Solicitors for applicant: Director of Public Prosecutions

Solicitors for respondent: Curtis Abetz and Docking

UNDERWOOD J The respondent was convicted of a breach of the Road Safety (Alcohol and Drugs) Act 1970, s6(1). She was fined $350 with costs and disqualified from obtaining or holding a driver's licence for five months. The applicant seeks a review of that order upon the grounds that:

1 The learned magistrate erred in fact and/or in law in

finding that special circumstances existed in the case of

the respondent within the meaning of the Road Safety

(Alcohol and Drugs) Act 1970, s17(5).

2 The learned magistrate erred in deciding to exercise his

discretion and not apply the statutory minimum penalties.

2. The respondent was previously convicted of a breach of s6(1) on 14 April 1989. Consequently, the conviction which gave rise to the order impugned is a subsequent conviction within the meaning of the Act, s17(1)(b). The provisions of s19(1A)(a) prevented the respondent from applying for an order authorising the grant of a restricted licence. The respondent's blood alcohol concentration was 0.117 grams of alcohol in 100 millilitres of blood. Accordingly, subs(3) required the learned magistrate, (subject to subs(5)) to impose a minimum penalty of eight penalty units and licence disqualification for twelve months. Section 17(5) provides:

"Notwithstanding sub-section (3), if a person who is

convicted of an offence referred to in Column 1 of the Table

satisfies the Court which convicted the person that there

are special circumstances why the minimum fine specified in

the Table or the minimum period of disqualification

specified in the Table should not be imposed, the Court may

impose a lesser fine or a lesser period of

disqualification."

3. The learned magistrate found that there were special circumstances, exercised his discretion in favour of the respondent and imposed a fine and period of licence disqualification less than the prescribed minimum for a subsequent offence.

4. Section 17(5) involves finding facts and exercising a discretion. A finding of fact that there are special circumstances why the minimum fine should not be imposed will not necessarily result in the imposition of a fine and period of licence disqualification less than the prescribed minimum. See Johnston v Davies, Crawford J 75/1992 at 5.

5. Although the first ground of the motion to review alleges error of law as well as error of fact, properly construed, it is confined to a complaint that there was an error of fact. The second ground of the motion alleges error of law in the exercise of the discretion. Insofar as the motion seeks to review the finding of fact that there are special circumstances why the minimum fine should not be imposed, this Court will only set it aside if there was no evidence upon which a magistrate, acting reasonably, could make that finding. See Richardson v Shipp (1970) Tas SR 105 at 117-118; Davidson v Registrar of Motor Vehicles, Cox J 3/1989; Taylor v Armour and Co Pty Ltd [1962] VicRp 48; (1962) VR 346 at 351. Insofar as the motion seeks to review the exercise of the learned magistrate's discretion, it falls to be determined in accordance with the principles generally applicable to the review of an exercise of judicial discretion. The principles are well known and need no repetition here. See Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 at 519-520; R v Tait and Anor (1976) 46 FLR 386 at 397-398; Harris v R [1954] HCA 51; (1954) 90 CLR 652.

6. As to the meaning of "special circumstances" I agree with Crawford J in Gela v Cochrane 26/1992 and Johnston v Davies (supra) that they cannot be exhaustively enumerated. A useful expression is that used by Napier J (as he then was) in Gassner v Frost (1940) SASR 295 at 298 namely, something "clearly distinguishable from the general run of the cases that Parliament had in mind when it provided for the penalty of disqualification". See also Baskerville v Martin (1967) SASR 156; Dellar v Crawford, Zeeman J 55/1992. Any one circumstance or a combination of a number of circumstances might be sufficient to constitute special circumstances under the subsection provided it or they have the effect of clearly distinguishing the case at hand from the general run of cases that Parliament had in mind when it provided for the imposition of minimum penalties. Clearly, Parliament must have had in mind the defendant who drove in the belief that his/her blood alcohol concentration was less than the prescribed maximum and the defendant who would suffer economic hardship upon licence disqualification. Those circumstances are common to a large number of drink driving offences. Speaking generally, neither would ordinarily constitute sufficiently special circumstances to take a case out of the general run of cases that Parliament had in mind.

7. The learned magistrate was told by the prosecutor that at about 10.10 pm on Thursday 4 June 1992, police on mobile patrol stopped a red Alfa sedan being driven by the respondent. A random breath test proved positive and subsequent breath analysis determined a blood alcohol concentration of .117 per cent. The respondent did not ask for a blood test. She told the breath analysis operator that she had consumed three glasses of wine, the first about 6.45 pm and the last about 9.30 pm. Counsel for the respondent then addressed the learned magistrate in mitigation. In very broad terms, he told the learned magistrate that the respondent had consumed only 2 and a half glasses of wine with a meal and that the high blood alcohol percentage may have been due to some unusual medical condition. In addition, he addressed at some length to the effect that the loss of a licence would visit financial hardship upon both the respondent and her husband. At the conclusion of counsel's submissions the learned magistrate expressed the view, very properly in my respectful opinion, that if special circumstances within the meaning of s17(5) are relied upon, "there ought to be specific evidence about each of the constituent matters ... that result in special circumstances ... because the prosecution is entitled as a matter of fairness and common sense ... to test it." After an adjournment, the respondent and her husband gave evidence and were cross-examined. According to that evidence, the respondent was a married woman with a 2 and a half year old child. She and her husband lived at Seven Mile Beach. The respondent worked as a tutor with the Style Modelling Academy, conducting evening classes and doing some day work in various High Schools in the southern part of Tasmania. She conducted evening classes each Tuesday and Thursday which occupied her between about 5.30 pm and 8.30 pm. One of those classes was conducted at a hairdressing salon in Sandy Bay and the other was in the city. In addition, the respondent worked at weekends as a television weather presenter.

8. The respondent's husband was a graphic designer and conducted his own agency doing advertising and promotional work. Until not long before the commission of the offence, the respondent's husband was working "in a freelance capacity with an advertising agency" but, as business was not good, he decided to set up on his own account close to the city. The idea was that the respondent would work in the business for about two or three hours each day doing the work that the advertising agency used to do for the respondent's husband, such as copywriting, media placement and generally attending to the needs of the clients. The respondent also provided her husband's business with secretarial and book keeping services. No other staff were employed in the business. When at work during the day, the respondent left her child in a child care centre at Rosny. Obviously, all this work required continual and extensive use of a car.

9. The respondent earned approximately $300 per week from her employment with the Style Modelling Academy and $100 per week from her television work. She received no income from her husband's business. She detailed the family expenses which totalled approximately $650 per week. The house at Seven Mile Beach, recently purchased after the sale of a Sandy Bay home, was incomplete and its immediate sale likely to result in financial loss.

10. The respondent's husband said that his business was just beginning to "break ground a bit" and he estimated its weekly profit to be in the order of $500 gross. He told the learned magistrate that it would not be feasible for him to employ somebody to do the work done by the respondent.

11. With respect to the circumstances surrounding the commission of the offence and the amount of alcohol consumed, the only evidence was that given by the respondent. She explained that on the evening in question, her husband telephoned her and asked her to come and collect him from a friend's home. On arrival, the respondent joined those present in a meal. She drank 2 and a half glasses of wine. The glass was estimated to hold between four and six ounces of liquid. The respondent said she was "stunned" by the reading and gave some brief details of a previous serious illness, and some hearsay evidence to the effect that the medical practitioners whom she had consulted were unable to offer any explanation for the apparent discrepancy between the concentration determined by analysis and the amount of wine the respondent said she had consumed. In his final address, counsel for the respondent told the learned magistrate that he had spoken to specialists about this matter and obtained a liver function test. The GGT level on the liver function test was normal, but at the lower end of the normal range.

12. The learned magistrate found the respondent to be a witness of credit and made findings of fact substantially in accordance with the evidence I have set out. With respect to the amount of alcohol consumed he said:

"I saw and heard Mrs Kennedy in court and in the witness box

over a total period of some two hours. She was a credible

and persuasive witness and I find no difficulty in accepting

her evidence. Especially, I believe her account of drinking

only 2 and a half glasses of wine. The fact that such

little quantity produced the reading with which we are here

concerned excites a strong impression in my mind that it is

itself a special and extraordinary circumstance, probably as

a consequence of the defendant's long staphylococcal

infection following the birth of her 2 and a half year old

son, but I am unable to make a finding of fact thereon

because counsel frankly told me that he's been unable to

produce any evidence from medicos qualified to opine on such

matters to that effect."

13. There is no appeal against the finding of fact that the amount of alcohol consumed was only 2 and a half glasses of wine. However, a fair reading of the foregoing extract from the learned magistrate's reasons and the passage set out at pages 4 and 5 of these reasons, leads to the conclusion that he did not find the small quantity of alcohol consumed to be a special circumstance.

14. With respect to the necessity to take sworn evidence in cases where a defendant seeks to activate the discretion given by s17(5), the recent case of the DPP v O'Connor and Ors (1992) 95 Cr App R 135 is instructive. The judgment of the Court of Appeal related to five appeals by way of case stated and one application for judicial review. All matters concerned offences involving the consumption of alcohol contrary to the Road Traffic Act 1988 (UK). Curiously, all cases concerned drivers whose drinks had been laced either by members of their family or friends. Relevantly for present purposes, the Road Traffic Offenders Act 1988 (UK), s34(1) provided:

"Where a person is convicted of an offence involving

obligatory disqualification, the Court must order him to be

disqualified for such period not less than twelve months as

the Court thinks fit unless the Court for special reasons

thinks fit to order him to be disqualified for a lesser

period or not to order him to be disqualified."

15. Lord Justice Woolf (with whose reasons the other member of the court agreed) expressed some general views with respect to an application for an order of disqualification less than the obligatory twelve months. His Lordship held that the onus of establishing special reasons is on the defendant and that the standard of proof is on the balance of probabilities. That is in accordance with accepted principle. His Lordship said that English authorities now established that a defendant is required to show by admissible and relevant evidence, in cases such as the ones then under consideration, that his drink had been laced, that he did not know or suspect that it had been laced and if he had not taken the laced drink the level of alcohol in the body would not have exceeded the prescribed limit. His Lordship said that expert evidence is usually required to indicate whether or not the amount of drink which the defendant admits he has knowingly consumed is sufficient to result in the alcohol level being above the prescribed minimum and further, expert evidence is useful to indicate whether or not the defendant's account is credible. In addition, his Lordship indicated that it is good practice in cases where special reasons are advanced, for sufficient notice of the intention to make the application to be given to the prosecution to enable the prosecution to be prepared to deal with it.

16. Those practices do not have the force of law in this State, but in my view, they are appropriate in cases where an application is made to invoke the discretion given magistrates by s17(5). Such applications will ordinarily require sworn evidence to be given and, in appropriate cases, expert testimony to render the defendant's sworn evidence sufficiently credible. Claims that the amount of alcohol actually consumed would not ordinarily result in a blood alcohol concentration in excess of the prescribed minimum, are commonly made. Miscalculation of the amount of alcohol consumed or its concentration in the blood attend the vast majority of detected breaches of the Road Safety (Alcohol and Drugs) Act. Ordinarily, such matters would not constitute special circumstances for they are far from special. There may be cases in which a defendant claims that he/she consumed so little alcohol that the concentration determined by analysis is inexplicable and that this is a special circumstance either alone or together with other matters. In such cases, the evidentiary burden on the defendant is heavy. The Road Safety (Alcohol and Drugs) Act, s23(2) deems the actual concentration to be the concentration determined by analysis unless it is shown on the balance of probabilities that the actual concentration was not greater than the prescribed concentration. In cases of apparent inconsistency between the amount of alcohol claimed to have been consumed and the concentration of alcohol in the blood determined by analysis, it is difficult to see how a tribunal of fact could be persuaded to the requisite degree that the claim is made out without receiving relevant and cogent expert opinion evidence to explain the inconsistency.

17. With respect to special circumstances within the meaning of s17(5) the learned magistrate said:

"I am affirmatively satisfied that the severity with which a

fine of $800 and a disqualification for twelve months will

constitute special circumstances why those ordinarily

applicable minimum levels of fine and disqualification

should not be imposed (sic). Whilst disqualified, I find

that Mrs Kennedy will not be able to continue her employment

with Style Academy entailing a loss over a period of one

year's disqualification of over $15,000. She will not be

able either to assist her husband's fledgling business.

Without her services it may well fail. These extraordinary

hardships in my opinion constitute special circumstances and

I find that they do and will."

18. The learned magistrate then referred to the relevant authorities on the question of special circumstances and concluded his reasons:

"Such consequences involved in the imposition of minimum

levels of penalty if mindfully to be visited upon the

defendant, don't have a family (sic) would in my opinion be

shocking in their savagery. They would in many degrees

exceed what could reasonably be required or expected in

order to inflict a proper penalty and they would be out of

line of the defendant's true culpability which would offend

a basic principle of justice."

19. The above might well represent a cogent argument against the enactment of legislation that provides for the imposition of minimum penalties in all except the most unusual cases. However, the facts found by the learned magistrate to be special circumstances are not special circumstances within the meaning of s17(5). No doubt Parliament had in mind that in many cases, licence disqualification would result in job loss and financial hardship for both the offender and his/her family. No doubt Parliament also contemplated that, in many cases, the offenders would be the sole income earners in the family unit. Financial hardship such as that found by the learned magistrate in this case was not so far out of the ordinary, that it was outside the contemplation of Parliament when it enacted s17(5) and therefore capable of falling within the description "special circumstances". The evidence was to the effect that the respondent would be able to retain her employment at the television station. There was no evidence that alternative employment, not requiring a current driver's licence, was unavailable to the respondent. Alternative employment was not explored at all. Similarly, with respect to the respondent's husband's business, the evidence concentrated on the inability to find a replacement for the respondent. There was no evidence about the possibility of him returning to the advertising agency which did the work the respondent was doing before he set up on his own account. In all these circumstances, I conclude that no magistrate, properly instructed as to the law and acting reasonably, could have found that there were "special circumstances" why the minimum penalties should not be imposed.

20. Ground 1 of the motion to review is made out. It follows that ground 2 of the motion to review is also made out. The motion is allowed and the orders of the learned magistrate are quashed.

21. I will hear counsel with respect to the final disposition of this appeal.