Criminal law and procedure - Right to be heard - Need for opportunity to be given to present case - Denial of natural justice - Application for extraordinary licence dismissed without hearing applicant

Road Traffic Act 1974, s 76

Order dismissing the application be set aside and the matter remitted for hearing before a different Magistrate

1 MILLER J: On 29 August 2000 the appellant appeared before Mr K Moore SM in the Court of Petty Sessions at Perth on an application for an extraordinary motor driver's licence. Such an application is made pursuant to the provisions of s 76 of the Road Traffic Act 1974. A person disqualified from holding or obtaining a driver's licence is entitled to apply to the court for an order directing the Director General to issue an extraordinary licence to him. Section 76(3) provides that the court may, if it thinks proper, have regard to a number of criteria in determining whether or not an order should be made. They include the safety of the public generally; the character of the applicant; the circumstances of the case; the nature of the offence or offences giving rise to the disqualification; the conduct of the applicant subsequent to the disqualification; and the degree of hardship and inconvenience which would otherwise result to the applicant and his family if the court refrained from making the order. In the event that an extraordinary licence is granted, conditions may be imposed upon it: s 76(5).

2 When the appellant came before the Court of Petty Sessions he was unrepresented. He gave sworn evidence in support of his application in which he indicated that he was born 23 December 1962, lived in Lesmurdie and was presently unemployed. He told the court that he had lost his licence for life on 11 September 1987 and his application apparently sought an "A" and "K" class licence to enable him to drive to and from work.

3 The learned Magistrate asked the appellant why he required an extraordinary licence if he was not working. In response to this the appellant said that he had a job and had letters to prove it. The prosecutor then rose to state that the application was opposed "any how considering his record". The following observations were then made by the learned Magistrate:

"HIS WORSHIP: He has a record. One suspension and refusing a breath test; dangerous driving; driving under the influence; dangerous driving; driving under the influence; contravening an extraordinary driver's licence; no driver's licence, suspension; driving under the influence; no driver's licence, under suspension; no driver's licence, under suspension; no driver's licence, under suspension; false name and address; disqualification, varied extra --- no driver's licence, under suspension.

Failing to give way; no driver's licence, under suspension; no driver's licence, under suspension; disqualification, varied again; disqualification - varied - no driver's licence, under suspension; no driver's licence, contravening an extraordinary driver's licence, cancelled. 97, stealing a motor vehicle; driving with forged or fraudulently altered number plates. I'm sorry, Mr Dangerfield, the answer to your application is under no circumstances -- ? -- Sir, can I say a few things first.

Sorry? --- Can I say a few things before you make your decision final?

I don't want to hear about it, not with a record of that kind? --- Well, I haven't drank alcohol for over 10 years. I think the last two suspensions were just when I forgot to renew my extraordinary licence.

Yes. Well, look at your record, man? --- I know it's disgusting but I'm a changed ---

It's shocking. It's one of the worst records I've seen? --- I'm a changed man now, your Worship, totally.

Disqualification, varied and you keep contravening --- ? --- I'm actually trying ---

--- contravening an extraordinary driver's licence there in 97; stealing a motor vehicle in 99? --- That was --- I bought that motor vehicle though, your Worship.

I'm sorry, Mr Dangerfield, but I've said it. It is regretful that you haven't got a driver's licence but you've got nobody to blame but you for that. Not granted? --- I've had two extraordinaries and I haven't done nothing since then, your Worship, so, I don't understand it at all.

And you contravened? --- Yeah, that was just that I forgot to renew, your Worship, that's all."

4 It will be seen that the appellant's application for an extraordinary licence never really got off the ground. It was summarily dismissed by the learned Magistrate without the appellant being able to state his case. The dismissal was based solely upon the bad traffic record of the appellant.

5 On 21 September I granted the appellant leave to appeal from the decision of the learned Magistrate. As the appellant was unrepresented I reformulated for him his grounds of appeal so that they read:

"a) The Learned Magistrate erred in law in failing to allow the Applicant an opportunity to properly present his application for an extra-ordinary license.

b) The Learned Magistrate determined the matter on a record of convictions of the Applicant without more.

c) The Applicant was denied the opportunity to consider the record of convictions as used by the Learned Magistrate.

d) There was a denial of natural justice to the Applicant in that no hearing on the merits of the application took place."

6 When the appeal came on for hearing the Crown conceded that the appeal should be allowed. By letter to the appellant dated 27 October the Crown Solicitor had advised:

"This office has received instructions to concede that the learned Magistrate should have allowed you to present your application for an extraordinary motor drivers licence, and that your appeal should succeed.

Please note that the Respondent continues to oppose your application for an extraordinary drivers licence, and considers it appropriate for your application to be remitted to the Court of Petty Sessions for hearing."

7 In my view the concession of the Crown was entirely correct. The proceedings before the learned Magistrate were in breach of the principles of natural justice. It is beyond doubt that when a person has a right to a hearing in a court of law he must be given a fair opportunity to present his case. In this case the applicant was denied that opportunity. Any attempts that he made to explain his changed behaviour since his disqualification for life were summarily overruled. Further, he was given no opportunity to state whether or not the record of convictions was accepted by him. In short, no hearing on the merits took place at all. The common law requirements of procedural fairness were entirely ignored.

8 For these reasons I ordered at the hearing of the appeal:

(2) The order dismissing the application for extraordinary licence number M15608 of 2000 be set aside.

(3) The matter be remitted for rehearing before a different Magistrate to be determined according to law.