Citation: Director of Public Prosecutions v Skewes [2002] NSWSC 1008
Court: Supreme Court of New South Wales (Common Law Division)
Date: 12 November 2002
Judge(s): Sperling J
Background
The defendant resided in the rear unit of a three-unit block in Tamworth. The units were arranged one behind the other, accessed by a shared driveway running along the side of the property to individual parking bays adjacent to each unit.
On 22 December 2001, police signalled the defendant to stop while he was driving along the road approaching his home. He turned into the driveway and stopped. Police then required him to undergo a roadside breath test while both men stood on the driveway, a short distance inside the front fence line of the property. The test indicated alcohol above the prescribed limit, and the process proceeded to a breath analysis, producing a certificate tendered as evidence under the legislation.
At first instance, the Local Court Magistrate found the prosecution had not proved beyond reasonable doubt that the breath test was not conducted at the defendant's place of abode, as required by the legislation. The Magistrate also declined to exercise any discretion to admit the breath analysis certificate and dismissed the charge. The Director of Public Prosecutions brought proceedings in the Supreme Court seeking to quash that decision.
Legal Issues
- Whether the driveway of the defendant's home unit block constituted his "place of abode" within the meaning of the Road Transport (Safety and Traffic Management) Act 1999, such that police were prohibited from requiring a breath test there.
- Whether the Magistrate applied the correct legal test in making that finding, and whether any error of law was established.
- Whether, if the breath test was unlawfully obtained, the Magistrate retained a discretion to admit the subsequent breath analysis certificate.
Decision
Sperling J upheld the Magistrate's finding that the breath test was conducted at the defendant's place of abode. The relevant statutory provision prohibits police from requiring a breath test at a person's place of abode. The prosecution bore the onus of proving beyond reasonable doubt that the test was not administered at that location, and it had failed to discharge that onus.
The court examined earlier authorities, including the Court of Criminal Appeal's decision in Clampett and Sully J's decision in Haberhauer v Simek, both of which had found that areas physically associated with a residential building, including car parks and car spaces, could form part of a person's place of abode. Sperling J concluded that a driveway providing access to each unit and its adjacent parking bay fell within the same concept. The court rejected any distinction between a parking bay attached to a specific unit and a shared driveway giving access to it.
On the question of admissibility, Sperling J held that no discretion arose at all. Because the prosecution had failed to establish the lawfulness of the breath test, the conditions necessary for a valid breath analysis certificate under the legislation were never met. The certificate was therefore not merely unlawfully obtained but entirely inadmissible as a matter of law. The Magistrate was bound to reject it and dismiss the information. The Supreme Court dismissed the DPP's summons with costs.
Orders Made
- Summons dismissed.
- The plaintiff (Director of Public Prosecutions) to pay the defendant's costs.
Key Takeaways
- Under the Road Transport (Safety and Traffic Management) Act 1999, police are prohibited from requiring a breath test at a person's place of abode, and the prosecution bears the onus of proving beyond reasonable doubt that the test was not administered there.
- The concept of "place of abode" in this legislative context extends beyond the four walls of a dwelling to encompass areas physically associated with the residence, including shared driveways and parking facilities serving a home unit block.
- No error of law was established in the Magistrate's finding: where statutory words are used in accordance with their ordinary meaning and the facts reasonably support a conclusion, the question is one of fact, not law (following Hope v Bathurst City Council (1980) 144 CLR 1).
- Where a breath test is conducted unlawfully at a person's place of abode, the resulting breath analysis certificate is not merely discretionarily excludable. It is inadmissible as a matter of law because the statutory preconditions for its validity are not met.
- Drawing a distinction between a parking bay specifically attached to a unit and the shared driveway giving access to it was rejected as a distinction without a legal difference for the purposes of the statutory prohibition.
Legislation and Cases Referenced
Legislation:
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 4E, 9, 13, 14, 15, 17, 33
- Criminal Appeal Act 1912 (NSW), s 5B
Cases:
- Vatner (1992) 29 NSWLR 311
- Clampett (1983) 11 ACrimR 103
- Haberhauer v Simek (1991) 9 Petty Sessions Review 4235
- Hope v Bathurst City Council (1980) 144 CLR 1
- Methuen-Campbell v Walters [1979] QB 525