Breath testing laws have been with us in all states in territories for a long time. In the ACT it is an offence if someone who has been the driver of a motor vehicle on a road or a road related area refuses to provide a sample of breath for analysis (s22 Road Transport (Alcohol and Drugs) Act 1977).
So, what was controversial about Mr Gonyley’s conviction for refusing a breath test as he got out of the driver’s side of his car in the carpark of Jerilderie Court and why did he appeal to the ACT Supreme Court? On reading the judgment, it was clear that one of the issues was whether the car park as a “road related area”. There is a definition of “road related area” in the Road transport Act. Relevantly it includes “an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles”. There is caselaw on the meaning of that phrase and ones similar to it. There is also a statutory definition of “public place”. The judgment traverses all these issues and also the usual cases on statutory construction.
All the while, I was still puzzled about how the carpark at Jerilderie Court couldn’t possibly be a public place and road related area. Then the penny dropped (doh!) that Jerilderie Court is a public housing apartment building in the ACT suburb of Reid (not the Local Court at Jerilderie). The building is apparently notorious (google is my friend) for being the residential address of several local drug dealers.
Ultimately Mr Gonyley won his appeal, but not on the “high brow” basis of statutory construction or consideration of the meaning of the various phrases. The Supreme Court found that the Magistrate had fallen into error because there was insufficient evidence to prove beyond reasonable doubt that the Jerilderie Court carpark was a road related area.
Creative commons acknowledgment for the photograph.