Todd v Commissioner of the Police Services
[2005] QDC 252
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Todd v Commissioner of the Police Services[2005] QDC 252
Todd v Commissioner of the Police Services[2005] QDC 252
[2005] QDC 252
DISTRICT COURT
APPELLATE JURISDICTION
JUDGE ROBIN QC
No 1168 of 2005
JACQUELINE ANN TODD | Appellant |
and |
|
COMMISSIONER OF THE POLICE SERVICES | Respondent |
BRISBANE
DATE 15/08/2005
ORDER
Catchwords: | Transport Operations (Road Use Management) Act 1995, s 80(5A), 587(5)(a) - appeal from Magistrate's refusal of a restricted licence (on ground appellant failed to show she was a "fit and proper person" to hold one) allowed - wrong approach in the circumstances to determine that the events underlying the charges dealt with precluded the appellant from establishing fitness - appellant not awarded costs. |
HIS HONOUR: The appellant is a mature woman with four children to look after and a qualified pharmacist who works on a regular basis at three different pharmacies in Brisbane. She was convicted on the 16th of March 2005 of four offences: one of failing to provide a sample at Cleveland Police Station; two of obstructing police; one of contravening a requirement.
The last mentioned relates to refusal to give her name which, according to the appellant, the police already knew; she plainly had correct legal advice by the time the matter came before the Magistrate.
What is contentious is the Magistrate's failure to grant the appellant the indulgence of a restricted licence that she could use for work purposes. There does not seem to be any dispute regarding the importance of such a licence to the appellant.
Both the Magistrate and the Police Prosecutor expressed some surprise at a change in the law of the State whereby a person convicted of an offence under section 80 subsection (5A) of the Transport Operations (Road Use Management) Act 1995 was permitted to apply for a restricted licence. Formerly, that was not the case, an offender for obvious policy reasons being treated as if he or she had a high blood alcohol concentration at the relevant time.
There are other circumstances in which an offender is unable to apply for a restricted licence, best known of which concern dangerous driving.
The appellant was not charged with that but it is part of the respondent's case that there is unacceptable danger to the general road-using public from the appellant's being let loose on the open road. Section 87 subsection (5)(a) of the Act precludes the granting of a restricted licence unless the person applying satisfies the Court hearing the application that:
- (i)The applicant is a fit and proper person to hold a restricted licence having regard to the safety of other road users and the public generally;
- (ii)A refusal would cause extreme hardship to the applicant or the applicant's family by depriving the applicant of the applicant's means of earning the applicant's livelihood.
There is no issue raised by the respondent to do with hardship. The Magistrate ruled that the applicant had failed to show she was a fit and proper person.
Her only previous trouble with the legal system before the evening when the present offences happened relates to a couple of speeding convictions. The presumption (it seems to me) would be that the appellant as a mature woman with limited traffic history, a mother of four children and a professional person in a responsible occupation was a fit and proper person. The only concerns one would have would relate to how safe other road-users were if she were driving.
Mr Thornburgh has catalogued the unimpressive aspects of the appellant's performance on the evening in question which occurred over a couple of hours. She had been drinking at a hotel not terribly far from her residence. Police were called by a security person there who (doubtless with a view to protecting the appellant herself) called the police who approached her in the car park where she was sitting on the kerb urging her not to drive.
She was offered transport home by the police; she declined. She refused to give police her name. She refused to give a breath specimen then and there and indeed, faced a charge for that at one point, which was not pursued.
She got into her vehicle and accelerated off creating some danger to police who were close to the vehicle with equipment for the test they were intent on administering to her.
The police then had to follow her as she drove home contrary to their sound advice to her. When she came to a stop, she refused the request from the police to go to the Cleveland Police Station. She had to be manhandled by police to be got into a police vehicle.
Once at the police station, she again refused to give a specimen; this time, it was the subject of a charge. Her attitude of determined non-cooperation continued when she refused to sign a certificate to the effect that she had failed to provide a specimen.
That is all unimpressive from any point of view but Mr Lewis's point is that it is all isolated to one particular evening which one would assume and hope was out of character for the appellant.
I have been referred to Judge McGuire's decision in Winston v. Boyce, 139 of 1986, 19th of December, 1986 where his Honour refused to change the decision of a Magistrate to refuse an application for a restricted licence. The appellant there had no history. What impressed the Magistrate and the Judge was his "attitude of non-compliance", as it was called, in respect of his failure to provide a specimen of blood for testing. The attitude was, indeed, called "defiant" as well.
It seems to me that the changes in the law which I have noted make that decision distinguishable. While I do not say that the events of a restricted period such as two hours could never demonstrate that a person was not fit and proper to be admitted to the privilege of having a driver's licence - which is a privilege not a right - I think it is a fallacious method of approaching the question here. This is one of the few instances in recent years in my experience where the law has been ameliorated rather than toughened from the point of view of offenders. The Parliament has made a deliberate decision that offenders against section 80 subsection (5A) may make application for a restricted licence.
I think the Magistrate here erred, perhaps influenced by surprise that the application was even open, in attaching decisive weight to the events of a confined period on a single evening. Those, in my opinion, in the present circumstances, do not preclude the appellant from showing she is a fit and proper person.
We all know the importance of having access to personal transport by private motor vehicle in prevailing conditions.
The privilege of holding a driver's licence is widely conferred. The issue, it seems to me, comes down to one of the safety of the public. It apparently was not considered that she was driving dangerously on the night in question when it was only a few hundred metres that she needed (from her own distorted perspective) to drive.
I would allow the appeal.
...
HIS HONOUR: The appellant should have a restricted licence under section 87 of the Act to permit driving to and from her work as a pharmacist by the most direct route while in any required work uniform during the hour before and the hour after her rostered shifts.
...
HIS HONOUR: All I have held is that the Magistrate erred in refusing an indulgence sought by the appellant. I would not want to be too critical. I am not going to make an order about costs.