[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.