Dizo v Commissioner of the Police Service [2009] QDC 387

DISTRICT COURT OF QUEENSLAND CITATION: Dizo v Commissioner of the Police Service [2009] QDC 387 PARTIES: EMILIO DIZO (applicant) v COMMISSIONER OF THE POLICE SERVICE (respondent) FILE NO/S: 3067/09 DIVISION: Civil PROCEEDING: Application for removal of absolute driver licence disqualification ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 26 November 2009 DELIVERED AT: Brisbane HEARING DATE: 26 November 2009 JUDGE: Rafter SC, DCJ ORDER: 1. Pursuant to s 131(2C) Transport Operations (Road Use Management) Act 1995 order that the absolute driver licence disqualification imposed in the District Court at Brisbane on 19 September 2007 be removed immediately. 2. Direct the Registrar pursuant to s 131(2F) Transport Operations (Road Use Management) Act 1995 to transmit a memorandum of the determination of the application to the Commissioner of the Police Service. CATCHWORDS: APPLICATION – removal of absolute driver licence disqualification COUNSEL: Applicant represented himself W. Kelly for the respondent SOLICITORS: Applicant represented himself Queensland Police Service Solicitors Office Introduction [1] The applicant seeks the removal of an absolute driver licence disqualification imposed in the District Court at Brisbane on 19 September 2007. -- 1 of 4 -- 2 [2] The applicant was convicted of unlawful assault following a trial. According to his criminal history1 the offence occurred on 31 August 2006. However, the judgment of the Court of Appeal refusing an application for an extension of time within which to appeal delivered on 18 April 2008 states that the offence was committed on 31 August 20052. The applicant was sentenced to three months imprisonment wholly suspended for an operational period of one year. He was disqualified from holding or obtaining a driver licence absolutely. [3] The applicant is 75 years old. Apart from the offence of unlawful assault he has no other criminal history. Circumstances of the offence [4] The offence involved an episode of road rage during which the applicant punched the female complainant. The trial judge said when sentencing the applicant: “The offence of which you were convicted is constituted by a single blow to the side of the complainant woman’s face. At the time she had her young son and elderly mother in the car with her. I have no doubt that the origin of the offence lay in your own bad temper. It reflects very badly on you that the victim of your bad temper was a woman. I have no doubt that if the driver of the other vehicle had been a male you would have simply returned to your own car. … One of the orders that the Court will make relates to your driver’s licence and in that connection I specifically take into account that you were under the misapprehension from your evidence that the green light facing the complainant woman was a green arrow when, in fact, all of the evidence was that it was not a green arrow.” [5] As I have mentioned on 18 April 2008 the Court of Appeal refused an application for an extension of time within which to appeal3. The court found the applicant’s explanation for the delay untruthful4. [6] The Court of Appeal stated that the absolute driver licence disqualification was clearly appropriate commenting that, “the privileges conferred on the holder of a driver’s licence should not be enjoyed by persons disposed to abuse those privileges.”5 The applicable legislation [7] Section 131(2) Transport Operations (Road Use Management) Act 1995 permits a person disqualified from holding or obtaining a driver licence absolutely or for a period of more than two years to apply for the removal of the disqualification after the expiration of two years from the start of the disqualification period. Section 131(2C) provides: 1 Exhibit A to the affidavit of the applicant filed 28 October 2009 2 R v Dizo [2008] QCA 89 at para 8 3 R v Dizo [2008] QCA 89 4 R v Dizo [2008] QCA 89 at para 6 5 R v Dizo [2008] QCA 89 at para 10 -- 2 of 4 -- 3 “Upon hearing any such application the judge … constituting the court may, as is thought proper, having regard to the character of the person disqualified and the person’s conduct subsequent to the order, the nature of the offence, and any other circumstances of the case, either by order remove the disqualification as from such date as may be specified in the order or refuse the application.” [8] Where the application is refused a further application shall not be entertained if made within one year after the date of refusal: s 131(2D). The applicant’s circumstances [9] The applicant was born in Czechoslovakia. He has held a driver licence for 40 years. He says that he has no traffic history. His traffic record for the period 20 August 2004 to 20 August 20096 shows that he has not committed any traffic offences in that period. The respondent did not suggest that the applicant had any other relevant traffic history. [10] The applicant came to Australia in 19687. [11] The applicant was 73 years old when the absolute driver licence disqualification was imposed on 19 September 2007. At that stage he also had a disability parking permit to enable him to park close to shops and at the doctor’s surgery. His legs become painful if he has to walk any significant distance. He is required to attend at his doctor’s surgery twice a week because of his medical conditions. [12] The applicant cannot afford to catch a taxi to the shopping centre. And the nearest bus stop is an uphill walk8. [13] The applicant’s general practitioner states that the applicant attends the medical practice regularly for scripts and review9. [14] The applicant states: “When I lost my licence I sold my car and had not driven since that time. I have always known and understood that holding a driver’s licence is a privilege and not a right. I worked as a driving instructor for a while and have always been very careful never to speed or break any other traffic rules. I accept that the judge considered the offence to be a road rage incident and that was why he disqualified me from driving. The events that led to the conviction as well as the trial and my appeal were very upsetting to me and I shall regret all of it for the rest of my life. It is devastating to me that it resulted not only in the loss of my licence but also a criminal conviction.”10 6 Exhibit B to the affidavit of the applicant filed 28 October 2009 7 Affidavit of the applicant filed 28 October 2009 at para 4 8 Affidavit of the applicant filed 28 October 2009 at para 6 9 Report of Dr M Rebula dated 26 October 2009, Exhibit C to the affidavit of the applicant filed 28 October 2009 10 Affidavit of the applicant filed 28 October 2009 at paragraph 8 -- 3 of 4 -- 4 [15] The applicant seeks the removal of the driver licence disqualification to enable him to attend his medical appointments and so that he can provide assistance to his daughter and grandson11. Determination [16] The absolute driver licence disqualification imposed on 19 September 2007 was fully justified. The applicant displayed no remorse. [17] The applicant claims that he now has insight into his conduct. [18] The applicant says that without the ability to drive he has become isolated and frustrated12. [19] In the circumstances I am satisfied that it is appropriate to order that the absolute driver licence disqualification be removed effective immediately. The order for removal does not entitle the applicant to drive. He must obtain his driver licence. There was very limited medical evidence placed before the court on the hearing of this application. Jet’s Law in Part 3B Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 provides in s 14J that a person is not eligible for the grant or renewal of a driver licence if the Chief Executive reasonably believes that the person has a physical incapacity that is likely to adversely affect the person’s ability to drive safely. Moreover, an applicant for the grant or renewal of a driver licence must give notice to the Chief Executive about any mental or physical incapacity that is likely to adversely affect the person’s ability to drive safely. [20] As I have mentioned when the applicant was sentenced on 19 September 2007, the trial judge took into account that he was under a misapprehension that the complainant was facing a green arrow. The medical evidence before the court on this application was very brief. It is apparent that the applicant is somewhat hard of hearing. [21] Whether the applicant should in fact be issued with a driver licence is a matter for the Chief Executive. Orders 1. Pursuant to s 131(2C) Transport Operations (Road Use Management) Act 1995 order that the absolute driver licence disqualification imposed in the District Court at Brisbane on 19 September 2007 be removed immediately. 2. Direct the Registrar pursuant to s 131(2F) Transport Operations Road Use Management) Act 1995 to transmit a memorandum of the determination of the application to the Commissioner of the Police Service. 11 Affidavit of the applicant filed 28 October 2009 at paragraph 9 12 Affidavit of the application filed 28 October 2009 at para 9 -- 4 of 4 --