New South Wales Supreme Court CITATION : Director of Public Prosecutions v Skewes [2002] NSWSC 1008 CURRENT JURISDICTION: Common Law Criminal FILE NUMBER(S) : SC 12291/02 HEARING DATE(S) : 22 October 2002 JUDGMENT DATE : 12 November 2002 PARTIES : Director of Public Prosecutions Rohan Earl Skewes JUDGMENT OF : Sperling J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT MacPherson LCM JUDICIAL OFFICER : COUNSEL : Mr R Hulme SC for the Crown Mr T Khan (Solicitor) for the Respondent SOLICITORS : Mr SE O'Connor for the Director of Public Prosecutions Egan Murphy Solicitors for the Respondent CATCHWORDS : Criminal Law - driving with prescribed concentration of alcohol - breath test required on driveway of home unit block where the person resided - whether a breath test was required of the person at his "place of abode" - the prosecution having failed on that issue, whether there was a discretion to admit the subsequent breath analysis certificate LEGISLATION CITED : Criminal Appeal Act 1912, s5B Road Transport (Safety and Traffic Management) Act 1999, s4E, s9, s13, s14, s15, s17, s33 Clampett (1983) 11 ACrimR 103 Haberhauer v Simek (1991) 9 Petty Sessions Review 4235 CASES CITED : Hope v Bathurst City Council (1980) 144 CLR 1 Methuen-Campbell v Walters [1979] QB 525 Vatner (1992) 29 NSWLR 311 DECISION : 1. Summons dismissed; 2. The plaintiff to pay the defendant's costs. - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Sperling J Tuesday, 12 November 2002 12291/02 DPP v Skewes Judgment 1 His Honour: The defendant Rohan Earl Skewes was charged with the offence of driving a motor vehicle while there was present in his blood the low range prescribed concentration of alcohol, contrary to s9 of the Road Transport (Safety and Traffic Management) Act 1999. 2 Section 13 of the Act empowers a police officer to require a person to undergo a breath test. Section 14 provides that, if the test indicates a possible excess concentration of alcohol, a police officer may arrest the person concerned and take the person to a police station. By s15, a person so arrested may be required to submit to a breath analysis. Section 33 provides that, in proceedings for an offence under s9, a certificate as to the result of such a breath analysis is evidence of its contents. 3 Section 17 of the Act provides that a police officer may not require a person to undergo a breath test or submit to breath analysis at that person's place of abode. 4 On 22 December 2001, the charge was heard by MI MacPherson LCM. The facts of the case were not in dispute in any material particular. The defendant resided in the rear unit of three units situated at 196 Goonoo Goonoo Road, Tamworth. The units are one behind the other. There is a driveway from the road, running along the side of the building, that is, towards the rear of the property. Incorporated in or immediately adjacent to each unit there is a vehicle parking bay. The driveway provides access to each of the parking bays. 5 On 22 December 2001, the defendant was driving his vehicle in Goonoo Goonoo Road, approaching his residence. Constable Preston signalled the defendant to stop by flashing the lights and sounding the siren of his police vehicle. The defendant turned into the driveway of the units to which I have referred and stopped his vehicle in the driveway. Constable Preston approached on foot and directed the defendant to submit to a breath test. At that time, the two men were standing on the driveway a short distance within the front fence alignment of the property. The breath test was indicative of alcohol in excess of the prescribed limit. The steps then prescribed by the legislation led to the certificate pursuant to s33 of the Act. 6 It was held in Vatner (1992) 29 NSWLR 311 – a decision under the forerunner of the present legislation – that, where the issue is raised for determination, the onus lies on the prosecuting authority to establish beyond reasonable doubt that the person was not requested to undergo the breath test at the person's place of abode. MacPherson LCM referred to Vatner and correctly directed himself concerning the burden of proof. He then found that the prosecution had not satisfied him beyond reasonable doubt that the breath test was not administered at the defendant's place of abode. 7 He was then asked by the prosecutor to admit the certificate in the exercise of the court's discretion notwithstanding that it had been unlawfully obtained. The learned magistrate declined to do so. The information was accordingly dismissed and the defendant was discharged. 8 By summons filed in this court, the Director of Public Prosecutions seeks an order quashing the order dismissing the information, a declaration that the learned magistrate erred in law by misdirecting himself as to the correct test to be applied in determining whether a breath test had been required at the defendant's place of abode within the meaning of the legislation, and an order that the matter be remitted to the Local Court to be dealt with according to law. 9 The premises involved in Clampett (1983) 11 ACrimR 103 were a residential building known as Ferguson Lodge, which provided accommodation for paraplegics and quadriplegics within the grounds of Lidcombe State Hospital. Contiguous to the building was a covered car park area available for the parking of cars, including cars owned by residents. The covered car park provided sheltered access directly into the main structure of the residential building. The respondent drove his vehicle into that car park and it was there that he was approached by the police and directed to undergo a breath test which proved positive. 10 On a re-hearing in the District Court, the judge decided that the place where the respondent was required to undergo the breath test was at his place of abode. At that stage, a request was made by the Crown to state a case. That came before the Court of Criminal Appeal constituted by Street CJ and Lee and Cantor JJ. In the judgment of Street CJ (with whom Lee and Cantor JJ agreed) it is recorded (at 105) that the single question raised was whether or not, upon the facts, it was open to the judge below to conclude that the requirement made of the respondent to undergo a breath test was made at his usual place of abode; and that the Crown conceded that this was so. 11 That appears to have disposed of the matter. However, Street CJ went on to make some observations. He said that the only element which might have taken the facts outside the concept of "place of abode" was the physical removal of the car park area from the main structure of the building. However, the car park was covered by a roof connected with the main building. The car park was, accordingly, part of the overall structure which constituted the building complex in which the respondent resided. His Honour said (at 106): The Crown, in its submissions, which incorporate the concession made, has accepted that the common law concept of the delineation of the curtilage is the reliable indicator of the concept of a place of abode. I do not consider it necessary to resolve whether this concession is valid, I am content to accept it as applying in this case in which this car park has physical contiguity to the main building, its use being incorporated in use of the building by the persons who live in the main building as part of their ordinary living facilities. This renders it open to the District Court to determine, as a question of fact, that the car park area was at the respondent's "usual place of abode". I would accordingly be disposed, without examining the legal questions in any further detail, to answer the question that has been postulated earlier in these reasons in the affirmative and would propose that the case be remitted to the District Court with this statement of opinion. 12 I apprehend that by "the common law concept of the delineation of the curtilage" his Honour meant to refer to an enclosed space in which a building may be situated. One can understand why his Honour would have baulked at applying that concept universally in the subject case. Assuming that the hospital premises were enclosed and that Ferguson Lodge was not, the court would have been slow to countenance a universal test which would have resulted in the respondent's place of abode within the meaning of the legislation taking in the whole of the hospital grounds. 13 In Haberhauer v Simek (1991) 9 Petty Sessions Review 4235, a stated case came before Sully J in a similar matter. It involved the forerunner of the present legislation. The premises were a block of units. The respondent was co-lessee of one of them. Title to the unit included a specific car space. The breath testing was carried out there. The magistrate held that the testing occurred at the respondent's place of abode, contrary to the provisions of the statute. 14 Sully J upheld the finding that the testing was done at the respondent's place of abode within the meaning of the legislation. His Honour noted that Clampett expressly left open the proposition that the common law concept of the delineation of the curtilage was the reliable indicator of the concept of a place of abode. At [4.13], his Honour considered that the phrase "usual place of abode" equalled "home". At [4.15], he supplemented that concept with the following principle. [T] he principle, well established in the common law of real property, that ground which is used for the comfortable enjoyment of a dwelling place may be regarded as integral with the dwelling, although not marked off or enclosed. 15 His Honour went on to say, at [4.14] that such an approach could not provide a single, all-purpose test of what will or will not fall within the reasonable concept of a particular person's "home". Each case, his Honour said, must be decided having regard to "the character and the circumstances of the item under consideration": per Buckley LJ in Methuen-Campbell v Walters [1979] QB 525 at 544. His Honour came to the following conclusion, at [4.15]: I have come to the conclusion that the "character and circumstances" of the parking lot here under consideration are such that it was reasonably open to the learned Magistrate to find, as his Worship did, that the parking lot was integral with the residential unit, so as to entail that a requirement that the respondent submit to a breath test at that parking lot was a requirement made in breach of s4E (5) (d) of the Act. 16 The facts of Haberhauer and those of the present case are not markedly different. In Haberhauer the respondent had an exclusive right, with her co-lessee, to the use of the car space. In the present case, the respondent had an exclusive right, with the other residents, to the use of the driveway for access to the parking bays. I apprehend that, on Sully J's test, the driveway was used for the comfortable enjoyment by the respondent of his unit as his home, and was, accordingly, part of the respondent's place of abode. A dedicated car space and a driveway giving necessary access to such a car space would not seem to be distinguishable in that respect. 17 In Vatner (above) the appellant was convicted in the Local Court on two charges, the first being a refusal to undergo a breath test and the second a refusal to submit to a breath analysis, contrary to the forerunner of the present legislation. There was a conflict in the evidence, the police officer stating that the appellant was standing on the footpath outside his home when asked to undergo the breath test, and the appellant stating that he was standing inside the boundary of the property at that time. Flannery DCJ found that he was not satisfied beyond reasonable doubt that the requirement to undergo the breath test was not made at the appellant's place of abode, and that he was not satisfied on a balance of probabilities that the requirement was made at the appellant's place of abode. Accordingly, if the onus of proof was on the Crown, the prosecution would fail on that issue; but if the onus of proof was on the appellant, the prosecution would succeed on the issue. 18 Flannery DCJ stated questions for determination by the Court of Criminal Appeal pursuant to s5B of the Criminal Appeal Act 1912. The Court (at 315) made the following observation on the facts of the case. It is manifestly clear that if Constable Hancock required the appellant to undergo a breath test while the appellant was standing within the boundary of his usual place of abode, such requirement was unlawful… 19 On the hearing before me, it was submitted on behalf of the Crown that it was common ground throughout the proceedings in Vatner that if, the appellant was within the boundary of his property when required to undergo the breath test, he was at that time at his place of abode within the meaning of the legislation. That appears to be so. However, the Court of Criminal Appeal in Vatner had no difficulty with the assumption. Indeed, they said it was manifestly clear. 20 I take the Court to have been saying in Vatner that in the case of an ordinary residential property, anything inside the boundary of the property is part of an occupant's place of abode. 21 The Crown argued before me that the property in Vatner might have been a single occupancy property. It is then argued that what was said in Vatner cannot automatically be applied to multiple occupancy properties. I have to say that, for my part, I cannot see the distinction in point of policy. Why would the legislature discriminate between a person being required to undergo a breath test in the front yard of a single occupancy house property in which the person lived and a person being required to undergo such a test in the front yard of a home unit building in which the person lived? The distinction is one without a difference. It cannot have been a distinction intended by the legislature. 22 Other authorities were cited in written submissions and in oral argument. They do not seem to me to have sufficient bearing on the point to warrant consideration, certainly not at my level of the judicial hierarchy in view of what was said in Vatner. 23 Where, as in the present case, words are used by a statute in accordance with their common understanding and the question is whether the facts as found fall within those words, the question is one of fact, unless the material reasonably admits of only one conclusion, in which case the question is one of law: Hope v Bathurst City Council (1980) 144 CLR 1, 7-9. 24 Whether one looks at the present case from the standpoint of the principles stated by Sully J, with which I do not disagree, or from the standpoint of what was said in Vatner, it was at least reasonably open to the learned magistrate to make the finding that he made or, as I believe, it was the only reasonable finding open to him. In either case, there was no error of law. 25 In Vatner, as I have recorded, the Court decided where the onus of proof lay on the issue as to whether a person is at the person's place of abode. The Court then went on to hold (at 316) that, because the prosecution had failed on that issue, the offence of refusing to undergo a breath test was not made out. Similarly, because the arrest was then invalid and the requirement to submit to a breath analysis was then also invalid, the offence of failing to submit to a breath analysis was not made out. The Court accordingly remitted the proceedings to the District Court with a direction that the appellant was entitled to a verdict of not guilty on each charge. 26 By parity of reasoning, so far as the present case is concerned, the prosecution having failed on the issue as to whether the breath test was required at the defendant's place of abode, the conditions necessary for the issue of a certificate under the legislation were not established. The certificate was therefore not a valid certificate and was, accordingly, inadmissible. In these circumstances, no question of discretion arose as to whether the certificate should be admitted into evidence. It had to be rejected. The learned magistrate was then bound to dismiss the information as he did. 27 I make the following orders: 1. Summons dismissed. 2. The plaintiff to pay the defendant's costs. -o0o- Last Modified: 11/14/2002 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.