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A man found guilty of refusing breath testing has been exonerated on appeal, with a judge ruling that it should not have been possible to find adequate proof of the act being illegal in the unusual circumstances. Special Magistrate Theresa Warwick found Nyok Gonyley guilty in the ACT Magistrates Court last year of three offences under the ACT's Road Transport Act. The charges were of refusing to undergo an alcohol screening test, refusing to provide a breath sample to police, and driving while disqualified. The case against Mr Gonyley was that in September 2018, police officers patrolling Jerilderie Court in Reid noticed a vehicle reversing in a car park at the complex. Mr Gonyley, who did not dispute that he was a disqualified driver, got out of the driver's side. He then refused to undergo an alcohol screening test and provide a breath sample, Ms Warwick found. Despite all this, a small but important detail remained. The magistrate could only find Mr Gonyley guilty of the charges if there was also proof beyond reasonable doubt that the man had been driving in a place defined by ACT law as a road or "a road-related area". In finding Mr Gonyley guilty, Ms Warwick said the car park in question was a road-related area. Arguing that this was wrong, Mr Gonyley launched an appeal in the ACT Supreme Court. The action succeeded last week, when Justice Chrissa Loukas-Karlsson overturned the guilty verdicts. The judge said Ms Warwick's verdicts had relied upon the complex car park being a road-related area because it was an "open place, to which the public has access". Justice Loukas-Karlsson said there was no real difference between this wording and the relevant phrasing in the Road Transport Act, which described a category of road-related areas being places "open to or used by the public". She found that these definitions only applied to places with access available to the public in general, rather than just a select group of people like residents and invited guests. The latter of the two appeared to be the case with the Jerilderie Court car park. "The magistrate's finding that Jerilderie Court was a road-related area was in error ... in that there was insufficient evidence to prove the matter beyond reasonable doubt," Justice Loukas-Karlsson said in a judgment published on Tuesday. Mr Gonyley's lawyer, Adrian McKenna of McKenna Taylor, told The Canberra Times the judge's decision demonstrated the intricacies of the law. "This case shows the importance of getting experienced criminal law advice about exactly what drink-driving laws do and do not capture," Mr McKenna said. "It just goes to show that something that appears on the face of it to be a crime actually might not be." Mr McKenna said while a car park at the local shops would almost certainly be covered by drink-driving laws, it could be a different story at a townhouse complex car park. He said it was not a simple thing to determine, though, because the question of whether a car park was a road-related area needed to be determined in each case. In some cases, private car parks had been used so frequently by others they in essence became "de facto" public areas, and were therefore viewed under the law as generally accessible by the public.

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