - - drivers seat? You got into the car
intending to sleep?---Well, I certainly did not
intend to drive. Whether I went to sleep or not
was, you know, a result of sitting down, but I
had not intended to drive because otherwise I
would have driven away. No, the intention was
not to drive the car.
So the first occasion you were behind the wheel,
and the second occasion you did not get into the
back seat to sleep, you got behind the wheel
again?---I did. That was stupid, was not it?
"Very strange. And since December 88 have you
kept a registered motor vehicle?---I still own a
car, yes.
It is registered?---It is registered, yes.
Still registered, right?---Well, the car I have
is a company car and it is registered in the
company name.
At your premises? I mean, have you driven it?---
Oh no.
No?---No, not at all."

10. It will be seen that no question was put to the appellant to challenge the veracity of the evidence he had given concerning the circumstances of each of the two offences.

11. Counsel opposing the application submitted that in the previous two years there had been two offences and that insufficient time had elapsed since the second conviction of those two offences to permit of the grant of a licence. Alternatively, she submitted that if a restricted licence, a special licence, were granted some restriction on the hours of consumption in relation to the hours of driving should be imposed.

12. The learned Magistrate dealt very briefly with the application. He said:-

"The evidence before me in this matter is rather
disconcerting, particularly the fact that the
defendant on the second occasion went to this
car, turned on the motor so that the
airconditioning could keep him warm, when less
than 18 months before he found out that that was
likely to produce a plea of guilty to exceeding
the alcohol limit of .08. I cannot accept the
evidence - I did not hear the first case, but I
cannot accept the evidence that on the second
occasion he did not intend to drive his vehicle.
"It is only eight months since the second offence
and less than 18 months prior to that the first
offence occurred. Under the circumstances, the
application is dismissed."

13. Counsel for the appellant said that the learned Magistrate denied him any opportunity to deal with the rejection of his evidence in respect of the circumstances of the second offence. As I have indicated, no challenge to that evidence was raised in cross-examination nor did the learned Magistrate indicate in any way that he was minded to disbelieve the evidence which had been given. The evidence seems to me to have been intrinsically believable. It indicates the sort of action which a man fuddled by drink might take notwithstanding the lesson which he had previously had. The fact that he was awakened by the Police who found his car on fire seems to me to lend support to the evidence which he gave. In any event, I do not think it appropriate that the learned Magistrate should have rejected the evidence given without any indication to the appellant that he disbelieved him. Had such an indication been given it might have been possible for further evidence to be called or for the appellant to give more detailed evidence than he had already done.

14. Counsel for the appellant also submitted that the sentences imposed in respect of each of the offences indicated that the learned Magistrate hearing them had in fact accepted the appellant as a witness of truth. He pointed out that the penalties imposed were unusually light. Section 26 of the Ordinance (now the Act) provides that a first offender against s.19 is liable to a fine not exceeding $1,000.00 and a previous offender (into which category the appellant came when the second offence was being considered) should be liable to a fine not exceeding $2,000.00. Additionally the Court might, under s.28, have imposed in respect of the first offence a term of imprisonment not exceeding six months and in respect of the second a term of imprisonment not exceeding 12 months. Reference day after day to penalties imposed in the Magistrates Court in respect of similar offences does indicate that the penalties imposed were unusually light.

15. A fact-finding tribunal, acting reasonably, should generally accept evidence that has been uncontradicted in cross-examination and unchallenged. (Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 p 371 per Gibbs J (as he then was). In Poricanin v Australian Consolidated Industries Ltd. (1979) 2 NSWLR 419, Hope and Glass JJA said at p 426,

"A tribunal of fact may, and indeed generally
should, have regard, in deciding what its
findings of fact should be, to the failure of a
party to cross-examine his adversary upon
evidence which the adversary has given to satisfy
the onus which lies upon him. As Browne v Dunn
(1893) 6 R. 67. shows, it may be wrong in many
cases for a party to suggest that the
other party's evidence should not be accepted, if
there has been no relevant cross-examination;
and, if a tribunal of fact rejects that evidence
in those circumstances, the result may be a wrong
finding of fact, or, to use other language, an
unreasonable cf. Precision Plastics Pty Ltd v
Demir [1975] HCA 27; (1975) 132 CLR 362, at p 371, or even a
perverse finding of fact. However, even if, in
the circumstances, a tribunal ought to accept
evidence upon which there has been no
cross-examination, its failure to do so is not a
mistake of law. A finding of fact based upon a
rejection of that evidence will be one which an
appellate tribunal having jurisdiction to deal
only with errors of law cannot touch."

16. An appeal of the kind which I am considering lies by virtue of s.11(c) of the Australian Capital Territory Supreme Court Act 1933 and is an appeal in the strict sense: Grey v Whalen, an unreported judgement of Miles CJ delivered on 14 August 1986. That case shows that I am required to decide the appeal on the evidentiary material before the Magistrate and on the law as it was then in force. If there were any identifiable error in law or fact which affected the Magistrate's decision, I have the duty to correct the error and allow the appeal. That does not mean, however, that a decision which is plainly correct is to be set aside because of one identifiable error of fact which would not and ought not to have affected the result.

17. Section 40 of the Act (Ordinance) provides, and at all relevant times provided, that on the hearing of an application by a person whose licence has been cancelled under the Act (Ordinance) that he be granted a driving licence, the Court shall have regard to:-

(i) the period during which the applicant has been
disqualified from holding a driving licence;
(ii) the conduct of the applicant (especially in
relation to the consumption of alcohol or drugs)
during that period;
(iii) the physical and mental condition of the
applicant;
(iv) any evidence of medical or other treatment
(including rehabilitation programs) undergone by
the applicant; and
(v) the effect that the making of an order for the
grant of a driving licence may have with regard
to the safety of the applicant and other persons.

18. It will be noted that the learned Magistrate made no reference to any of those criteria except, implicitly, the first. It seems unlikely that he did not give consideration to the other factors which s.40 required him to take into account. He had just received evidence of the physical and mental condition of the appellant and of a program, admittedly not formally a rehabilitation program, which the appellant had undergone and he had also heard evidence concerning the general conduct of the appellant in relation to the consumption of alcohol. I am not prepared to find that he did not have those matters in mind when he dismissed the application. It is not always necessary that a judicial officer dealing with a discretion reposed in him refer to all the matters which he is required to take into account before exercising the discretion. In the circumstances obtaining in the Magistrates Court one can readily accept that all matters would have been properly considered even though reference to them was not made by the Magistrate.

19. Reference was made to what was described as a policy that grants of licences after cancellation should not be made unless at least 12 months had elapsed since the date of cancellation. While such a policy, which finds no explicit support in the Act, may well serve as a useful rule of thumb, it seems to me that it cannot be decisive of an application for the grant of a licence after a cancellation. The question is to be decided by reference to s. 40 of the Act.

20. It is true that the offences were not the most serious of their kind but nevertheless they were serious. Had I been charged with the duty of dealing with the application at first instance, I think I would have reached the same conclusion as the learned Magistrate did.

21. I note that by s.31 of the Act a person convicted for the first time of the offence of which the appellant was twice convicted is liable to disqualification for a period of not less than three months. The appellant, fortunately for him, because of the operation of the provisions of s.556A of the Crimes Act 1900 apparently did not suffer disqualification in respect of the first offence but it seems to me to be surely the case that the minimum period of disqualification applicable in respect of a first offence of the kind may be taken into account when application is made for the grant of a licence by a person whose licence has been cancelled as a result of a second offence even though the first offence did not result in a disqualification.

22. It seems to me that the period, less than five calendar months (143 days), was too short. Taking into account all the factors referred to in s.40 of the Ordinance and the situation that obtained on 28 April 1989, I think the learned Magistrate's decision was correct.

23. The appeal is dismissed.