Alexander Fairweather v Daniel Kelly - [2023] NTLC 26

CITATION:	Alexander Fairweather v Daniel Kelly [2023] NTLC 26
PARTIES:	Alexander FAIRWEATHER
v
Daniel KELLY
TITLE OF COURT:	LOCAL COURT
JURISDICTION:	CRIMINAL
FILE NO(s):	22229075
DELIVERED ON:	18 December 2023
DELIVERED AT:	Katherine
HEARING DATE(s):	26 October 2023
DECISION OF:	Acting Judge Murphy
CATCHWORDS:

CRIMINAL LAW — Evidence — Judicial discretion to admit or exclude evidence.

Section 23(1)(a) of the Traffic Act 1987 (NT) created an offence for a person to drive motor vehicle

with a low range breath alcohol content – Section 28(1)(a) of the Traffic Act 1987 (NT) created offence

for person to drive motor vehicle while whilst there was a prohibited drug in their body.

Section 29AAL of the Traffic Act 1987 (NT) created a right for a person who is in custody after having undergone a breath analysis saliva test or given a sample of blood under the Traffic Act 1987 (NT) to ask to communicate with a medical practitioner with regards an examination or blood test and imposed an obligation upon police to make a arrangements that are reasonable in the circumstances for that person to communicate with a medical practitioner for that purpose.

Section 29AAU of the Traffic Act 1987 (NT) allows evidence pertaining to inter alia a breath analysis or drug analysis to be tendered by certificate in court proceedings and the matters referred to in that certificate and facts upon which they are based constitute prima facie evidence in that proceeding.

Where the defendant has been charged with offences under sections 23(1)(a) (low range drink driving) and 28(1)(a) (drug driving) of the Traffic Act 1987 (NT) and certificates of analysis confirming

that at the relevant time the defendant’s breath alcohol reading (BrAC) was over the prescribed breath alcohol limit and there was a prohibited drug in the defendant’s body — Where the defendant

after having been subjected to a breath analysis and a saliva test had requested a blood test and was

then held in custody for 7 hours — Whether the police complied with their obligation to make a

arrangements that were reasonable in the circumstances for the defendant to communicate with a

medical practitioner to make arrangements for the taking of a blood sample from the defendant —

Where the prosecution sought to tender certificates of analysis confirming that at the relevant time

the defendant’s BrAC reading was over the prescribed BrAC limit and there was a prohibited drug in

the defendant’s body — Whether there exists a residual common law discretion to exclude lawfully

obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudicial

misuse where admission would render the defendant’s trial unfair — Whether the defendant’s trial is

unfair in relevant sense if the analysis certificates were admitted into evidence.

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WORDS AND PHRASES — “Bunning v Cross discretion”, “forensic unfairness”, “general unfairness discretion”, “unfair trial”.

Interpretation Act 1978 (NT)
Traffic Act 1987 (NT)

Traffic Regulations 1999 (NT)

Police v Dunstall [2015] HCA 26
Police v Dunstall [2014] SASFC 85
Police v Hall [2006] SASC…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Alexander Fairweather v Daniel Kelly

Details

AGLC: Alexander Fairweather v Daniel Kelly [2023] NTLC 26
Case: [2023] NTLC 26
Decision Date: 18 December 2023

CaseChat Overview and Summary

The case of Alexander Fairweather v Daniel Kelly involved the defendant, Daniel Kelly, charged with criminal damage, low range drink driving, drug driving, and driving without due care. Kelly pleaded guilty to charges of criminal damage and driving without due care, but not guilty to charges of low range drink driving and drug driving. The admissibility of the toxicology analysis certificate and the breath analysis certificate was contested. The court found that the police contravened section 29AAL of the Traffic Act by not making reasonable arrangements for Kelly to communicate with a medical practitioner for a blood test. The court excluded the toxicology analysis certificate and the breath analysis certificate from evidence due to the police breach of section 29AAL and the unfairness discretion. The court found that the police's failure to make reasonable arrangements for Kelly to communicate with a medical practitioner rendered his statutory right nugatory and deprived him of a fair trial according to law. The court also found that the inadequate training of police members with regards section 29AAL of the Traffic Act triggered the Bunning v Cross discretion.

Orders