Police v O'Brien

[2008] NSWLC 12

Local Court of New South Wales

CITATION:	Police v O'Brien [2008] NSWLC 12
JURISDICTION:	Criminal
PARTIES:	Police O'Brien
FILE NUMBER:
PLACE OF HEARING:	Bega Local Court
DATE OF DECISION:	06/18/2008
MAGISTRATE:	Magistrate C Bone
CATCHWORDS:	PCA - usual place of abode
LEGISLATION CITED:	Sections 13, 15, 17 Road Transport (Safety and Traffic) Management Act 1999 Section 138 Evidence Act 1995
CASES CITED:	Bunning v. Cross DPP v. Skewes (2002 NSWSC 1008) DPP v. Linnett (2006 Supreme Court 1086, Buddin, J.). Germolus v. Higginbotham (NSWSC unreported 12th November, 1993) Haberhauer v. Simek (1991 9 Petty Sessions Review 4235) In the Appeal of Lodge (NSWDC, Phelan DCJ, 24th April, 1992) Merchant v. The Queen Shenton v Hayhurst (NSWSC unrep 9 October 1992)
TEXTS CITED:
REPRESENTATION:	Sgt. D. Pearce, police prosecutor, for the prosecutor Ms. R. Chalmers, solicitor, for the accused
ORDERS:

Reasons for Decision

1    It is alleged against the accused, Matthew James O’Brien, that he drove a motor vehicle at Bega on 25th December, 2007, while there was present in his blood the high range prescribed concentration of alcohol (HRPCA). The solicitor for the accused indicated at the commencement of the case that there would be an objection to the admissibility of the breath analysis certificate and that that objection would be based on the fact that the breath test and arrest of the accused had occurred at his home. A deal of the evidence which I subsequently heard was taken on the “voire dire” in order to properly consider the objection.

The facts

2    The facts which I accept for the purpose of considering the objection are as follows. The accused was, at the time of the offence, twenty three years of age having been born in Bega on 7th March, 1984. He lived in the family home at Lot 152 Peakhill Road, Bega, from the time of his birth until April, 2006. At that time he moved to Canberra for employment purposes and, in January, 2007, he moved to Sydney, again in the course of his employment as a radio technician. Upon his arrival in Sydney he moved into a unit at 48 Garden Street, Alexandria and still remains in residence at that unit. He returned to Bega from time to time to visit his father who still lives at Lot 152 Peakhill Road. The accused’s bedroom at that house is available to him, he retains some of his belongings at the house and he has a car garaged at the house (that car has been there for four years). He has a key to the house and, when in attendance, has unfettered access to the house.

3    The accused had arranged to spend the Christmas holidays of 2007 at the family home in Bega. He travelled from Sydney to Bega, arriving on 23rd December, 2007. He intended to return to Sydney on 6th January, 2008, so that he would be ready to return to work on 8th January.

4    On the evening of 24th December, he went out in a car which was registered in the name of his father (I will refer to the father as Mr. O’Brien). At about 2am on 25th December, police received certain information about the manner in which the vehicle was being driven. As a result, Constables Jackson and Bailey attended Lot 152 Peakhill Road. They were greeted by Mr. O’Brien. He was advised that the driver of the vehicle had allegedly committed an offence and he was, as the registered owner, required to provide the “name and home address” of the person who was driving the car at 2am. He replied “Matthew James O’Brien of Garden Street, Alexandria”. The accused, who was in the house, was then spoken to by the officers. The detail of that conversation, which included references to his personal circumstances, was objected to by the defence on the grounds that the accused had not been cautioned, and was not pressed by the prosecution. The accused was subsequently told that he was obliged to provide a sample of his breath. He did so, the test was positive, he was arrested and taken to Bega Police Station. As a result of a breath analysis, he was charged with HRPCA. While at the police station, Const. Jackson and the accused had some informal conversation, the accused indicating that he was born and bred in Bega and that he had left for employment purposes; the accused expressed concern as to how he would return to Sydney.

Statutory provisions under traffic legislation

5    Section 13(1) of the Road Transport (Safety and Traffic) Management Act allows an officer to require a motorist to undergo a breath test. Section 14 allows an officer to arrest a person who fails the test and s.15 allows a police officer to require a person who is so arrested to undergo a breath analysis. Section 17 of the Act places certain restrictions on an officer’s general right to require a motorist to undergo a breath test. Section 17(d) states: “A police officer cannot require a person to undergo a breath test …………… at that person’s home”.

Submissions

6    The prosecution submission, in a nutshell, was that Lot 152 Peakhill Road was not the accused’s home and, that being the case, the breath test and arrest were undertaken lawfully and properly. The police prosecutor submitted, in addition, that if I concluded that the breath test had been administered at the accused’s home, the court had a discretion as to whether the certificate relating to the breath analysis should be admitted into evidence and that I should exercise my discretion in favour of the prosecution.

7    The defence submission, in a nutshell, was that Lot 152 Peakhill Road was the accused’s home and, that being the case, the breath test was not administered in accordance with the law and subsequent evidence is inadmissible with no question of discretion arising.

The issues

8    There are three issues for me to consider:

· (a) was the breath test administered at the accused’s home?,

· (b) if it was, is evidence of what subsequently followed inadmissible or does the court have a discretion to admit the evidence?,

· (c) if I have a discretion to admit or reject the evidence, how should I exercise it?

The concept of “home”

9    “Home” is not defined in the legislation. The word is one which would probably be used by most people on most days of their lives. Among its meanings, according to the Penguin Macquarie Dictionary is - “ a house, or other shelter, that is the fixed residence of a person, a family or a household”.

10    The legislation which prevents a police officer from requiring a person to undergo a breath test at his or her home has been with us, in one form or another, for a number of years. The legislation initially referred to the person’s “usual place of abode”, then to the person’s “place of abode” and now to the person’s “home”. There has been a number of cases involving the administration of a breath test in which these concepts have been considered by the superior courts. In almost all of those cases, the issue has been whether an area adjacent to the motorist’s residence was a part of the motorist’s “usual place of abode”, “abode” or “home”. The cases include Haberhauer v. Simek (1991 9 Petty Sessions Review 4235), DPP v. Skewes (2002 NSWSC 1008) and DPP v. Linnett (2006 Supreme Court 1086, Buddin, J.). The issue which I am considering (i.e. whether a person’s temporary place of residence is his or her “home”) is something which has been considered much less frequently. I was referred, in the course of submissions, to In the Appeal of Lodge (NSWDC, Phelan DCJ, 24th April, 1992). I have been unable to obtain a copy of that judgement but it is said to indicate that a person may have more than one “place of abode”. It should be noted, in passing, that a decision of a District Court judge is not binding upon a magistrate as the District Court is not a superior court. The issue was raised, but not conclusively determined, in the Supreme Court decision of DPP v. Linnett. The facts in that case were that the motorist had a permanent on-site van at a caravan park. He did not live at the caravan park but went there with his family for holidays. He was stopped by police officers while he was driving on a road which was within the caravan park. The road was used by people who lived in, or visited, the caravan park. The breath test was administered at the place at which the motorist had been stopped. The magistrate held that the test had been administered “at his place of abode”. The issue which chiefly occupied the mind of Buddin, J. was whether the road was a part of the motorist’s “place of abode” rather than whether the van which he was occupying was his “place of abode”. His Honour touched upon the latter matter and said:

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 .

11    The word “home” is used in a variety of ways. I have lived in country towns since I went to Inverell as a magistrate in 1985. Many of the young people who were educated in those towns would leave after completing their secondary education. They would generally leave for educational or employment purposes. Those who returned for a holiday with family would invariably describe such a visit as “coming home”. Yet the same young people would also describe their residences in Sydney or elsewhere as “home” (e.g. “I’m going home straight after work”). In DPP v. Linnett, Buddin J. referred to comments made by the relevant Minister when introducing the provisions containing the prohibition upon breath testing at a person’s residence. It is clear that the parliament of the time was giving a deal of weight to the concept of a person’s home being the person’s castle.

12    I am firmly of the view that a person can have more than one “home” for the purposes of this legislation and I am satisfied that Lot 152 Peakhill Road, Bega was the accused’s “home” from the time he arrived there on 23rd December, 2007, until the time he departed on 6th January,

Is evidence of events following the administration of the breath test at the accued’s home inadmissible or may the evidence be admitted in the exercise of discretion?

13    A firm conclusion as to the admissibility of a breath analysis which occurred after a motorist was breath-tested at his residence was reached in DPP v. Skewes. In that case, decided in 2002, Sperling , J., said:

……………….. 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.

14    An equally firm, but completely different, conclusion on exactly the same point was reached in Haberhauer v. Simek. In that case, decided in 1991, Sully, J., said:

The notion that a breach of s.4E(5)(d) 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 (1971 126 CLR 414).

15    His Honour later said:

In my opinion, a breach of s.4E(5)(d) entails that evidence ………………. is not rendered , by reason of the antecedent breach, irrelevant and inadmisable to proving a driving offence contrary to s.4E. Such evidence is, in my opinion, tainted by the antecedent breach to the extent that the judicial officer to whom the evidence is tendered has a discretion to reject the evidence as having been unlawfully obtained. That is, of course, a discretion to be exercised judicially.

16    This approach appears to be supported by Loveday, AJ, in Germolus v. Higginbotham (NSWSC unreported 12th November, 1993) when he said:

This is not a case where police officers had sought to avoid the application of s.4E(5)(d) by arresting the respondent with a view to taking him from his usual place of abode for the purposes of administering the test. If it had been such a case, then the learned magistrate would have been entitled to find not that the test was illegal, but that the evidence should be excluded on the grounds of fairness to the respondent.

17    The issue was mentioned by Buddin, J. at the end of his judgement in the 2006 case of DPP v. Linnett but because he had concluded that the breath test had not been administered at the motorist’s “place of abode” he said “it is not necessary to reach a concluded view upon this aspect of the matter”.

18    Despite the divergence of views among the Supreme Court judges, the principle appears to have been established in Merchant v. The Queen. In that case, the motorist had contended that there was no evidence that the breath-test had been undertaken by use of a device as approved by the legislation and the subsequent breath analysis certificate was therefore inadmissable. The Court’s decision was based primarily upon the status of the breath-testing device but reference was made to the circumstances which apply in the case of a test being administered outside the scope of the legislation. Barwick, C.J., said:

But of course if the test had been unlawfully administered, the tribunal before whom it was sought to prove its results …………… would be bound to consider whether or not in point of discretion in all the circumstances the evidence should be received.

19    A magistrate is obliged to follow the principles and interpretations of law stated by a judge or judges of a superior court. I am satisfied that the principle relating to the admissibility of the evidence of the breath analysis certificate is as stated by Barwick, CJ, in the High Court as, in the event of a conflict between judgements given in superior courts, a magistrate is bound by the decision of the court of the highest jurisdiction.

20    The evidence in the current case was obtained improperly in that the breath-test was administered at the accused’s home but that does not render it inadmissible. The court may admit the evidence in the exercise of discretion.

Exercise of discretion

21 Evidence which is obtained illegally or improperly may still be admitted but only if the party seeking to admit it satisfies the court that it should exercise a discretion to admit the evidence; in considering whether to exercise that discretion, the court’s approach is governed by s.138 of the Evidence Act.

22 Section 138(1) of the Evidence Act of 1995 states

Evidence that was obtained:


(a) improperly or in contravention of an Australian law, or


(b) in consequence of an impropriety or of a contravention of an Australian law,


is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in which the evidence was obtained.

23 Section 138(3) of the Act states:

Without limiting the matters that the court may take into account under subsection (1), it is to take into account:


(a) the probative value of the evidence, and


(b) the importance of the evidence in the proceeding, and


(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and


(d) the gravity of the impropriety or contravention, and


(e) whether the impropriety or contravention was deliberate or reckless, and


(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and


(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and


(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

24    The Australian Law Reform Commission, when commenting upon the corresponding provision in the draft Evidence Bill of 1987, stated:

It applies in both civil and criminal trials. It reflects, with some modifications, the present exclusionary discretion known as the rule in Bunning v. Cross . The main difference is the placing of the onus on the party seeking to have the illegally or improperly obtained evidence admitted.

25    A court’s task, in these situations, generally involves some sort of balance between two competing principles. The first is that relevant evidence should be admitted because it is in the clear interests of society that wrong-doers are brought to justice. The second is that police officers should not be encouraged to take “short cuts” when obtaining evidence and, by admitting evidence which has been obtained improperly or illegally, courts are merely emboldening officers who consider that all is fair in obtaining convictions.

26    In the present case, the court is dealing with an offence of moderate seriousness. It is an offence for which an offender could generally expect to be fined and disqualified from driving for at least twelve months. The evidence which is the subject of the objection is crucial to the prosecution case. In some cases of this type which have been considered by the superior courts, the police officers had been either very reckless, at least, or deliberate, at worst, in attempting to avoid the law which prevents an officer from insisting that a motorist takes the breath-test at his or her home. In such cases, the balance would invariably fall in favour of rejection of the evidence. In the present case, however, the officers have not acted in defiance of the laws of the land in the sense that they knew that the accused was at his home but went ahead with the test anyway or were grossly reckless in their approach to the issue. Their inquiries suggested that the accused’s home was in Sydney. The police officers were advised by Mr. O’Brien that the accused’s home was an address in Alexandria. Constable Jackson was acting in the honestly held belief that the accused was not at his home when he required the accused to undergo the breath test. It was not until he was at the police station that the officer learned that the accused had been raised in Bega and it was not because of any negligence or recklessness on the part of the officer that that information was not sought or given earlier.

Conclusion

27    Under the circumstances, I am satisfied that I should admit the breath analysis certificate into evidence.