2. The record of proceedings shows that the applicant was charged on a complaint dated 13 February 1986 for hearing in the Court of Petty Sessions, Hobart and was remanded on a large number of occasions until finally he appeared in the Court of Petty Sessions at Burnie on the 10 July 1986 and pleaded not guilty to both charges. Sworn evidence was given on that day and again on 10 September 1986 and again on 12 November 1986. The applicant then submitted that he had no case to answer and the matter was adjourned until the 28 November 1986 when his Worship held that the defendant did have a case to answer and published reasons for so holding. The applicant made an unsworn statement. The learned magistrate found the complaints proved, convicted the defendant, imposed a fine, in default 12 days imprisonment, and disqualified him from holding a licence to drive a motor vehicle for a period of three months.

3. Both before Mr Shott and before me the applicant appeared in person. While he was not without some knowledge of law and procedure, he found it difficult to classify his arguments into categories and to frame his grounds of appeal. He had several attempts at the latter without a great deal of success, and Mr Sugden graciously and sensibly agreed that I should hear what he had to say, and decide the case on any question of law which appeared reasonably to arise from the transcript and from the statutory provisions.

4. The result is that there are several matters to which I propose to address myself which were not squarely raised by the applicant. However Mr Sugden had an opportunity to answer all of the points made by the applicant and those which occurred to me during the course of the hearing. No injustice will be done by considering those matters; indeed, it would probably be an injustice to confine the applicant to those grounds which he finally committed to writing.

5. The evidence discloses that two police officers were in a police vehicle facing north on the traffic lights at Mount Street in Burnie where that street debouches onto the Bass Highway. They saw a small Hillman station wagon come from the Bass Highway and begin to travel south on Mount Street. They said that the station wagon had some boxes in it and it being approximately 1 am, they decided to follow it. Accordingly, the police car was manoeuvred into a "U" turn and proceeded back up the hill towards Upper Burnie. Whilst this was happening, a Commer van got between the Hillman station wagon and the police car. The police officers noticed that the Commer van was in the extreme left hand lane, and that near Aileen Crescent, which is a junction on the right of Mount Street, it went over towards the centre lane and then back to the extreme left lane again. According to the police officers it was "weaving" within the extreme left hand lane. The Commer van was travelling at about 30 kilometres per hour. For some reason the police officers directed their attention to this vehicle and lost interest in the Hillman. However the Commer van and the Hillman proceeded at a slow speed up Mount Street and at the top of the hill, the police car drew up to about level with the rear of the Commer van and the headlights were flashed and the blue lights were turned on. Shortly thereafter the flashing light on the Commer was seen to indicate a turn to the right and both the Hillman and the Commer turned right into Linton Street. The police car followed. In Linton Street the two vehicles executed a right hand turn into a driveway. The police car parked across the driveway and Constable MacDonald, who was the passenger, got out of the police car and approached the person seated in the driver's seat of the Commer van, ie the applicant. Two ladies had already alighted from one or other of the vehicles and were within the driveway. Constable MacDonald did not speak to the ladies. He approached the applicant and after some preliminary discussion as to which there was dispute he said, "I require you to submit to a breath test."

6. Constable McKenner, the driver of the police vehicle then arrived with an alco test 7310. Further conversation ensued, the upshot of which was that the applicant refused to take part in the breath test unless he was given a mouth piece sealed in a plastic bag and allowed to remove it himself. As the police had already produced two mouth pieces, they regarded this as unreasonable, and Constable MacDonald said to the applicant "You're under arrest for the purpose of going to the station for a breathalyser test".

7. There was then a struggle, in the course of which the applicant was handcuffed and the handcuffs tightened on his wrist. In the course of the struggle he called out to one of the ladies standing by, who was his daughter, to get his wallet and take charge of a tape recorder which was apparently in the vicinity and later said to be operating. During the hearing the applicant said that he wanted to play a tape recording to the police witnesses and ask them to identify their voices, but the application seems not to have been pursued, possibly because of some procedural confusion which occurred later. The applicant was forcibly taken to the police station, where he was permitted to fit a clean mouth piece to the breathalyser machine before using it. The reading was nil.

8. The applicant cross-examined the police officers at some length and with some success. At the second hearing he produced what he said was a transcript prepared from a tape recording made on the night of his arrest, and cross-examined from that. He got Constable MacDonald to admit that when he entered upon the property of the applicant's daughter (which was the house where the driveway was situated) he did not then have a belief that alcohol may have been present in the applicant's blood although he recognised it as a possibility. He further got Constable MacDonald to admit something which he had previously denied, namely that the applicant had been asked whether he had been drinking and had replied "No". Constable MacDonald then said that this answer did nothing to diminish his "equivocal belief". He admitted that he ran out of patience with the applicant and arrested him because he thought he had done all that could reasonably be done to administer a breath test. He agreed that the applicant may well have said, "If you give me the little packet I'll put it in myself". Constable MacDonald said later on that when he entered the property he had no reason to believe that there was alcohol in the applicant's blood. Subsequently he qualified this by saying that he had no reasonable grounds to believe that there was alcohol in the applicant's blood. He said that when the applicant said that he would not go to the police vehicle to do the test, but would do the test in the vehicle in which he was seated, he formed the opinion that the applicant was "most likely under the influence of alcohol", by reason of his behaviour and the fact that he was not in his opinion, totally coherent. He gave no evidence of smelling alcohol on the breath of the applicant, nor did Constable Mckenner.

9. In the course of his cross-examination the applicant several times referred to evidence to be given later and in fact put in two photographs and another exhibit. He was quite rightly refused permission to tender the transcript of the tape recording which he said had been made but it was not pointed out to him that he could tender the tape recording itself under certain circumstances. The applicant asked Constable McKenner what authority he had to enter upon private property, and his Worship ruled that he could not ask him that question as it was a matter of law. In any event, Constable McKenner replied that he believed he had a common law authority to enter onto any property until consent thereto was withdrawn by the owner]

10. The applicant in his "no case" submission inter alia submitted that the police officers had no right to require him to submit to a breath test when he was on private property, that it was ludicrous to say that they were following him by way of pursuit, that the police officers had no right to enter onto private property, and he cited some cases. The learned magistrate said that the propositions being put to him were contrary to the decision of the High Court in Halliday v. Nevill [1984] HCA 80; (1984-85) 57 ALR 331, and quoted from page 334. (Now reported in 155 CLR p 1).

11. On 28 November the learned magistrate ruled that there was a case to answer and published written reasons. He then said to the applicant:

"I have ruled there is a case for you to answer and now

this is your opportunity to present your case. You may

decide to say nothing with regard to the matter or you may

make an unsworn statement from where you stand. That will

not be on oath, nor could you be cross-examined in respect

of your statement or any other matter, or thirdly you may

go into the witness box as the other witnesses did and

give your evidence from there on oath and be cross-examined,

but whatever course you choose, you may of course

call other witnesses who would be required to give

their evidence however, on oath. Do you understand the

choice which is open to you at this stage?

"Applicant: I think I do."

12. There was further confused discussion and eventually the applicant said "I will proceed now and I will make an unsworn statement". He then asked to tender a plan and was permitted to do so. There was further confused argument and eventually the unsworn statement continued. The applicant then sought to read what he called the transcript of the tape recording taken on the night that he was arrested. The learned magistrate referred to the Queen v. Seymour a judgment of Chambers J (21/1968) and said that a person making an unsworn statement could tender documentary evidence, but that the transcript was not in itself admissible and therefore could not be tendered. The applicant then said that he had recorded everything that had happened on the night that he was arrested, right from the very first word, but nothing came of that.

13. At the conclusion of the unsworn statement, the learned magistrate found the charges proved. He gave reasons therefor.

14. A great deal of the applicant's submission to me was based on his contention that the magistrate should not have accepted the evidence of the police officers. Although the submissions that he made were not entirely without merit, I find that the magistrate was entitled to accept the evidence of the police officers and therefore entitled to find that the applicant was the driver of the motor vehicle on a public street. Indeed as to all but one of the factual findings of the learned magistrate I would not be prepared to allow the motion on the ground that those findings were not properly open to him. I do not wish to be taken as saying that I would have reached the same conclusions myself. I will refer to the exception later. There are however, several questions of law which were raised during the course of the hearing of the motion which I would wish to examine more closely.

15. A. The learned magistrate described a submission put to him by the applicant in these terms:

"that at the time that he was seated in the driver's

position of the Commer van on private land that he could

not then be said to be driving the vehicle within the

meaning of the Act."

"As to the second limb, that is that he was not driving

the vehicle whilst he was seated in it on private land I

advert to s.2(4) of the Road Safety (Alcohol and Drugs)

Act which contains a definition of driving a vehicle and

I hold that at all material times the defendant had a

sufficiently proximate nexus with that motor vehicle to

be aptly described as its driver within the meaning of

that definition, notwithstanding (1) that it is claimed

and I am prepared to accept for present purposes that the

immediate journey had concluded; and notwithstanding (2)

that the requirement to undergo a breath test was made

while the defendant and the police officers were on what

I accept for present purposes, to have been private land.

I am satisfied of those matters beyond reasonable doubt."

I do not doubt that it was open to his Worship to find that the applicant could, by virtue of sub.s. (4) of s.2 of the Act, be characterised as the driver of the vehicle whilst it was stationary in the driveway. However s.7A(1) reads as follows:

"A police officer may require any person who is driving

a motor vehicle on a public street, to undergo at or near

the place where the requirement is made a breath test and

for the purpose of enabling him to make such a request,

may if necessary direct that person by signal or otherwise

to stop his vehicle."

To be characterised as a driver on private land is not the same thing as being characterised as "a person who is driving a motor vehicle on a public street". His Worship therefore did not find that the requirement was made to such a person. He found that it was made to a driver on private land. Nor did he find that any direction to stop was given to the driver of the motor vehicle whilst it was on a public street. Indeed he accepted the evidence of Constable MacDonald to this effect:

"The Constable was about to overtake the vehicle in order

to pull him over when that Commer van made an indication

with lights that he was to turn into Linton Street."

There was no suggestion of any direction at any subsequent time. Mr Sugden submitted that the driveway of the house was in fact a public street because it was within the appropriate definition which reads:

"any street, road, lane, thoroughfare, footpath, bridge or

place, open to or used by the public or to which the

public have or are permitted to have access whether on

payment of a fee or otherwise."

He made me privy to an opinion of his by way of written submission and for that I am very grateful. However I am unable to conclude that there was any evidence that the driveway was in fact open to the public, and the photograph D2 which was put in evidence, strongly suggests that it was not because it appears to be a backyard entrance. The Justices of the High Court in Schubert v. Lee [1946] HCA 28; (1946) 71 CLR 589 at 592 said:

"...The words 'open to or used by the public' are apt to

describe a factual condition consisting of any real use

of the place by the public as the public - as distinct

from use by licence of a particular person or only casual

or occasional use. It may be necessary to distinguish

places open to members of the public as such from places

left open by the owner but obviously intended only for

the use of a particular description of person, for

examples visitors to his shop or other premises. Prima

facie the words of the section mean streets, andc, which

actually are open to or used by the public, so that there

is some need for protection of the public in the use of

such streets, andc."

There was no evidence of public user or public right to use the driveway in question.

In the reasons which he published when overruling the "no case" submission, his Worship observed that the defendant conditionally agreed to "abandon for present purposes any contention based upon the fact that he and the police officers were on private land when he was required to undergo a breath test". He made reference to Halliday v. Nevill (supra), so his Worship's observations may have been limited in scope to the problems posed by the application of that decision, but whatever its scope, it is an observation pregnant with error. The legal consequences of a fact cannot be waived or abandoned, and in any case one should be slow to rely on abandonment by an unrepresented person of a submission as to the law.

The first question which arises from the fact that the requirement was made on private land is whether such a requirement had any force in law. The complaint makes it clear that the prosecution relied on s.7A as the basis of both counts, and the case was fought on that basis, both here and below. The section was inserted into the Statute in 1982 and is the "random breath test" provision. It is plain on the face of subsection (1) that the only persons to whom a valid requirement or direction may be addressed are those who are driving motor vehicles on a public street.

The case of R. v. Jones (EJM) (1970) 1 All ER 209 is authority for the proposition that under s.2(1) of the Road Safety Act 1967 (UK) a requirement to take a breath test may be made "off the road" so long as it is made in the course of a chain of action following sufficiently closely on an observed driving on the road. The proposition apparently holds good for s.8 of the Road Traffic Act 1972 (UK) (see Lambert v. Roberts (1981) 72 Cr App R 223). However, those statutes are clearly distinguishable from the Tasmanian Statute partly because of their language, and partly because the right to make the requirement in the United Kingdom depends on observation of unacceptable driving on the road. S.7A authorises "random breath tests" and the mere fact of driving on a public street entitles the officer to give directions or make requirements. However, appropriate contemporaneity is necessary.

Both statutes refer to driving on a public street. Under the United Kingdom statute, the police action begins with the observation of behaviour giving reasonable cause for suspecting the commission of an offence. That observation must be made on a public street. Under s.7A of the Tasmanian Statute, the police action begins with the direction to stop. That also must be made on a public street. If no action is taken on the public street, the authority to require submission to a breath test never crystallises. That this was Parliament's intention is made clear by the difference between s.7A(1) and s.8(1). The policy is readily understandable.

An officer empowered to give directions to or make requirements of a driver in one place is not thereby authorised to do so in another.

I conclude that, because of the non-existence of the authorising circumstances, the requirement was invalid and that the conviction on count two was erroneous. As the conviction on count one has a necessary pre-condition of a valid requirement under s.7A (sub.s.(4)) that too cannot stand.

B. I would however, also observe that the police officer arrested the applicant immediately upon his failure to blow into the instrument proffered to him, (see p 15 of the magistrate's "no case" reasons). But when a person, by reason of sub.s.(4) of s.7, becomes liable to submit to a breath analysis, the police officer present is authorised to do no more than require him to submit to a breath analysis. It is only upon his failure or refusal to comply with that requirement that the officer is authorised to take him into custody. The very forceful arrest of the defendant was an unauthorised short-circuiting of this procedure. In the light of the subsequent conduct of the applicant and the breathalyser reading, it cannot be inferred that he would have refused to submit.

C. In my opinion, another error of consequence was the learned magistrate's advice to the defendant that he could make an unsworn statement. For the reasons which I publish as an appendix to these reasons, this was, in my view, an error of law which vitiated the trial. Further it could well have led the defendant, who had already adduced evidence, and indicated his intention to adduce further evidence, to adopt a procedure which disadvantaged him.

16. It is probably unnecessary to consider other matters argued on appeal. However, I do wish to say that, in my opinion Halliday v. Nevill (supra) ought to not be taken as a revelation of an incontrovertible legal proposition that police officers have an implied licence to enter upon driveways. The majority of the Justices in that case said at pp 6/7:

"While the question whether an occupier of land has

granted a licence to another to enter upon it is

essentially a question of fact, there are circumstances

in which such a licence will, as a matter of law, be

implied unless there is something additional in the

objective facts which is capable of founding a

conclusion that any such implied or tacit licence was

negated or was revoked; cf Edwards v. Railway Executive

(1952) AC 737, at p 744."

17. The following passage from Lord Porter's speech in the case cited is illuminating:

"There must, I think, be such assent to the user relied

upon as amounts to a licence to use the premises.

Whether that result can be inferred or not must, of

course, be a question of degree, but in my view a court

is not justified in lightly inferring it."

18. In determining whether the licence ought to be implied all the circumstances, including the nature of the driveway, the relationship between the citizens concerned and the property, and/or its owner, the time of day, the purpose for which a licence is sought to be implied, the nature of the power sought to be exercised (see Brennan J at p 17) and so on have to be considered. The saga of DPP v. Smith (1961) AC 290 still stands as a caution against irrebuttable presumptions of fact. There is no presumption of an implied licence. Where it is found to exist, it must have a basis in the evidence, or at least in the common behaviour of citizens of our community. The learned magistrate seems to have imputed consent to the owner as a matter of law, requiring no evidentiary basis, but the licence is implied not imputed. An imputation of a licence is a universal derogation from the property rights of the owner. Only Parliament can do that. I would not myself be prepared to infer that the defendant's daughter, in these circumstances, must be taken to have consented to police entry on to the property shown in D2. Of course, if there was no consent, express or implied, the police officers were trespassers and had no powers. For all these reasons, I quash the convictions.