Plaintiff v Defendants

(a) that the prosecution has not suffered prejudice in his ability to contest the proceedings on the merits as a result of the delay which has occurred;

(b) there is a demonstrable error in the order complained of; and

(c) the special circumstances claimed are clearly special.

16 I have reached this conclusion not only because the extension sought is one of 13 years but also because it seems to me that the proceedings were not instituted expeditiously even after the facts forming the essential basis of this proceeding were known to the plaintiff and his legal advisers.

17 There is an obvious purpose of finality underlying the provisions of r.56 which must be recognised.

18 In the present case the issues of prejudice and of the strength of the plaintiff's case as to error are interrelated.

19 The plaintiff contends first, that the period of licence disqualification is so manifestly excessive that it must be inferred that no regard or proper regard was had to the possibility of the plaintiff's rehabilitation at the time the disqualification was imposed.

20 In the alternative it is put that the decision is bad for "Wednesbury[3] unreasonableness" and that it was so unreasonable no reasonable court could have made it.

21 It was submitted that the Court should approach the matter in accordance with the observations of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu[4]:

"Finally, it may be that the basis of "Wednesbury unreasonableness" is found in the proposition adopted by Brennan J in Kruger v The Commonwealth that "when a discretionary power is statutorily conferred on a repository, the power must be exercised reasonably, for the legislature is taken to intend that the discretion be so exercised". The result, as identified by the late Professor de Smith, is that "an authority failing to comply with this obligation acts unlawfully or ultra vires". Further, the decision of the authority in question may be tantamount to a refusal to exercise its discretion. If the matter be looked at in that way, then there appears more readily a footing for judicial review by way of prohibition or mandamus or injunctive relief under s 75(v) of the Constitution in an appropriate case." (Citations omitted)

22 In answer to the plaintiff's contentions, the prosecution contends first, that the current proceeding cannot be treated as a de facto appeal, secondly, that it was within the Court's power to impose a disqualification for the period of 25 years and thirdly, that neither the relevant reasons of the County Court Judge nor the material which was placed before him at the time of sentencing can now be adequately ascertained. Accordingly, the prosecution should be regarded as having suffered material prejudice by reason of the delay on the part of the plaintiff and it cannot be demonstrated that the decision of the County Court was vitiated by error.

23 It is clear that rehabilitation is a factor to which the County Court was bound to have regard. In R v Tran[5] Callaway JA (with whom Buchanan and Vincent JJA agreed) stated the relevant principles by approving a passage from the Victorian Sentencing Manual, 2nd ed.

"The topic is dealt with thus in the Victorian Sentencing Manual, 2nd ed, at [41.603]:

In determining the actual period of disqualification a sentencer should have regard to the factors specified by Crockett J in George 21/9/1989 CCA Vic:

'... the Court should have regard to two separate considerations. They are first the need for the period of cancellation itself to serve its part as a punitive element in the context of the total punishment imposed, and secondly, the need to provide protection to the public from the dangers of possible future lawless motor vehicle driving by the offender. Those two considerations have each to be given such weight as the Court considers is appropriate bearing in mind it is their combined effect which will determine the ultimate length of the disqualification.'

The period of disqualification should bear some relationship to the period of imprisonment imposed. In the same case, Crockett J continued:

'... the length of the period of disqualification necessarily had to bear a relationship to the period in custody required to be served by the offender. It was said that obviously the longer the period of custody the less would be the effective deprivation for a given period of the benefit of a driver's licence by that offender, and conversely, of course, the shorter the period of custody to be served the longer would be the degree of deprivation.'

Considerations of personal hardship are also relevant to the period of disqualification imposed. In George, Crockett J further adverted to:

'... the need to examine the degree of dependency, particularly economic dependency, of the offender on the possession of a driver's licence.'

The Court of Criminal Appeal quoted these passages with approval in Boeyen (1990) 50 A Crim R 482.

In fixing the period of disqualification the sentencer should have regard to its effect on the offender's rehabilitation and whether the period fixed would be counter-productive. In Tantrum (1989) 11 Cr App R (S) 348, Gatehouse J said at 349:

'Normally the disqualification should not inhibit too much the rehabilitation of the offender. Very long disqualifications tend to do just that and to cause further crimes to be committed.''[6]

24 If rehabilitation is a relevant factor, it might well be thought that prima facie disqualification for 25 years was excessive because it precluded the reasonable possibility of change within that time making it appropriate to license the plaintiff. This view might be thought to be materially reinforced by the provisions of s.50 of the Road Safety Act 1986 ("the Act") which would require:

(a) an application on notice to the Chief Commissioner of Police to be made to the Magistrates' Court for an order of that Court permitting the issue of a licence after the period of disqualification ended;

(b) the plaintiff to obtain an assessment report about the usage of alcohol at least 12 months before applying to the Magistrates' Court; and

(c) the plaintiff to obtain a licence restoration report from an accredited agency before applying to the Court.

(a) one of the purposes of licensing set out in s.17 of the Act is to ensure that people who are, or will become, unsuited to drive are not permitted to drive on highways;

(b) disqualification for a minimum of four years was mandatory under s.50(1B);

(c) the power to disqualify is not limited by any time period but is one enabling disqualification for such time "as the Court thinks fit".

26 In Craig v South Australia[7] the High Court stated:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record." [8] (Citations omitted)

27 In the present case the record which has been properly proved before me is limited to the "notice to certain officials of a County Court appeal decision" which formally records the Court's order.[9]

28 In my view it cannot be said the terms of the order itself demonstrate an error of law. The basis of the order is not apparent from its terms and its terms are on its face within power. Accordingly, it will only be if the plaintiff can establish from further evidence a jurisdictional error in one of the senses identified by Gummow J in Eshetu[10] that the plaintiff can succeed. I turn then to the further evidence relating to the proceeding.

29 Firstly, it can be inferred that on the balance of probabilities the plaintiff's criminal record was placed before the Court. In this regard it is apparent that there were a number of factors in the plaintiff's case which favoured a long disqualification. Both for reasons of punishment and in order to protect the public:

(a) he was a serial offender with 15 prior convictions for blood alcohol related driving offences over a period of 30 years;

(b) periods of disqualification had previously been imposed in 1968, 1971, 1974, 1975, 1976 (twice), 1978 (three times), 1982, 1985, 1986, 1988 (twice) and 1991 (twice);

(c) he had been convicted of driving whilst disqualified in 1976 (twice), 1978 (twice), 1979, 1982 (twice), 1985, 1986, 1988 (twice) and 1991 (twice);

(d) a suspension of sentences on two occasions under the former s.13 of the Alcoholic and Drug-Dependent Persons Act 1968 had had no apparent effect on his serial offending;

(e) a series of custodial sentences had no effect upon his serial offending;

(f) he was already subject to an order for disqualification for 30 years imposed in 1991 (which had not been appealed at that date).

30 The only other evidence of what was before the County Court in March 1994 comprises handwritten notes taken by the prosecutor. They record two matters which might be thought relevant:

(a) it appears that evidence was called from a community support worker on behalf of the plaintiff and that such evidence included evidence that the plaintiff was at that time suffering from deteriorating eyesight and had been certified as legally blind with 85% loss of vision;

(b) evidence from Mr Crabtree, an officer of the Australian Federal Police, was given that the plaintiff had enabled a substantial social security fraud to be uncovered.

31 Counsel's note of the County Court Judge's reasons is as follows:

"Allow appeal

2 months gaol suspended for 12 months because of Mr Crabtree's evidence

25 years LPCD."

32 Whilst this cannot be regarded as a full record of his Honour's reasons it is evidence of one matter he took into account in assessing what was an appropriate sentencing disposition.

33 Because the previously imposed sentence of imprisonment was suspended it can be seen that the result on the appeal was a substantial win with respect to the question of imprisonment. Moreover, this win was apparently achieved by reason of a factor which had nothing to do with the plaintiff's capacity as a driver.

34 When it is recalled that the first purpose of disqualification identified by the Court of Appeal in Tran[11] is that of punishment, a serious question arises as to whether the order of the Court with respect to disqualification can be severed from the order with respect to imprisonment for the purposes of the present proceedings. Further, even if it can be severed from such order it seems highly likely that the imposition of a substantial period of disqualification was in part justified as an off-set for the suspension of the gaol term. In other words the reasonableness of the disqualification turns in part on the totality of the Judge's orders.

35 In the absence of evidence as to the basis on which the plea was put to his Honour and in the absence of further details of his Honour's reasons, it is not possible to exclude the possibility that his Honour in fact responded directly to the way in which the plea was put to him by imposing a very lengthy period of disqualification.

36 Further, it cannot easily be concluded that his Honour failed to take due account of the possibility of rehabilitation, if the evidence before him included the circumstance that the plaintiff was 85% blind and there was no evidence that this position might change.

37 It follows that in my view:

(a) The prosecution is prejudiced by the delay that has occurred. The informant cannot now be located and records relating to the proceeding are minimal. The prosecution has been placed in a position where evidence cannot now be adduced that might assist its case both with respect to the point of substance in issue and with respect to matters affecting this Court's discretion to grant prerogative relief. In particular the prosecution is prejudiced in its capacity to adduce satisfactory evidence of the matters before the Court at the time of sentence and in its capacity to adduce evidence of his Honour's reasons.

(b) Further, it cannot now be demonstrated that the County Court's decision was attended by an error of law let alone a jurisdictional error.

38 For the sake of completeness I shall mention one last matter. The extract of convictions before the Court shows the plaintiff was convicted of driving whilst disqualified on 30 May 2003. On this occasion (consistently with the evidence as to his overcoming alcoholism) he was not convicted of a drink driving offence. Nevertheless, this conviction demonstrates on its face contempt for the road traffic laws and for the order which he now seeks to have set aside. No explanation for the offence has been proffered to this Court. This conviction changes the case from one of rehabilitation coupled with a dramatic change from a prior pattern of continuing criminal behaviour, to one of no more than rehabilitation with respect to the plaintiff's underlying condition accompanied by a further breach of the road traffic laws. On one view this materially detracts from the case as to special circumstances even if that concept is given a broad and flexible interpretation, but given the conclusions I have already expressed it is unnecessary to decide whether this factor would in itself be fatal to the plaintiff's application.

39 For the above reasons the plaintiff's application must fail.

[1] See Flynn v DPP [1998] 1 VR 322 at 333-340

[2] See Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 per Hansen AJA (with whom Chernov and Nettle JJA agreed) at [57] and [68]-[72]

[3] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 at 224

[4] (1999) 197 CLR 611 at 650 [126]

[5] [2002] VSCA 52; (2002) 4 VR 457 at 469 [39]

[6] See also R. v. Lefebure [2000] VSCA 79; (2000) 112 A Crim R 41 at [7]- [8].

[7] [1995] HCA 58; (1994) 184 CLR 163

[8] Ibid at 175-176. In Re McBain; ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 Hayne J after referring to the above passage said: "This description of when the writ of certiorari will be available is a description apt to the supervisory role of a State Supreme Court."

[9] Cf. the facts in Flaherty v DPP [2003] VSC 234 where recourse could be had to the Judge's reasons in accordance with s.10 of the Administrative Law Act 1978

[10] Above.

[11] Above.