Russo -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 40

CITATION: Russo -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 40 DIVISION: General Division APPLICANT Lisa Marie Russo PARTIES: RESPONDENT Commissioner of Police, New South Wales Police Service FILE NUMBER: 003097 HEARING DATES: 07/04/2000 SUBMISSIONS CLOSED: 04/07/2000 DATE OF DECISION: 04/07/2000

BEFORE: Hennessy N (Deputy President) APPLICATION: Impounded vehicle - Road Transport (General) Act - Impounded vehicle MATTER FOR DECISION: principal matter LEGISLATION CITED : Road Transport (General) Act 1999 CASES CITED: APPLICANT REPRESENTATION: In person RESPONDENT J Tunks, prosecutor ORDERS: 1. The Tribunal orders pursuant to Cl 6(1) of Schedule 1 of the Road Transport (General) Act 1999 that impounded vehicle, registration number AFD 17S be released into the custody of Ms Lisa Russo.; 2. The Tribunal also orders pursuant to Cl 6(7) that no prescribed fees for storage or towing of the vehicle by the Commissioner are payable by Ms Lisa Russo or any other person.

REASONS FOR DECISION Background 1 This is the first application which has been heard by the Tribunal in relation to the impounding of vehicles. Ms Russo's vehicle was impounded by a police officer on 30 March 2000 after her 18 year old son was issued with an infringement notice for what is colloquially known as a "burn out" offence. This is an offence under s 41(1) of the Road Transport (Safety and Traffic Management) Act 1999. That provision states that: A person must not, on a road related area, operate a motor vehicle in such a manner as to cause the vehicle to undergo sustained loss of traction by one or more of the driving wheels (or, in the case of a motor cycle, the driving wheel) of the vehicle. 2 Ms Russo is applying to the Tribunal for the return of her motor vehicle. Jurisdiction 3 The exact nature and extent of the Tribunal's jurisdiction in relation to impounded vehicles must be ascertained from the relevant legislation. Since this is the first case of its kind, the Tribunal needs to satisfy itself of the precise source and nature of its jurisdiction. 4 Section 37 of the Administrative Decisions Tribunal Act 1997(ADT Act) gives the Tribunal jurisdiction under an enactment "to act as the primary decision-maker if the enactment provides that application may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment." 5 Clause 6 of Schedule 1 to the Road Transport (General) Act 1999 (the Road Transport Act) is the source of the Tribunal's jurisdiction in relation to vehicles which have been impounded. That Clause states that: A person may apply to the Administrative Decisions Tribunal for an order for the release of an impounded vehicle into the person's custody. 6 Unlike s 48 of Road Transport Act which gives the Tribunal power to review certain decisions made by a police officer or the Commissioner of Police, Clause 6 of Schedule 1 gives the Tribunal original jurisdiction to make an order for the release of an impounded vehicle. 7 Section 39(6) of the Road Transport Act states that "Schedule 1 has effect with respect to a motor vehicle impounded under this section." Section 40(7) states that "Schedule 1 has effect with respect to a motor vehicle impounded or forfeited under this section." These provision are necessary because the source of the Tribunal's power is set out in a Schedule rather than in the Act itself. 8 Consequently, the Tribunal has power to make an original decision in relation to the release of a vehicle which has been impounded under s 39 or s 40 of the Road Transport Act. 9 In this case the vehicle, if it has been impounded, has been impounded under s 39. Under section 40, vehicles can only be impounded after the offence is found to be proven before any court or when the amount in the penalty notice has been paid. It is common ground that neither of these events has taken place in relation to the offence allegedly committed by Ms Russo's son. Section 40 states that: (1) A motor vehicle used in connection with an offence under section 40 or 41of the Road Transport (Safety and Traffic Management) Act 1999, being in either case the first offence by the offender under the provision concerned, that is found to be proven before any court is by the finding liable to be impounded for a period of 3 months, unless the court by order otherwise directs under subsection (3). (2) A motor vehicle used in connection with an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999, being in either case a second or subsequent offence by the offender under the provision concerned, that is found to be proven before any court is by the finding liable to be forfeited to the Crown, unless the court by order otherwise directs under subsection (3). (3) The court before which an offence under section 40 or 41 of the Road Transport (Safety and Traffic Management) Act 1999 is found to be proven may, for reasons of the avoidance of any undue hardship to any person or other injustice perceived by the court, by its order direct that a period of impounding imposed by this section be reduced or dispensed with, or that a forfeiture imposed by this section be commuted to a period of impounding. (4) The period for which a vehicle was impounded under section 39 is to be reckoned as counting towards a period of impounding imposed by or under this section. (5) Any impounding or forfeiture under this section is in addition to any other penalty that may be imposed for the offence concerned, but for the purposes of any rights of appeal against a penalty so imposed by the court finding the offence to be proven, the impounding or forfeiture is taken to be, or to be part of, that penalty. (6) For the purposes of this section, payment of the amount specified:

(a) in a penalty notice issued in respect of an offence under section 41 of the Road Transport (Safety and Traffic Management) Act 1999, or (b) in any process issued subsequent to such a penalty notice, as the amount that is payable in order to dispose of the alleged offence without having it dealt with by a court, has the same effect as a finding by a court that the offence was proven.

(7) Schedule 1 has effect with respect to a motor vehicle impounded or forfeited under this section. 10 Consequently, the Tribunal must determine whether the vehicle has been impounded under 39 of the Road Transport Act: Section 39(1)(a) states that:

A police officer who reasonably believes that a motor vehicle:

(a) is being or has (on that day or during the past 10 days) been operated on a road or road related area so as to commit an offence under s 40 or s 41 of the Road Transport (Safety and Traffic Management) Act 1999 may seize and take charge of the motor vehicle and cause it to be removed to a place determined by the Commissioner of Police. 11 There is no dispute that the vehicle in question was seized, or confiscated, by the police officer concerned. Section 39(4) provides for the impounding of vehicles so seized. It states that: Any motor vehicle removed to a place in accordance with subsection (1) may, subject to the regulations, be impounded at that place or may be moved to and impounded at any other place determined by the Commissioner of Police. 12 Although there was no direct evidence that the vehicle had been impounded pursuant to s 39(4), it is common ground that the police refused to return the vehicle to Ms Russo when she made a formal request that they do so. In these circumstances I am satisfied that the vehicle has been impounded under s 39(4). 13 Having satisfied myself that the Tribunal has jurisdiction to deal with this matter, I will go on to determine whether an order for release of the vehicle should be made. Factors to be taken into account in determining whether to release an impounded vehicle 14 Under Clause 3 of Schedule 1 "The Commissioner is to retain a vehicle impounded under section 39 until such time as the offence for which it was impounded is dealt with by a court or by the offender under Division 1 of Part 3 of this Act, unless it is sooner released under clause 5 or 6 or in accordance with the regulations." 15 In the normal course of events, the Commissioner would retain a vehicle such as that owned by Ms Russo until the matter was dealt with by a court or the fine paid. As mentioned above, neither of these events has yet occurred. Ms Russo has applied to the Commissioner under Clause 5 of Schedule 1 for the release of her vehicle, but that application has been refused. I will consider the circumstances of that refusal in more detail below. 16 The Tribunal is not limited to the circumstances that the Commissioner can consider under Clause 5. Under Clause 4 of Schedule 1: The Tribunal is not limited by the provisions of clause 5 (relating to release of the vehicle on application to the Commissioner) and is entitled in any case to have regard not only to the public interest but to any alleged hardship or other circumstances of the case.(Words in brackets added.) 17 In this case, the public interest consideration in favour of not releasing the vehicle are that it reduces the risk that any further offence will be committed. It also acts as an added penalty for the commission of the offence. The alleged hardship and other circumstances are that Ms Russo is unable to use her vehicle to commute to and from the train station, or to do her shopping or take her other children to various activities. Ms Russo gave evidence that she has banned her son from using the car and that he rides his push bike to work. 18 Given that Ms Russo was not involved in this offence in any way and that it is her vehicle that has been impounded, I am satisfied that the public interest considerations do not override the hardship that she is experiencing by not having access to her vehicle. I have also taken into account the fact that Ms Russo has forbidden her son from driving her car in the future. 19 Consequently, I order that impounded vehicle, registration number AFD 17S, be released into the custody of Ms Lisa Russo. The Tribunal also has power to determine whether or not the prescribed fees for storage of the vehicle by the Commissioner, or some of those fees, are payable by the applicant to the Commissioner (Schedule 1, Cl 6(7)). Mr Tunks, representing the Commissioner, had no objection to the Tribunal ordering that any such fee not be payable by the applicant. He also consented to an order that Ms Russo not be liable for any towing fees. 20 These orders do not preclude a decision being made under s 40 to impound or forfeit the vehicle under that section at some time in the future. However, the Tribunal would have jurisdiction to order the release of an impounded vehicle or stay any order or direction for forfeiture of the vehicle (Schedule 1 Clause 2). Conduct of the police in relation to this matter 21 Ms Russo gave evidence that she applied to have her vehicle released and that she was told verbally by Inspector Pateman that she would not be getting the vehicle back. No reasons were given for this decision. Under Clause 5 of Schedule 1, the Commissioner can make a determination as to whether to release a vehicle. Although it appears that such a determination was made in this case, no reasons were given either verbally or in writing. The principles of procedural fairness and sound decision making suggest that it would be desirable for the Commissioner's delegate to either explain in detail the reasons for a decision or preferably, to set out those reasons in writing.

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