Reported Decision : 68 NSWLR 85 New South Wales Supreme Court CITATION : Director of Public Prosecutions (NSW) v Jeff John Linnett [2006] NSWSC 1086 HEARING DATE(S) : 29/08/2006, 13/10/2006 JUDGMENT DATE : 18 October 2006 JUDGMENT OF : Buddin J CATCHWORDS : Appeal from Magistrate - charge of high range prescribed concentration of alcohol - what constitutes a question of law - meaning of expression "at that person's place of abode" Crimes (Local Courts Appeal and Review) Act 2001 Director of Public Prosecutions Act 1986 LEGISLATION CITED : Evidence Act 1995 Road Transport (Safety and Traffic Management) Act 1999 Traffic Act 1909 Acuthan v Coates (1986) 6 NSWLR 472 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 DPP (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343 DPP v Skewes [2002] NSWSC 1008 Haberhauer v Simek (1991) 9 Petty Sessions Review 4235 CASES CITED : Hall v Coughlan (1970) 91 WN (NSW) 886 Merchant v The Queen (1971) 126 CLR 414 R v Clampett (1984) 11 A Crim R 103 R v Olejarnik (1994) 72 A Crim R 542 R v Vatner (1992) 29 NSWLR 311 Shenton v Hayhurst (NSWSC unrep 9 October 1992) The Australian Gas Light Co v Valuer-General (1940) 40 SR NSW 126 Williams v Evans [1966] 1 NSWR 245 PARTIES : Director of Public Prosecutions (Plaintiff) Jeff John Linnett (Defendant) FILE NUMBER(S) : SC 12993/2006 COUNSEL : M Buscombe (Plaintiff) GJ Graham (Defendant) SOLICITORS : SC Kavanagh - Solicitor for Public Prosecutions (Plaintiff) Sneddon & Partners (Defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : Mr S McCosker, Magistrate LOWER COURT DATE OF DECISION : 15 March 2006 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BUDDIN J WEDNESDAY 18 OCTOBER 2006 12993/2006 – DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JEFF JOHN LINNETT JUDGMENT 1 HIS HONOUR: This is an appeal brought pursuant to s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 by the Director of Public Prosecutions, the plaintiff in these proceedings. The appeal is against an order made by a Magistrate at Forster Local Court on 15 March 2006 dismissing an information brought against the defendant for driving with a high range prescribed concentration of alcohol. That conduct constitutes an offence against s 9(4)(a) of the Road Transport (Safety and Traffic Management) Act 1999 (the Act). 2 The defendant was the subject of a court attendance notice which alleged that he committed the offence on 13 December 2005 when he drove his vehicle on a road which was within the Pacific Palms Caravan Park at Elizabeth Beach. 3 At the outset of the hearing before the Magistrate, objection was taken to the tender in the prosecution case of the certificate of analysis of the defendant's breath which had been prepared in accordance with s 33 of the Act. The basis of the objection was that the initial breath test which had been administered to the defendant at the roadside had been administered "at [his] place of abode" in breach of s 17(d) of the Act. The Magistrate upheld the objection, ruled that the certificate was inadmissible and accordingly rejected its tender. When the prosecutor indicated that he had no further evidence to call, his Honour then dismissed the charge. 4 Pursuant to s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001, the plaintiff seeks to have the Magistrate's decision set aside together with various ancillary orders. The plaintiff's right to appeal is limited to "a ground that involves a question of law only". It will be necessary to give further consideration to that question as the defendant contends that the Magistrate's decision involved a question of fact alone with the consequence that the appeal is incompetent. 5 The prosecution was conducted in the Local Court by a police officer. However, the plaintiff has, pursuant to s 9 of the Director of Public Prosecutions Act 1986, taken over the conduct of the proceedings. Notice of his decision to do so was duly given and counsel appeared on behalf of the Director to prosecute the present appeal. 6 The only evidence adduced was an affidavit, sworn by Ms Beatrice Scheepers, who is a solicitor employed by the plaintiff, which was of an entirely formal nature. Annexed to it was the transcript of the proceedings in the Local Court together with other relevant material, including the exhibits. The relevant legislation 7 As I have said, the offence with which the defendant was charged is contained in s 9(4) of the Act. It is in the following terms: A person must not, while there is present in his or her blood the high range prescribed concentration of alcohol: (a) drive a motor vehicle 8 "Drive" is defined in the Dictionary to the Act to relevantly include: (a) be in control of the steering, movement or propulsion of a vehicle. 9 "Motor vehicle" and "high range prescribed concentration of alcohol" are also defined in the Act's Dictionary. 10 A police officer's power to require a person to undergo a breath test is contained in s 13 of the Act. It is in the following terms: 1) A police officer may require a person to undergo a breath test in accordance with the officer's directions if the officer has reasonable cause to believe that the person: (a) is or was driving a motor vehicle on a road or road related area, or (b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or (c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area. 11 It is an offence for a person to refuse or fail to undergo a breath test when required to do so: (s13(2)). A police officer may, for the purposes of s 13 of the Act, request a driver of a motor vehicle to stop the vehicle. 12 "Road" is defined in the Dictionary to the Act to mean; "an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles". "Road related area" is defined in the Dictionary to the Act to mean: (a) an area that divides a road, or (b) a footpath or nature strip adjacent to a road, or (c) an area that is open to the public and is designated for use by cyclists or animals, or (d) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles, or (e) a shoulder of a road, or (f) any other area that is open to or used by the public and that has been declared under section 15 of the Road Transport (General) Act 2005 to be an area to which specified provisions of this Act or the regulations apply. 13 Section 14 of the Act provides for a power of arrest as a consequence of the result of a breath test administered pursuant to s 13 of the Act. Relevantly s 14 provides as follows: (1) A police officer may exercise the powers referred to in subsection (2) in respect of a person if: (b) it appears to the officer from a breath test carried out under section 13 (1) by the officer that the device by means of which the test was carried out indicates that there may be present in the person's blood a concentration of alcohol of not less than 0.05 grammes in 100 millilitres of the blood. (2) A police officer may: (a) arrest a person referred to in subsection (1) without warrant, and (b) take the person, or cause the person to be taken, with such force as may be necessary, to a police station or some other place as the officer considers desirable, and (c) detain the person, or cause the person to be detained, at that police station or other place for the purposes of this Division. 14 Section 15 of the Act provides for a breath analysis to be conducted of a person arrested under s 14 of the Act. Relevantly it is in the following terms: ( 1) A police officer may require a person who has been arrested under section 14 to submit to a breath analysis in accordance with the directions of the officer. (2) A breath analysis must be carried out by a police officer authorised to do so by the Commissioner of Police at or near a police station or such other place as that officer considers desirable. (3) As soon as practicable after a person has submitted to a breath analysis, the police officer operating the breath analysing instrument must deliver a written statement to that person signed by that officer specifying the following: (a) the concentration of alcohol determined by the analysis to be present in that person's blood and expressed in grammes of alcohol in 100 millilitres of blood, (b) the day on and time of the day at which the breath analysis was completed. (4) A person who is required by a police officer under subsection (1) to submit to a breath analysis must not refuse or fail to submit to that analysis in accordance with the directions of the officer. (5) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to submit to a breath analysis. 15 Section 17 of the Act provides that a police officer cannot require a person to undergo a breath test or to submit to a breath analysis "at that person's place of abode": (s 17(d)). 16 Section 33 of the Act relevantly provides as follows: (1) In proceedings for an offence under section 9 a certificate purporting to be signed by a police officer certifying that: (a) the officer is authorised by the Commissioner of Police to operate breath analysing instruments, and (b) a person named in the certificate submitted to a breath analysis, and (c) the apparatus used by the officer to make the breath analysis was a breath analysing instrument within the meaning of this Act, and (d) the analysis was made on the day and completed at the time stated in the certificate, and (e) a concentration of alcohol determined by that breath analysing instrument and expressed in grammes of alcohol in 100 millilitres of blood was present in the blood of that person on the day and at the time stated in the certificate, and (f) a statement in writing required by section 15 (3) was delivered in accordance with that subsection, is evidence (unless evidence to the contrary is adduced) of the particulars certified in and by the certificate . (2) In proceedings for an offence under section 9 or Division 3 a certificate purporting to be signed by the Commissioner of Police that the police officer named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments is evidence (unless evidence to the contrary is adduced) of the particulars certified in and by the certificate. (3) In proceedings for an offence under section 9 or Division 3, evidence of the condition of a breath analysing instrument or the manner in which it was operated is not required unless evidence that the instrument was not in proper condition or was not properly operated has been adduced. 17 It is common ground that the onus lay on the prosecution to establish beyond reasonable doubt that the defendant was not required to undergo the breath test at his place of abode: R v Vatner (1992) 29 NSWLR 311. The Magistrate's decision 18 It is important to acknowledge from the outset that his Honour's judgment was delivered ex-tempore during the course of what was no doubt a busy list: see Acuthan v Coates (1986) 6 NSWLR 472 at 479. 19 His Honour was provided with a number of authorities by counsel who appeared on behalf of the defendant. During the course of his judgment, his Honour made reference to those decisions. In due course, it will be necessary to give further consideration to them. 20 The parties have reached agreement as to the findings of fact which were made by the Magistrate. Before proceeding further it is necessary to set out those findings which are in the following terms: On 13 December 2005 the defendant was holidaying with his wife and child at the Pacific Palms Caravan park. The defendant had a permanent on-site van at that location. The defendant had an exclusive right to occupy and enjoy a particular van site within the caravan park and the right to enjoy amenities with the park not available at the caravan site. As at 13 December 2005 the defendant was a resident at that park. At approximately 1.15 pm the defendant was observed by police to drive his motor vehicle along a road within the caravan park. That road gave the defendant access to his van site. The defendant was intercepted by the police while driving on that road at a distance of approximately 80 metres from the area of his van site. The officer smelt alcohol on his breath. The defendant was required to undergo a breath test while on a road within the caravan park. The defendant was removed from the caravan park and underwent a breath analysis. The caravan park contained 132 permanent on-site vans. In addition, there were 13 cabins and 5 van sites, which were available for letting to the general public. The caravan park had no boom gates and was open to and used by the public to a limited extent. The road on which the breath test was conducted was a road used by the general public, in that those members of the general public interested in renting a site or cabin, had access to the roadways within the caravan park. 21 It is convenient to now identify the key conclusions at which the Magistrate arrived in the light of those factual findings: What I am required to look at is to determine whether the road upon which Mr Linnett was driving, which is within the boundaries of the caravan park per se, is a road which he would be entitled to say to the Court, "There is no obligation upon me to supply a sample of breath in the circumstances and any demand to do so is contrary to the provisions of s 17D". … Here, there is a caravan park which has no boom gates, which to an extent is open to and used by the public, but to a limited extent. It seems to me that in coming to the decision in Abraham's case, his Honour was looking at a car park which was annexed to a hotel. Here I think a distinction can be drawn by virtue of the fact that the roads within the caravan park provide one purpose and that is to access particular areas, but there are two distinct sections of the community which use that particular car park. One is an offer extended to the broader community to rent the cabins and the caravan sites, and the other is the section of the community which, subject to not exceeding the number of days as fixed by Mr Morley, has a right to occupy to their exclusive use and enjoyment, a particular site within that caravan park. Now, in looking at the cases that have been put to me, there can be a number of distinctions. Clampet's case, which has been referred to, provided that one may take some comfort whether a particular portion of a building is within the curtilage of a premises if there is some sort of structure which would indicate that to be the case, and that was viewed to be a matter which can be looked upon to determine the question of whether or not it is within the curtilage of a particular area. … It then comes to determine whether the access road to that particular point, noting that Mr Linnett was intercepted some 80 metres from that area, comes to determine whether or not that would be part of the residence of him. I go further … in Sperling J's decision in the case of Skewes, at para (21) he says: 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. I think that's the key to the particular matter, that there was a multi-occupancy area and it clearly was an area which was used by members of the public in part as set out in Abraham's case, but here, this particular roadway provided an access to the caravan site at which the defendant was resident. It seems to me in that situation that it would fall within the definition of a person's place of abode . (emphasis added) Question of law 22 Before turning to consider the plaintiff's submissions concerning the manner in which it is asserted that his Honour erred in law, it is convenient to briefly refer to the issue of what constitutes a question of law. 23 In DPP (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343 Johnson J made the following observations which bear repetition: There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394; Sood v R [2006] NSWCCA 114 at paragraph 30. The formulation "question of law" employs general words capable of application at different levels of generality: Attorney General for NSW v X (2000) 49 NSWLR 653 at 660 (paragraph 25). The expression "question of law" is wider than "error of law" : Attorney General for NSW v X at 677 (paragraph 124). A mixed question of fact and law does not fall within the description of "question of law alone" : Williams v The Queen (1986) 161 CLR 278 at 287, 314; Attorney General for NSW v X at 663 (paragraph 44). That an appeal to this Court by a prosecutor from an acquittal in summary criminal proceedings is confined to a question of law alone is not surprising. Such an appeal constitutes a statutory exception to the rule against double jeopardy: Davern v Messel (1983-1984) 155 CLR 21 at 30. However, a decision of a court of summary jurisdiction acquitting a defendant has never been regarded with the same sanctity as the verdict of a jury and the consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of a Magistrate dismissing a charge and empowering the Supreme Court on appeal to quash the order: Davern v Messel at 37-38. (at paras 58-62) 24 In Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389, the High Court observed: …In Hayes v Federal Commissioner of Taxation , Fullagar J emphasised the distinction between the factum probandum (the ultimate fact in issue) and the facta probantia (the facts adduced to prove or disprove that ultimate fact). His Honour said: "Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." In Collector of Customs v Pozzolanic Enterprises Pty Ltd the Full Federal Court spoke of the distinction between law and fact in a statutory context as resting upon "value judgement[s] about the range of [an] Act" which, the Court said, necessarily raised questions of law. Some recent Federal Court decisions have attempted to distil the numerous authorities on the problem into a number of general propositions. Thus in Pozzolanic, after referring to many cases, the Court identified five general propositions: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact. 3. The meaning of a technical legal term is a question of law. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law." In Pozzolanic , the Full Court qualified the fifth proposition. The Court said that, when a statute uses words according to their ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do or do not is one of fact. (at 394-5) 25 In The Australian Gas Light Co v Valuer-General (1940) 40 SR NSW 126, a decision referred to by the High Court in Agfa-Gevaert Ltd, Jordan CJ concluded that: [a] finding of fact by a tribunal of fact…can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: In re Ripon Collins v Minister of Health , or (c) if it has misdirected itself in law: Farmer v Cotton's Trustees: Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation . Thus, if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. (omitting foot notes) (at 138) 26 In Williams v Evans [1966] 1 NSWR 245, Asprey and Holmes JJA in a joint judgment, said: [t]hough the meaning of an ordinary English work used in a statute is a question of fact, not of law, nevertheless a finding by a tribunal of fact can be disturbed if the facts inferred by it or which can only be inferred by it from the evidence are necessarily within the description of the word or phrase in the state and the tribunal has made a contrary finding. In that situation its decision is wrong in law ( Australian Gas Light Co. v Valuer-General (1940), 40 S.R. (N.S.W.) 126, at pp. 137-8; O'Connell v Newcastle Municipal Council (1941), 41 S.R. (N.S.W.) 190 at p. 192. ( at 252) 27 Finally in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, Glass JA, with whom Samuels JA agreed, said: [a] finding of fact…may nevertheless reveal an error of law where it appears that the trial judge has misdirected himself ie has defined otherwise than in accordance with law the question of fact which he has to answer. A possibility of this kind exists with ultimate findings of fact but not with respect to primary findings of fact such as whether the applicant suffered injury on a particular date. Further an ultimate finding of fact, even in the absence of a misdirection, may reveal error or law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made, Hope v Bathurst City Council (1980) 144 CLR 1 at 10; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; 57 WN 53 at 55. (at 156) The scope of the phrase "at that person's place of abode" 28 There is no definition in the Act of the phrase "place of abode". However it is defined in the Oxford English Dictionary to mean a person's "residence". In Shenton v Hayhurst (NSWSC unrep 9 October 1992) Campbell J held that the phrase, in the context of the Traffic Act 1909 included "the immediate residential situation of a person" (at 4). It may be noted that the phrase which was used in that particular provision (s 4E(5)(d) was a person's "usual place of abode". However since the plaintiff does not dispute that "the defendant's place of abode was the site that he was authorised to occupy within the caravan park", it is unnecessary for present purposes to further consider this issue. 29 Given the prominence which the Magistrate gave to the decision in DPP v Skewes [2002] NSWSC 1008, it is convenient to refer to that decision in some detail. The relevant factual background was described by Sperling J in the following terms: 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. 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. (par 4-5) 30 His Honour then embarked upon the following detailed analysis of the relevant authorities: 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. 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. 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. 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. 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. 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. 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. 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. 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. 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… 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. 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. 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. (pars 9-21) 31 The plaintiff submitted that the Magistrate fell into error in a number of respects. First, it was submitted that his Honour applied the wrong test when considering whether or not s 17(d) of the Act had been breached. It was submitted that in so doing his Honour misdirected himself. 32 The Magistrate, as I indicated earlier, posed the issue for determination in the following terms: What I am required to look at is to determine whether the road upon which Mr Linnett was driving, which is within the boundaries of the caravan park per se, is a road which he would be entitled to say to the Court, "There is no obligation upon me to supply a sample of breath in the circumstances and any demand to do so is contrary to the provisions of s 17D". 33 The plaintiff contended that the Magistrate erred in so characterising the issue which fell to be decided. The real question to which the Magistrate was required to turn his mind was whether or not the defendant had been required to undergo the breath test "at [his] place of abode". Rather it seems that the Magistrate considered that he had to determine if there was a category of road which entitled the defendant to refuse to take part in a breath test. Accordingly, I am of the view that error has been established. 34 The plaintiff then submitted that the Magistrate had also fallen into error because the facts which he found were necessarily outside of the phrase "at that person's place of abode". The facts as found established that, even if the distance could not be determined with total precision, the breath test was administered on a road or roadway approximately 80 metres from the area of the defendant's van site. Although the area of the roadway where the breath test was administered was within the caravan park, the Magistrate specifically found that it was an area used by members of the general public as well as by occupants of the caravan park. The evidence did not suggest that the defendant had the exclusive right to the use of the road or roadway or conversely that he had any capacity to restrict access by members of the public to it or more specifically to that part of the roadway where the breath test was administered. Indeed the evidence is to the contrary. As the authorities reviewed by Sperling J make plain, a person's exclusive right of access to the area where the test is administered is a critical consideration. The statutory scheme is, after all, clearly designed to control the conduct of drivers upon roads which are available for use by members of the public. I accept the plaintiff's submission that the facts found by the Magistrate necessarily take the matter outside the scope of the statutory phrase contained in s 17(d) of the Act. That state of affairs, according to the principles referred to earlier, is sufficient to constitute error. Accordingly I reject the submission made on behalf of the defendant that the question determined by the Magistrate was one of fact. 35 The defendant submitted that the Magistrate was correct in placing the emphasis which he did upon the decision in Skewes. It may be accepted, for the purposes of that decision, that Sperling J saw no reason to distinguish between the front yard of a single occupancy house and the front yard of a home unit or "multiple-occupancy" property. But Sperling J was speaking of "multi-occupancy" in the sense of a block of high-rise units. His Honour was not, and could not be taken, as meaning the expression "multi-occupancy" to extend beyond the facts that existed in that case to the present situation. The Magistrate clearly erred in picking up that expression and transposing it to the very different facts of the present case. Accordingly, even though the various occupants of the caravan park may have shared the facilities of the park (wherever they were located), they did not in any sense all occupy or reside in the same physical space or area. Nor was there any building or structure which provided any physical connection between the various occupants of the caravan park. In the cases to which the Magistrate referred there was a continuous physical connection, or as Street CJ described it in R v Clampett (1984) 11 A Crim R 103, a "physical contiguity", between the carpark and the residence of the person in question. In Skewes, for example, the test took place on the driveway within the front fence alignment of the premises. The contrast between such a case and the circumstances which prevailed in the present case is telling. The Magistrate's reliance on Skewes was accordingly misplaced. 36 Nor was there any physical, or indeed geographical, connection between the defendant's caravan site (adjacent to which no doubt his car space was located) and the place at which the breath test was undertaken such as to compel the conclusion that the test was administered "at [his] place of abode". The fact that the defendant used the road upon which it was administered as an access route to and from his site cannot be determinative of that fundamental issue. 37 The defendant was driven to the contention that the expression "at [his] place of abode" meant the whole of the caravan park. That submission needs only to be stated in order for it to be rejected. In Skewes, as I have said, Sperling J reviewed the various authorities. It included an examination of the decision of the Court of Criminal Appeal in Clampett (supra). His Honour's analysis bears repetition in the present context: 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. 38 In Hall v Coughlan (1970) 91 WN (NSW) 886, Meares J held that a person who had driven a vehicle onto the footpath adjacent to, but outside the front fence of, his home could not be regarded as being "at [his] usual place of abode" within the meaning of the legislative provision which was then in existence. His Honour observed that "it would be surprising if a footpath defined in the Act as a public street could be construed as a person's usual place of abode" (at 889). Similarly it would be surprising if that part of the road upon which the defendant was travelling when intercepted by police could be regarded as being "at [his] place of abode". See also the definitions of "road" and "road related area" in the current legislation. Moreover Meares J drew a distinction between the expression "at", which denoted a degree of exactitude as to the location in question, and the phrase "at or near" which did not. That line of reasoning was adopted by Sully J in Haberhauer v Simek (1991) 9 Petty Sessions Review 4235. In my view the Magistrate should also have borne that distinction in mind in reaching his decision. 39 In construing the scope of the phrase "at that person's place of abode", it is appropriate to also have regard to the legislative intention. The mischief which the legislation is intended to address scarcely requires elucidation. In Clampett (supra), Street CJ observed, of an earlier form of the current legislation, that: "[it] contains a statutory scheme central to which is the exposure ot punishment of persons who are found on breath analysis to have a concentration of alcohol in their blood of not less than [the prescribed quantity]". (at 104) 40 The relevant Minister when introducing the relevant amendments to the Traffic Act which contained the prohibition upon breath testing "at that person's place of abode", said that: [w]e have provided also that a driver shall not be requested to undergo a breath test, or submit to a breath analysis by Breathalyzer, while at his usual place of abode. This means we will not have the situation of a policeman knocking on a person's door at any old hour, and requiring him to take a breath test, or submit to a Breathylzer analysis. (Legislative Assembly Hansard 4 December 1968 at 3416). 41 This material lends support to the plaintiff's contention that the circumstances in which the breath test in the present case was administered could not properly be regarded as having taken place "at the [defendant's] place of abode" and nor could they have been contemplated as such by the legislature when it introduced the provision. The admissibility of the s 33 Certificate 42 The plaintiff submitted, notwithstanding the Magistrate's determination that the breath test had been administered unlawfully, that his Honour nonetheless erred in failing to consider the exercise of the discretion reposed in him by s 138 of the Evidence Act 1995 in deciding whether or not to admit the s 33 certificate. The plaintiff relied upon a series of cases decided prior to the introduction of the Evidence Act to the effect that where there has been an unlawfully administered breath test then it is a matter for the exercise of a discretion (the so-called Bunning v Cross discretion) as to whether or not the certificate of analysis should be excluded: Merchant v The Queen (1971) 126 CLR 414. In Haberhauer (supra) Sully J observed that "the notion that a breach of s 4E(5)(d) [of the Traffic Act] renders absolutely inadmissible evidence of the result of a breath analysis conducted after the breach, cannot be sustained, in my opinion, in light of the decision of the High Court in Merchant v The Queen" (at 4241): see also R v Olejarnik (1994) 72 A Crim R 542. 43 In view of the conclusion at which I have arrived in respect of the plaintiff's primary argument, it is not necessary to reach a concluded view upon this aspect of the matter. Nor would it be appropriate to do so given that the prosecutor did not request his Honour to consider the operation of the section and also because I did not hear full argument upon the issue. Orders 44 Accordingly I make the following orders: 1 An order pursuant to s 59(2) of the Crimes (Local Courts Appeal and Review) Act 2001 setting aside the orders made on 15 March 2006 of Mr S McCosker, Magistrate, dismissing an information for driving with high range prescribed concentration of alcohol: s 9(4)(a), Road Transport (Safety and Traffic Management) Act 1999 ("the Act"). 2 A declaration that the Magistrate erred in law in determining that the Defendant had been required to submit to a breath test at his place of abode within the meaning of s 17(d) of the Act. 3 A declaration that the Magistrate erred in law in refusing to admit into evidence a breath analysis certificate under s 33 of the Act. 4 A declaration that the Magistrate erred in law in dismissing the proceedings. 5 An order that the matter be remitted to the Local Court to be dealt with in accordance with the orders and reasons for judgment of this Court. 6 An order that the Defendant pay the Plaintiff's costs of these proceedings, but grant the defendant, if qualified, a certificate under s 6 of the Suitors' Fund Act 1951 . "********** 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.