Police v Wratten

[2005] NSWLC 2

Local Court of New South Wales

CITATION:	Police v Wratten [2005] NSWLC 2
JURISDICTION:	Criminal
PARTIES:	Police Adrienne Joy Wratten
FILE NUMBER:
PLACE OF HEARING:	Ballina Local Court
DATE OF DECISION:	07/15/2004
MAGISTRATE:	Magistrate C Bone
CATCHWORDS:	Drive motor vehicle - High Range Prescribed concentration of alcohol - Police breath test
LEGISLATION CITED:	Road Transport (Safety and Traffic Management) Act 1999 s13 s 14
CASES CITED:	R v Vatner 1992 29 NSWLR 311 r v McKeough NSWCCA 3rd Dec 2003 R v Phan NSWCCA 10 Dec 2003 DPP v Skewes SC 12 Nov 2002
REPRESENTATION:	Stephen Sivewright - Prosecutor Sgts W Larden & S Gerrish - Police Prosecutors Mr M Dakin Solicitor for Adrienne Joy Wratten
ORDERS:

Reasons for Decision

1    It is alleged against Adrienne Joy Wratten that she drove a motor vehicle at Ballina on 14th November, 2003, while the high range prescribed concentration of alcohol was present in her blood.

Background

2    The accused drove her car from a hotel in Ballina to her home in Oakland Avenue, Ballina, just before 10.30pm on 14th November, 2003. A police car followed her for a portion of the journey. The accused was subjected to a breath test, was arrested and taken to Ballina Police Station where a breath analysis revealed that she had alcohol in her blood and that the concentration was in the high range (0.175 grams of alcohol per 100 millilitres of blood). The police officers maintain that the breath test was conducted outside the accused’s property. The accused maintains that the test was conducted on her property. Evidence as to this all-important aspect of the case was taken during a voire dire hearing.

Prosecution evidence.

3    Const. Sivewright gave evidence as follows. He was on patrol in a police car with Const. Nixon. They saw a vehicle which travelled across the car park near the West Tower hotel. The vehicle went onto Kalinga Street. They moved to the rear of the vehicle and activated the revolving lights on the police car. The other vehicle did not stop. The vehicle then turned right into Oakland Avenue. Const. Sivewright turned on the siren of the police car. The other vehicle travelled about 400 metres after this before stopping in the middle of the road in front of the driveway leading to 13 Oakland Avenue. The police vehicle was stopped and Const. Nixon alighted, approached the driver, said something to the driver and then put the alchometer in the window. A few seconds later the vehicle drove up to the car port. Const. Nixon then came back to Const. Sivewright, handed him the accused’s driver’s licence and advised that she had been arrested.

4    Const. Nixon’s evidence as to observations of the accused’s vehicle was similar to that of his colleague. He indicated that the accused’s vehicle stopped in the middle of the road although slightly closer to the left hand kerb. He alighted from the police vehicle after it stopped and then went up to the accused’s vehicle. He said to the accused “turn it off” but she did not. He then said “you’ve been stopped for random breath testing” and handed the accused the alchometer. She gave a small puff of breath and the machine showed .150. Const. Nixon said “you’re under arrest, you will be taken to Ballina Police Station”. The accused turned into the driveway and went to the car port. Const. Nixon followed her and when she stopped her vehicle he opened the door, turned the engine off and took the keys. They had a brief conversation and the accused then said that she wanted to go inside. Const. Nixon told her that she could not. He then told the accused to alight from the car and to bring her licence. She complied with request and was taken to the police vehicle.

Defence evidence

5    The accused gave evidence as follows. She left the hotel, drove along Kalinga Street and the turned right into Oakland Avenue. When she was some distance down Oakland Avenue she became aware of a vehicle behind her. Its lights were on high beam. She reached Lewis Place, which is about two houses distances from her home at 13 Oakland Avenue, and turned on her indicator. At this time she became aware that the following vehicle was a police car as she saw flashing lights and heard a siren. She realised that the police were interested in her. The accused did not stop because she was in the process of turning. She stopped momentarily when on her property in her driveway, put the vehicle in first gear, and then drove to the car port. She stopped the car and turned off the engine. She then alighted from her car. She was approached by a police officer who said “breathe into this”. The other police officer was out the front near the letter box.

6    Russell Jung, the accused’s next door neighbour, gave evidence as follows. He was at home, in the toilet, at around 10.30pm on 14th November, 2003, when he heard the sound of a siren. As he came out of the toilet, the sound got louder. His front door was open and lights shone through. He went to the door, looked out and saw the accused’s car parked at the front of her driveway with a police car parked diagonally behind with its lights shining through his door. The accused’s car was outside her property. He walked to the kitchen. The accused’s car came up her driveway. Mr. Jung then saw a police officer at the back door. The accused reached in , obtained her bag and then blew into the breath-testing device.

7    A statement from Kelly Jung, Mr. Jung’s daughter, was admitted into evidence. Ms. Jung indicated that she was asleep in bed when she heard a siren out the front. She stood at the side window and saw the accused and a police officer standing at the side of the accused’s car which was parked under the car port. They were there for about five minutes before going to the police car which was out the front.

Legal principles

8 Pursuant to ss.13 and 14 of the Road Transport (Safety and Traffic Management) Act of 1999 a police officer is permitted to require a motorist to submit to a breath test and, if that test indicates that the motorist might have the prescribed concentration of alcohol in his or her blood, the police officer is entitled to arrest the motorist and then require him or her to undergo a breath analysis. Section 17(d) of the Act, however, provides an exception to the general rule that a police officer has the power to require a motorist to submit to a breath test. It states:

A police officer cannot require a person to undergo a breath test or submit to a breath analysis at that person’s usual place of abode

9    When the issue of where the test took place has been raised, it is encumbent upon the prosecution to establish beyond any reasonable doubt that the motorist was not required to undergo the test at the motorist’s usual place of abode (see R. v. Vatner 1992 29 NSWLR 311)

10 Once the court has accepted that the test took place at the motorist’s place of abode the evidence relating to any subsequent breath analysis is inadmissible. In most cases, evidence which has been obtained illegally or improperly may nevertheless be admitted if the court exercises the discretion to do so (see s.138 of the Evidence Act, R. v. McKeough, NSWCCA, 3rd December, 2003, and R. v. Phan, NSWCCA, 10th December, 2003) but in DPP v. Skewes (Sperling, J., Supreme Court of NSW, 12th November, 2002) the court indicated that a breath analysis certificate obtained in a case in which the prosecution had not proved that the breath test had taken place other than at the motorist’s usual place of abode was inadmissible. His Honour indicated that no question of discretion arose in such circumstances.

Conclusion

11    It is the accused’s evidence that she did not stop her vehicle until she was on her property. She then stopped for an instant to put her car in first gear before driving up to the car port where she was breath tested. This evidence is contrary to the evidence of the two police officers and Mr. Jung. Each of those people say that the accused stopped her vehicle outside her property. The police officers say that she was stopped for sufficient time to be breath tested. Mr. Jung says that after leaving the toilet he saw lights coming through his front door, he went to the door and when he looked through he could see the police vehicle and the accused’s vehicle. Both were stationary and both were on public property. Mr. Jung then walked from the front door to his kitchen and, when he looked out, saw that the accused’s vehicle was coming up the driveway. This description clearly supports the police officers’ version that the accused’s vehicle was stationary outside her property for a considerable period of time, certainly long enough for a breath test to be required and undertaken.

12    The accused’s evidence is that the revolving lights and siren of the police vehicle were not seen and heard by her until she was nearly to her driveway. The police officers’ evidence is that the revolving lights were activated in Kalinga Street and the siren about 400 metres from the accused’s home. Mr. Jung’s evidence suggests that the siren must have been activated quite some distance along Oakland Avenue as it became a lot louder as he was listening to it. This aspect of the evidence suggests that the substantial amount of alcohol which the accused had consumed may well have affected her ability to recall the detail of things which happened that night.

13    It is clear that Const Nixon took the alchometer with him when he went to the carport and it is obviously the case that Mr. Jung saw it there at that some stage. I am, however, satisfied that the test did not take place there. There was, on the evidence of the two officers and Mr. Jung, plenty of time for the test to be administered before the accused went onto her property and it is virtually inconceivable that the a police officer would not have demanded at that time that the accused undertake the test. That, after all, was the reason that the police officers why the police officers required the accused to pull over.

14    I am satisfied that the test was administered outside the accused’s place of abode.