Bunning v Cross

[1978] HCA 22

HIGH COURT OF AUSTRALIA

Barwick C.J., Stephen, Jacobs, Murphy and Aickin JJ.

BUNNING v. CROSS

(1978) 141 CLR 54

14 June 1978

Evidence

Evidence—Illegally obtained—Statutory offence—Driving under influence of alcohol—Compulsory breath and blood tests—Grounds for requiring submission to test—Grounds not satisfied—Whether sample obtained illegally—Whether evidence admissible—Error in obtaining evidence not wilful—Discretion to exclude—Public policy—Road Traffic Act, 1974 (W.A.), ss. 63-68, 70, 71.

Decisions

1978, June 14.
The following written judgments were delivered: -
BARWICK C.J. The applicant for special leave to appeal in early December 1975 was driving a car on the Stirling Highway at evening outward bound from Perth. A constable of police on highway patrol as a patrolman, having observed what he thought was an erratic course pursued by that car, checked its speed and found it to be in excess of the prescribed speed for the area. He stopped the car and spoke to the applicant about the speed at which he had been driving. The patrolman then smelt liquor on the applicant's breath. He asked him to step out of the car. The applicant began to do so but the car commenced to move forward because, having an automatic transmission, it was in the drive position and apparently the hand brake had not been applied. The patrolman managed to apply the foot brake and turn off the ignition. The applicant then alighted from the car, but when stepping on to the footpath at the rear of the car staggered back on to the road. When asked had he been drinking, the applicant said that he had had about three beers. (at p57)

2. The patrolman did not ask him then, or for that matter at any time subsequently, to submit to what is described as a "preliminary test" in relation to the presence of alcohol in the blood. However, he asked the applicant to accompany him to the road patrol section to undergo a breathalyzer test. He did so because he considered him to be under the influence of liquor. There the patrolman asked the applicant to take a breathalyzer test which the applicant was willing to do. A qualified operator carried out a breath test which gave a calculated reading of 0.190 per cent concentration of alcohol. (at p57)

3. The applicant was then charged with driving the car at an excessive speed and also with having driven it "whilst under the influence of alcohol to such an extent as to be incapable of having proper control of" it contrary to s. 63 (1) of the Road Traffic Act, 1974 (W.A.) ("the Road Traffic Act"). (at p57)

4. These charges were heard by a stipendiary magistrate in the Court of Petty Sessions in Perth in May 1976. The magistrate found the first charge proved but dismissed the second charge. In that connexion, he rejected the evidence of the result of the breathalyzer test as inadmissible and indicated that, on the other material before him, he was not prepared to hold that the applicant, when driving the car, was under the influence of alcohol to the extent necessary to support the charge. In the course of giving his reasons for rejecting the evidence of the breathalyzer test, the magistrate found that the patrolman prior to the administration of that test had no "objectively reasonable suspicion" that the applicant was driving under the influence of alcohol so as to be incapable of controlling the car. (at p57)

5. It is convenient at this point to set out the relevant statutory provisions. The Road Traffic Act contains the following provisions:

"63. (1) A person who drives or attempts to drive a motor vehicle while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle commits an offence, and the offender may be arrested without warrant." "64. (1) A person who drives or attempts to drive a motor vehicle while the percentage of alcohol in his blood equals or exceeds 0.08 per centum, commits an offence." "66. (1) Where a patrolman has reasonable grounds to believe that - (a) a person was the driver or person in charge of a motor vehicle the presence of which occasioned, or of which the use was an immediate or proximate cause of personal injury or damage to property; or (b) a person has, while driving a motor vehicle, committed an offence against this Act of which the driving of a motor vehicle is an element; or (c) a person while driving a motor vehicle, had alcohol in his body, the patrolman may require that person to provide a sample of his breath for a preliminary test in accordance with the directions of the patrolman. (2) Where - (a) it appears to a patrolman that a preliminary test indicates that the percentage of alcohol in the blood of a person equals or exceeds 0.08 per centum of alcohol; or (b) a person having been so required, refuses or fails to provide, or appears to a patrolman to be incapable of providing a sample of his breath for a preliminary test or refuses or fails to provide, or appears to a patrolman to be incapable of providing, a sample of his breath in sufficient quantity to enable a preliminary test to be carried out; or (c) a patrolman has reasonable grounds to believe that a person has committed an offence against s. 63, by reason of his being under the influence of alcohol, a patrolman may require that person to provide a sample of his breath for analysis or to allow a medical practitioner to take a sample of his blood for analysis, pursuant to the provisions of sub-sections (4), (5) and (7) of this section, and for the purposes of this subsection may require that person to accompany a patrolman to an office of the Authority, police station or some other place, and may require that person to wait at any such office, police station or place. (3) A person who is required to supply a sample of his breath for a preliminary test or for analysis shall comply with that requirement by providing the sample of his breath into approved apparatus in accordance with the directions of a patrolman or an authorized person, as the case may be." "67. (1) A person who fails to comply with any requirement of a patrolman made pursuant to the provisions of section 66 commits an offence. Provided that this section does not apply to a medical practitioner merely because he refuses to co-operate in the taking of a sample of any person's blood for analysis. Penalty: A fine of not less than one hundred dollars or more than five hundred dollars and, in any event, the court convicting that person shall order that he be disqualified from holding or obtaining a driver's licence for a period of not less than three months or more than twelve months." "68. (1) Where, pursuant to the provisions of section 66, a person provides a sample of his breath for analysis, the analysis shall be made by breath analysing equipment operated by an authorized person in accordance with the regulations. (2) At the conclusion of the analysis the authorized person shall determine in accordance with the regulations whether the breath analysis equipment is in proper working order. (3) If the breath analysing equipment is determined not to be in proper working order the authorized person may again require the person to provide a sample of his breath for analysis or to allow a medical practitioner to take a sample of his blood for analysis under subsection (2) of section 66. (4) If the breath analysing equipment is determined to be in proper working order - (a) the result indicated by the breath analyzing equipment at the conclusion of the analysis shall be the analysis result and shall be deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided: and (b) the authorized person shall complete, sign, and hand to the person a statement in writing of the analysis result (which may be by way of an indication on a scale) and of the date and time of the analysis." "70. (1) Without affecting the admissibility of any other evidence that may then be given, in any proceeding for an offence against section 64, or for an offence against this or any other Act in which the question whether a person was or was not, or the extent to which he was, under the influence of alcohol at any material time is relevant, evidence may be given of - (a) the provision of a sample of breath by the person for analysis, if provided within four hours after the driving, use or management of a motor vehicle that gave rise to the alleged offence; (b) the analysis of the sample of breath by breath analysing equipment operated by an authorized person; (c) the determination that breath analysing equipment was in proper working order; . . . (f) the analysis result obtained pursuant to section 68 or 69. (2) In any proceeding such as is mentioned in subsection (1) of this section, a certificate in the prescribed form - (a) purporting to be signed by the Director of the Government Chemical Laboratories, certifying that a person therein named is, or was at the material time, an authorized person; (b) purporting to be signed by the Director of the Government Chemical Laboratories, certifying that a person therein named is, or was, at the material time, an analyst; (c) purporting to be signed by a technologist of the Public Health Department, certifying that identified sampling equipment comprises the prescribed items, that those items have been prepared by him and are sterile and fit for the purpose of taking a sample of blood for analysis if used not later than a specified date; (d) purporting to be signed by a medical practitioner, certifying that an identified sample of blood was taken from a named person, on a date and at a time therein specified, in accordance with the regulations using identified sampling equipment, which was received in a described condition from an identified person; or (e) purporting to be signed by an analyst, certifying either both of the following, namely, that an identified sample of blood taken from a named person was analysed for alcohol in accordance with the regulations, and the analysis result obtained from the analysis, is prima facie evidence of the matters therein certified or set out, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was such Director, or was such a technologist, or was a medical practitioner or analyst. (3) In any proceeding such as is mentioned in subsection (1) of this section, evidence by an authorized person that - (a) the apparatus operated by him pursuant to section 68 was breath analysing equipment within the meaning of section 65; (b) breath analysing equipment was operated by him in the prescribed manner and all regulations relating to analysis by breath analysing equipment were complied with; or (c) breath analysing equipment was determined by him in accordance with the regulations to be in proper working order on the occasion of its operation, is prima facie evidence of that fact. (4) Nothing in this section shall be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act." "71. (1) In any proceeding such as is mentioned in subsection (1) of section 70, the percentage of alcohol present in the blood of a person at any time which is or may be material in the proceeding shall be calculated, having regard to that time, the time of the person's last drink containing alcohol taken at or before the time which is or may be material in the proceeding, and the time at which the sample of the person's breath or blood was provided or taken for analysis, by varying the analysis result referred to in section 68 or section 69 by such amount, if any, necessary to give effect to the presumption that the percentage of alcohol in the blood of a person increases at the rate of 0.016 per centum per hour for a period of two hours after his latest drink containing alcohol and, after that period, decreases at the rate of 0.016 per centum per hour. . . . (4) In any proceeding such as is mentioned in subsection (1) of section 70, the percentage of alcohol calculated to have been present in the blood of a person at any time under the preceding provisions of this section shall be conclusively presumed to have been present in the blood of that person at that time." "65. For the purposes of section 63 to 73, inclusive - . . . 'breath analysing equipment' means apparatus of a type approved by the Minister for ascertaining the percentage of alcohol present in a person's blood, by analysis of a sample of his breath; . . . 'preliminary test' means a test of a sample of a person's breath by means of apparatus of a type approved by the Minister, for the purpose of providing an indication of the percentage of alcohol in the blood of the person or an indication as to whether or not the percentage of alcohol in the blood of a person equals or exceeds a predetermined percentage." (at p61)

6. It is appropriate that I also set out at this point in my reasons the relevant provisions of the Justices Act, 1902 (W.A.) as amended:
"197. When - (a) a person who feels aggrieved as complainant, defendant, or otherwise by the decision of any Justices shows or the Attorney-General shows, by affidavit to a Judge sitting in Court or chambers, a prima facie case of error or mistake in law or fact on the part of the Justices, or that the Justices had no jurisdiction in giving the decision or exceeded their jurisdiction in giving the decision, or that the penalty or sentence imposed was, according as the person aggrieved or the Attorney-General may allege, inadequate or excessive in the circumstances of the case; . . . the Judge may . . . grant the applicant (hereinafter called the 'appellant') an order (hereinafter called an 'order to review') calling upon the party interested in maintaining the decision, and also, if the Judge for any special reason so directs, upon the Justices to show cause, at a time to be specified in the order to review or so soon thereafter as the matter can come on for hearing, why the decision should not be reviewed." "198. (1) An order to review may be made returnable before the Supreme Court sitting as the Full Court or before a single Judge sitting in Court." "205. On the return of the order to review, the Court or Judge may, on a consideration of the evidence and materials adduced and brought before the Justices, and if the Court or Judge thinks fit, of any further evidence either oral or by affidavit, discharge such order to review, or may confirm, vary, amend, rescind, set aside, or quash the decision appealed against and any order, conviction, warrant, or other proceeding founded thereon, and may remit the case for hearing or rehearing to the said Justices or to any other Justices, with or without any direction in law, and may prohibit the Justices and all other persons concerned from proceeding or further proceeding in respect of the decision, and may make such other order as to such Court or Judge seems just, and may also, for such purposes or any of them and without prejudice to the generality of the powers hereinbefore conferred, exercise all or any of the powers or jurisdiction which the Court possesses or might exercise upon certiorari, mandamus, prohibition or, habeas corpus: Provided that notwithstanding that the Court or Judge may be of opinion that any point raised by the order to review might be decided in favour of the appellant, discharge the order if he or it considers that no substantial miscarriage of justice has occurred. Provided further that the power to vary or amend the order or conviction founded upon the decision appealed against shall include a power to vary, reduce or increase the penalty or sentence imposed by the Justices upon such order or conviction." "206. (1) Subject to this Act the Court or Judge may make such order as to costs as it or he deems just." "206A. There shall be no appeal to the Full Court from any determination of a single Judge made on the return of any order to review, but the Judge on such return may, if he thinks it desirable, refer such order to review for hearing and determination by the Full Court at the request of any party thereto."

"206F. Any conviction, sentence or order affirmed, amended, varied, adjudged, imposed or made by the decision of the Supreme Court or a Judge thereof in relation to any order to review, may be enforced (subject to any variation made therein) by any Justices (whether the Justices in respect of whose decision the order to review was granted or not) in the same way as if it had been adjudged, imposed, or made by them, and any Justices may issue, make, adjudge, or impose all such summonses, warrants, orders, convictions, and sentences as may be necessary to carry into effect any directions contained in any decision of the Supreme Court or Judge given in relation to any order to review, and no action or proceedings shall be taken against any Justices for enforcing any such conviction, sentence, or order notwithstanding any defect therein." (at p63)

7. The prosecutor (the respondent) obtained an order to review the decision of the magistrate dismissing the charge of driving under the influence of alcohol. Upon review under s. 205 the Supreme Court (Jones J.) held the magistrate to be in error in rejecting the evidence of the breathalyzer test as inadmissible but remitted the case to the magistrate to exercise his discretion whether to admit or reject the evidence because of the manner in which it was obtained. (at p63)

8. On the matter being returned to the magistrate, he exercised the discretion which the Supreme Court had said was open to him and excluded the evidence, thus maintaining his decision to dismiss the charge. (at p63)

9. The respondent again obtained an order to review which came before the Full Court of the Supreme Court. This was in no sense by way of appeal from the former order of the Supreme Court. It was on a different ground to the former review. Formerly, the evidence had been rejected as inadmissable. In the case of the second order to review, the evidence was accepted as admissible but rejected in point of discretion. Thus, what was in issue in the second review was the propriety of the exercise of the discretion to reject admissible evidence. (at p63)

10. By majority, the Full Court held that the magistrate had erred in law in his exercise of discretion. The matter was remitted to the magistrate "to be dealt with according to law". (at p63)

11. The learned judge in the first instance held the administration of the breathalyzer test to be unlawful in the sense that a coercive demand for the taking of the test was not authorised by the Road Traffic Act under the provisions I have quoted. The judge did not consider whether the test was taken voluntarily and not under the coercion of a demand by the police officer. (at p63)

12. There was material on which that question could have been considered. It appears, in my opinion, from the transcript of the magistrate's notes that the patrolman did not cause the applicant to engage in the breathalyzer test by any direction or command, or by any representation or any trick or improper behaviour. Nor did the authorized person who operated the breath analysing equipment by any such act cause the applicant to co-operate in the operation of that equipment. Nothing in ss. 63 to 73 inclusive of the Road Traffic Act in my opinion, precludes the voluntary submission of a person to the breathalyzer test or makes the validity of such a test voluntarily undergone dependent upon an antecedent use of the preliminary test. What s. 66 does is to empower the patrolman to require or command submission to the preliminary test and to provide a sample of breath for analysis by the breathalyzer apparatus or, in appropriate circumstances as stated in the sections, to require or command the provision of a sample of breath without there having been a preliminary test. Failure of compliance with the patrolman's requirement made in conformity with the provisions of the Act attracts the penalties provided by s. 67. But nothing in the Act precludes a patrolman or an authorized person from asking for a sample of breath of a person willing to give it or from operating the breathalyzer apparatus in relation to such a sample. There is, in my opinion, nothing unlawful in the making of such a test with the co-operation of a person willing without being required or commanded to take it. (at p64)

13. Of course, a fine line divides such a willingness from a willingness the product of coercive conduct: and in deciding whether the willingness was uncoerced, it is proper to remember the apparent authority of a patrolman and the situation of the motorist who has been "taken" to the police station. But, in this case, there is no finding of any coercive conduct on the part of the patrolman or authorized person: nor, in my opinion, ought there to have been. Rather, the impression the magistrate's notes creates in my mind is that the applicant, confident of his own innocence of wrongdoing, was quite willing if not anxious to take the test which, it seems to me, it was likely that he believed would clear him. (at p64)

14. However, no appeal having been brought from the first decision of the Supreme Court, it must now be accepted, when considering the propriety of the magistrate's exercise of discretion, that the administration of the breathalyzer test was enforced by the officer in virtue of his office as a constable of police and that the officer's demand that the applicant undergo the test was not warranted by the statute and thus was without legal authority. (at p64)

15. I therefore turn to consider the propriety of the magistrate's decision now under review on the assumption that, in the sense I have indicated, the administration of the breathalyzer test was unlawful, i.e. that it was taken under the coercion of an unauthorized demand. (at p64)

16. The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected. There are other conditions in which admissible evidence may be excluded by an exercise of judicial discretion: for example, where a comparison of the smallness of the probative value of the evidence with its considerable prejudice to the fair trial of the matter justifies its exclusion. But no such considerations arise in this case. Undoubtedly, the result of the test was relevant to the charge brought under s. 63 (1) or under s. 64 (1). It establishes the latter and is cogent in relation to guilt under the former. (at p65)

17. This question of the competition of the public interest in conviction with the unfairness to the applicant in connexion with the taking of the test, the magistrate did not consider. If he had, the only conclusion to which, in my opinion, he could properly have come, was that there was no unfairness to the applicant in the circumstances and manner of the obtaining of the evidence as to the alcoholic content of his blood. There was nothing whatever to out-balance the public interest in the enforcement of the law. (at p65)

18. I have had the advantage of reading the reasons for judgment prepared by my brothers Stephen and Aickin. I agree entirely with their observations on the proper principles to be followed in exercising a discretion to exclude admissible evidence because of the circumstances or manner in which it was obtained or came into existence. I also agree with their conclusion as to the impropriety of the magistrate's exercise of discretion. (at p65)

19. The remaining question is whether the Full Court was correct in remitting the case without a specific direction to convict the applicant. The Court, in my opinion, erred in not doing so. There remained, in my opinion, no room for the exercise of any discretion to reject the evidence. In remitting the case to the magistrate, the Full Court should have directed him to convict the applicant and to impose an appropriate penalty. (at p65)

20. I would grant special leave to appeal, vary the order of the Full Court by adding a direction to convict, and dismiss the appeal. (at p65)

STEPHEN AND AICKIN JJ. The history of the prior proceedings in the courts of Western Australia which have led up to this appeal are described in the reasons for judgment of the Chief Justice, where the relevant legislation is also set out. Our own references to the facts and to the legislation need therefore be no more than adequate to explain our approach to this appeal. (at p65)

2. The appellant was stopped by police in a suburb of Perth, Western Australia, while driving home. He was stopped because of the speed at which and the manner in which he was driving his car. When questioned he told the police that he had been drinking and, to use neutral terms, he then accompanied them to a police station and there submitted to testing by means of a "breathalyzer" breath analyzing instrument. He was found to have an excessive blood-alcohol reading. (at p66)

3. The Western Australian legislation empowers police to require a motorist to go to a police station and there submit to such a test in only three cases: if he is first required to undergo an "on the spot" preliminary test, involving the use of a portable "alcotest" appliance, and he fails or refuses to do so or is incapable of doing so; if, having submitted to an "alcotest", it indicates an excessive percentage of alcohol in his blood and, thirdly, if the police have reasonable grounds to believe that the motorist has been driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle. (at p66)

4. None of these circumstances existed in the present case. The appellant was not asked to, nor did he, submit to a preliminary "alcotest". The magistrate before whom the charges against him were heard found on the evidence that the police had no reasonable grounds to believe that the appellant had been driving under the influence of alcohol to the relevant extent and this finding was not the subject of any appeal. Indeed it was described by Jones J., on the hearing of the first order to review, as "clearly right". It follows that the police were not authorized by the legislation to require the appellant to undergo a "breathalyzer" test. (at p66)

5. The evidence of the result of the "breathalyzer" test was critical to any conviction of the appellant on the charge of driving under the influence of alcohol. Before the magistrate it had been submitted that, although admissible, his Worship should in his discretion reject the evidence of the test because, inter alia, it had been illegally obtained. The magistrate found the evidence was illegally obtained and ruled that it was therefore inadmissible, not treating it, as counsel for the appellant had submitted that he should, as admissible evidence in respect of which he might exercise a discretion to reject it. (at p66)

6. It was upon the return of an order nisi to review, instituted by the prosecution following the magistrate's dismissal of the charge, that the matter then came before Jones J. The sole ground for that order was that the magistrate had erred in holding this evidence to be inadmissible. (at p66)

7. The magistrate was clearly wrong in holding that the evidence, because unlawfully obtained, was for that reason alone necessarily inadmissible and Jones J. so held. His Honour correctly ruled that the unlawfulness associated with the obtaining of the evidence did not render it inadmissible but did confer upon the magistrate a discretion to reject the evidence. His Honour spoke of evidence being so excluded in the exercise of that discretion "if it unfairly prejudices the accused". We should say here that, for reasons to be discussed later, we do not regard this as correctly describing the nature of this discretion. (at p67)

8. While upholding the magistrate's conclusion that no lawful ground existed for requiring the appellant to submit to the "breathalyzer" test his Honour observed that the magistrate, because of his erroneous view that unlawfulness spelt inadmissibility, had never addressed his mind to the question whether the evidence of the result of the test, initially admissible, should, as a matter of discretion, be rejected. He concluded that it was for the magistrate and not for him to determine how that discretion should be exercised and, while indicating that had it been for him he would not have rejected the evidence, he concluded that the case should be remitted to the magistrate. The order nisi to review was accordingly made absolute, the magistrate's decision was set aside and the case remitted to the magistrate to determine "in accordance with this judgment and according to law". (at p67)

9. When the case again came before the magistrate following the order of Jones J. he turned his mind to the exercise of discretion, exercised it in favour of rejection of the evidence of the test result and accordingly once more dismissed the charge. A further oder nisi to review was then obtained by the prosecution on the following grounds:
"that the learned Magistrate erred in law in that he
(a) misdirected himself as to the appropriate criteria to exclude admissible evidence namely, evidence of the results of an analysis of a sample of the respondent's breath for alcohol, (b) wrongly excluded the said evidence." This order nisi was made returnable before the Full Court, which apparently heard argument not only upon the manner in which the magistrate exercised his discretion and the criteria he employed in doing so but also upon the quite distinct question whether or not, when the appellant took the "breathalyzer" test, he did so quite of his own volition; if so, no question would have arisen of his being unlawfully required to submit to the test and hence no question of there being any discretion to reject evidence because it was the product of an unlawful police requirement. We do not think that the grounds of the order nisi can be read as including this ground. As a matter of construction par. (b) is merely consequential to par. (a) and asserts that the application of the right criteria should result in the admission of the evidence, not that there is some independent and unspecified ground of admissibility. (at p68)

10. Those grounds do not in our opinion cover an argument that Jones J. was wrong in deciding that the evidence was unlawfully obtained. His order that the matter be remitted to the magistrate "to determine in accordance with this judgment and according to law" was no doubt an interlocutory order in the sense that it did not finally dispose of the rights of the parties. Under the Justices Act, 1902-1973 (W.A.) no appeal lay to the Full Court of the Supreme Court from the decision of Jones J. and no application for special leave was made to this Court. It is not necessary to decide whether the correctness of his decision could have been challenged before the Full Court on a second order to review the magistrate's decision if that ground had been properly taken in the order to review, because it was in fact not taken. Under the Justices Act the Supreme Court has power to amend the grounds in the order to review but no application was made to that Court, nor to this Court to make such an amendment. (at p68)

11. Accordingly the only matters before the Full Court were, what were the proper criteria for the exercise of the discretion to exclude relevant evidence unlawfully obtained and, if they thought fit, what should be the result of the application of those criteria to the present case? (at p68)

12. In the Full Court Burt C.J., in his dissenting judgment, in fact upheld the magistrate's finding but went on to say that in any event he would not have entertained the prosecution's submission until satisfied (as he clearly was not) that that issue, the voluntary quality of the test, "had not been joined and put to rest by the decision on the first appeal", that is, by the decision of Jones J. (at p68)

13. The judgments of the majority in the Full Court are by no means identical in approach. Each reviews two distinct issues. On the first of these, whether the taking of the test was a free and voluntary act on the part of the appellant and hence not the product of illegal or irregular police conduct, Lavan S.P.J. concluded that the appellant had "freely and voluntarily submitted himself" to the test and that the evidence was "not illegally obtained and is freely admissible". Despite this conclusion his Honour nevertheless went on to consider the matter of discretionary rejection of evidence in the sense, as we would understand it, of that general discretion which in every criminal trial the Court possesses to exclude particular admissible evidence if its reception will operate unfairly against the accused. This view of the relevant exercise of discretion no doubt logically followed from his Honour's earlier conclusion that the test evidence was not illegally obtained. His Honour expressly distinguished the facts in Reg. v. Ireland (1970) 126 CLR 321 and treated the case as one involving no question of evidence unlawfully obtained. His Honour regarded the exercise of discretion as dependent upon it being shown that "the strict rules of admissibility would operate unfairly against the accused". So viewed, he concluded that there was no proper basis upon which the magistrate could correctly have exercised a discretion to reject the evidence. He therefore upheld the appeal. (at p69)

14. As will appear below, we think that, consistently with the settled law in this country, as represented by the judgment of Barwick C.J. in Ireland's Case, the discretion which the magistrate was called upon to exercise was one calling for the application of different criteria from those discussed by Lavan S.P.J. and that it did not turn simply upon the question of fairness to the accused, or upon unfair prejudice to the accused, as Jones J. had expressed it. (at p69)

15. Brinsden J., the other member of the majority, also considered not only the magistrate's exercise of his discretion but, as well, whether or not the appellant voluntarily submitted to the test. However as to the latter of these issues he concluded, unlike Lavan S.P.J., that there was evidence to support the magistrate's finding that the test was only undertaken because the appellant believed that he was lawfully obliged to undergo it. (at p69)

16. On the matter of discretion Brinsden J. reviewed the authorities and cited the relevant passage from Ireland's Case as a general statement of the law on the topic. At the same time he referred to and cited passages from a number of English authorities which deal with a Court's inherent discretion to exclude evidence the admission of which would operate unfairly against the accused. At the end of his references to the cases he said:

"Mere unlawfulness does not require the exclusion of the evidence. It is, I think, on the authorities clear that it is necessary to find in the factual background something additional, that is, whether the evidence was obtained oppressively or by false representations, or a trick, threat or bribe or something of that sort."

He concluded that in his exercise of discretion the magistrate had acted upon wrong principles and that it was therefore open to the Court to review the magistrate's exercise of discretion. This he proceeded to do, concluding that the result of the test should have been received into evidence. His Honour therefore allowed the appeal and would have remitted the case to the magistrate to be dealt with in accordance with the law, observing that this would involve the conviction of the accused. (at p70)

17. The precise basis of Brinsden J.'s judgment is somewhat difficult to discern. He concludes that the magistrate acted on wrong principles and "wrongly exercised his discretion in refusing to consider the evidence". He does not expressly substitute his own exercise of that discretion, as he could have done under the Justices Act, 1902-1973 (W.A.), nor does he expressly direct the magistrate to convict. What he said was: "the matter should be remitted to him to deal with in accordance with the law which in view of the nature of the evidence will involve the conviction of the respondent". In these circumstances it is not clear to us whether he was exercising his own discretion and intending to direct the magistrate to convict or was concluding that there was no evidence on which the magistrate could exercise his discretion in favour of excluding the evidence. We say nothing for the moment concerning the principles by which his Honour directed his own exercise of discretion. The order of the Full Court allowing the appeal included an order that the matter be remitted once again to the magistrate "to be dealt with according to law". Its effect was to require the magistrate to admit into evidence the result of the test. (at p70)

18. The outcome is, in a sense, a curious one. The judgment and order of Jones J. contemplated that, because the test evidence had been unlawfully obtained, there should be an exercise of discretion as to whether or not that evidence should be rejected as unfairly prejudicing the appellant. The purported exercise of discretion then undertaken by the magistrate was set aside by the Full Court and the case remitted to him in terms precluding him from the exercise of any discretion. Yet of the majority in that Court only Brinsden J. accepted the factual basis giving rise to that discretion, namely the illegal way in which the test evidence was procured and only he may perhaps have entered upon the consideration of the exercise of any discretion. The appellant has consequently, as things now stand, been denied consideration of whether or not the discretion should be exercised, and this despite the order of Jones J. (at p70)

19. We should say, at this stage, that it is not clear to us, in view of his reference to certain English authorities, of his apparent adoption of the criterion of fairness to the accused as dominant in the exercise of that discretion and of the passage quoted above, that Brinsden J. regarded the discretion in the way required by Ireland's Case (1970) 126 CLR 321 . In the Full Court the dissenting judgment of Burt C.J. did clearly enough apply the principles of Ireland's Case and in doing so found no fault with and would not have disturbed the magistrate's exercise of discretion (which, however, the majority judgments and the resultant order of the Full Court had set aside). The Chief Justice would simply have dismissed the appeal. (at p71)

20. The proper course in these circumstances must be either to allow the magistrate's exercise of his discretion to stand if satisfied, as was Burt C.J., that "no ground exists upon which the Court should now say that he was wrong" or, if not so satisfied, then for this Court itself to exercise the discretion by reference to those criteria which the authorities in this country, and in particular Ireland's Case, have established as proper for consideration in such a case. It is with reluctance that we adopt the second of these two courses; reluctance because of two considerations. First, because to do so is to interfere with the exercise of a discretionary judgment by the magistrate, one which Burt C.J., having a clear appreciation of what was called for by Ireland's Case, nevertheless concluded should be left undisturbed; secondly, because of the advantages which the magistrate enjoyed over this Court in the exercise of discretion, advantages not confined to his encounter at first hand with the parties and witnesses but extending also to what must be his intimate acquaintance with local circumstances relating to law enforcement, a matter germane to the proper exercise of this discretion. Nevertheless, a close examination of his reasons leads us to conclude that his Worship did not give proper effect to relevant criteria and that his exercise of discretion cannot be allowed to stand. (at p71)

21. The substance of his Worship's reasons for his exercise of discretion appear from the written reasons for decision which he gave following the remission of the case to him pursuant to the order of Jones J. Those reasons lead off from the proposition that, although unlawfully obtained, the evidence was admissible subject only to a discretionary power to exclude it. His Worship then refers to Reg. v. Ireland as the only really relevant case and cites from it the appropriate passage from the reasons for judgment of the Chief Justice. He regards the "breathalyzer" testing as on all fours with the taking of photographs in that case and later describes the police requirement that the appellant take that test as "unfair and irregular as well as unlawful". He then refers to two English decisions, speaks of the case before him as involving "an unconscious trick" and of the ease with which the police might have administered a preliminary test, discards as irrelevant the cogency of the test result and the high blood alcohol content which it disclosed, makes further reference to his view that there was "in this case inherent unfairness", cites a passage from the judgment of Sangster J. in Evans v. Sparrow (1973) 6 SASR 519, at pp 526-527 and concludes by saying that "in the light of the above comments I refuse in my discretion to admit the evidence of the breathalyzer result". (at p72)

22. Despite his Worship's citation of the relevant passage from the judgment of the Chief Justice in Reg. v. Ireland (1970) 126 CLR 321 we do not understand his discretion as in fact having been exercised by reference to the principles there expressed. The Chief Justice there said (1970) 126 CLR at p 335 :

"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."

That statement represents the law in Australia; it was concurred in by all other members of the Court in Reg. v. Ireland and has since been applied in a number of Australian cases. Its concluding words echo the sentiments expressed long ago by Knight Bruce V.C. when, in a different yet relevant context, he said, (Pearse v. Pearse (1846) 1 De G &Sm 12 (63 ER 950, at p 957) ):
"The discovery and vindication and establishment of truth are main purposes certainly of the existence of Courts of Justice; still, for the obtaining of these objects, which, however valuable and important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination, . . . Truth, like all other goods things, may be loved unwisely - may be pursued too keenly - may cost too much." (at p72)

23. The statement of principle in Ireland's Case differs from some statements of principle overseas but reflects much of what was said by Zelling J. when Ireland's appeal was before the Full Court of the Supreme Court of South Australia (Reg. v. Ireland (1970) SASR 416, at pp 444-448 ). That judgment of Zelling J. in turn cites extensively from the judgment of Kingsmill Moore J. in People v. O'Brien (1965) IR 142 at pp 148-162 , where a far-reaching survey of authority is undertaken. (at p73)

24. There exists a marked contrast between, on the one hand, the approach manifest in Ireland's Case and also in cases decided in the Irish and Scottish courts, of which the judgment of the Lord Justice-General, speaking for seven members of the High Court of Justiciary, in Lawrie v. Muir (1950) SLT 37 is among the most explicit as to the principles involved, and on the other hand that of English and Canadian courts and of their Lordships in the Judicial Committee. In Kuruma v. The Queen (1955) AC 197 , Lord Goddard C.J., speaking for their Lordships in the Judicial Committee, appears to acknowledge as the only basis for exclusion of evidence illegally obtained that familiar discretion, applicable in all criminal trials, to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. It was of this discretion that Lavan S.P.J. spoke in the present case. In Wendo v. The Queen (1963) 109 CLR 559, at p 562 , Dixon C.J. said that he did not believe that Kuruma's Case had put at rest "the controversial question whether evidence which is relevant should be rejected on the ground that it is come by unlawfully or otherwise improperly". That it had not been put at rest is apparent from what is now the Australian law on the subject, founded upon the passage which we have cited from Barwick C.J. in Ireland's Case (1970) 126 CLR, at p 335 . (at p73)

25. As we understand it, the law in Australia now differs somewhat from that in England. What Lord Goddard C.J., speaking for their Lordships, said in Kuruma's Case reflects the latter. Whatever may initially have been the authority of Ireland's Case in the light of the earlier decision of their Lordships in Kuruma (see the observations of J. D. Heydon "Illegally Obtained Evidence" (1973) Criminal Law Review 603, at p. 607) we have no hesitation in following the principles established in Ireland's Case, and this for the reasons which we later discuss. (at p73)

26. According to Kuruma the discretion to be exercised when real evidence is sought to be tendered in a criminal trial is no different from, is indeed but an instance of, that general discretion which always exists to exclude admissible evidence when to admit it will be unfair to the accused. Perhaps the most common instance of such a discretion arising is when the evidence in question is of relatively slight probative value but is highly prejudicial to the accused. Kuruma treats the case of real evidence unlawfully obtained as merely a further instance which opens the way to the exercise of this same discretion. Quite recently Lord Edmund-Davies, in recounting the arguments of counsel, spoke, we think withoug any disapproval, of the case of unlawfully obtained real evidence, in that case a breathalyzer test result, as depending on "the application of the ordinary principles of the common law illustrated by such cases as Kuruma v. The Queen". (Spicer v. Holt (1977) AC 937, at p 1004 ). More recently still, in Jeffrey v. Black (1978) QB 490 Lord Widgery C.J., in a case involving evidence procured by an unlawful search, applied Kuruma's Case on the admissibility of the evidence and went on to describe the relevant discretion as no more than that general discretion "which every judge has all the time in respect of all the evidence which is tendered by the prosecution". It was a discretion to be exercised when it would be "unfair or oppressive" to allow particular evidence to be called by the prosecution but was applicable only to "very exceptional situations". (at p74)

27. The contrast between these statements of principle and that enunciated in Ireland's Case (1970) 126 CLR 321 becomes apparent as soon as the objects sought to be attained by the exercise of the discretion, as stated in the judgment of Barwick C.J. in Ireland's Case (1970) 126 CLR, at p 335 , are examined. What Ireland involves is no simple question of ensuring fairness to an accused but instead the wighting against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration. (at p75)

28. Since it is with these matters of public policy that the discretionary process called for in Ireland is concerned it follows that it will have a more limited sphere of application than has that general discretion to which Lord Widgery refers, which applies in all criminal cases. It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon C.J. put it in Wendo's Case (1963) 109 CLR, at p 562 , unlawful or improper conduct). Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called "real evidence", such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on. (at p75)

29. The relevance of the competing policy considerations to which we have referred becomes of especial importance in an age of sophisticated crime and crime detection when law enforcement increasingly depends upon electronic surveillance and eavesdropping, the unannounced search of premises or of the person and upon scientific methods, whether of indentification, by fingerprints or voiceprints, or of ascertainment of bodily states, as by blood alcohol tests and the like. In many such cases the question of fairness does not play any part. "Fair" or "unfair" is largely meaningless when considering fingerprint evidence obtained by force or a trick or even the evidence of possession of, say, explosives or weapons obtained by an unlawful search of body or baggage, aided by electronic scanners. There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society's right to insist that those who enforce the law themselves respect it, so that a citizen's precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A discretion exercisable according to the principles in Ireland's Case serves this end whereas one concerned with fairness may often have little relevance to the question. (at p75)

30. Several passages from earlier cases exemplify the principle which finds expression in Ireland's Case. In People v. O'Brien (1965) IR, at p 160 Kingsmill Moore J. said:

"I am disposed to lay emphasis not so much on alleged fairness to the accused as on the public interest that the law should be observed even in the investigation of crime."

In Lawrie v. Muir (1950) SLT 37, at pp 39-40 (in a passage later cited by Lord Hodson, speaking for their Lordships in the Judicial Committee, in King v. The Queen (1969) 1 AC 304, at p 315 ) the Lord Justice-General, Lord Cooper said: "From the standpoint of principle it seems to me that the law must strive to reconcile two highly important interests which are liable to come into conflict - (a) the interest of the citizen to be protected from illegal or irregular invasions of his liberties by the authorities, and (b) the interest of the State to secure that evidence bearing upon the commission of crime and necessary to enable justice to be done shall not be withheld from courts of law on any merely formal or technical ground. Neither of these objects can be insisted upon to the uttermost. The protection of the citizen is primarily protection for the innocent citizen against unwarranted, wrongful and perhaps high-handed interference, and the common sanction is an action of damages. The protection is not intended as a protection for the guilty citizen against the efforts of the public prosecutor to vindicate the law. On the other hand the interest of the State cannot be magnified to the point of causing all the safeguards for the protection of the citizen to vanish, and of offering a positive inducement to the authorities to proceed by irregular methods." (at p76)

31. In King v. The Queen (1969) 1 AC 304 their Lordships do indeed, while applying Kuruma (1955) AC 197 so enlarge the matters to be considered under the rubric of unfairness to the accused, a concept which they observe to be "not susceptible of close definition", that it closely approaches what was said in Ireland's Case (1970) 126 CLR 321 . Their Lordships agreed with Lord MacDermott C.J. who had said, in Reg. v. Murphy (1965) NILR 138, at p 149 , that unfairness to the accused was to be judged "in the light of all the material facts and findings and all the surrounding circumstances. The position of the accused, the nature of the investigation, and the gravity or otherwise of the suspected offence, may all be relevant". Their Lordships concluded by a phrase which perhaps savours more of the Ireland approach than that of Kuruma: they spoke of "conduct of which the Crown ought not to take advantage". (at p76)

32. If, then, for Australia the law on this topic is as stated in Ireland's Case and affirmed in Merchant v. The Queen (1971) 126 CLR 414, at pp 417-418 , and if, accordingly, it is by reference to large matters of public policy rather than solely to considerations of fairness to the accused that the discretion here in question is to be exercised, it becomes necessary to state, with such precision as the subject will allow, criteria upon which this discretion is to be exercised. This cannot, we think, be done in the abstract but only by reference to the case in hand. Otherwise the exercise of judicial discretion may become fettered by rules, seemingly apt enough when first conceived but inappropriate to all the varied circumstances with which courts will be confronted in the future. (at p77)

33. We have already summarized his Worship's reasons for his particular exercise of discretion. In our view that exercise miscarried because of misconceptions about the matters which should be taken into account and, perhaps, an excessive concern with "unfairness", which appears to us to play no part in this case. (at p77)

34. His Worship in his reasons refers to an "unconscious trick" and appears throughout to be largely concerned with the concept of fairness to the accused. We would agree with those members of the Full Court who were unable to discern anything unfair in what occurred; to our minds unfairness does not enter into this case, any more than it should in a case of the unlawful search of person or premises. If a "breathalyzer" test, properly performed and with all attendant safeguards observed, discloses an excessive level of alcohol in a motorist's blood it is in no sense "unfair" to use it in the conviction of the motorist, just as it is surely not "unfair" to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being "planted" on the accused in the course of the search. (at p77)

35. These are cases into which unfairness does not enter at all. They are, however, cases in which the considerations referred to in Ireland's Case (1970) 126 CLR 321 may be of the greatest relevance. The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature's safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty. In appropriate cases it may be "a less evil that some criminals should escape than that the Government should play an ignoble part" - per Holmes J. in Olmstead v. United States (1927) 277 US 438, at p 470 (72 Law Ed 944 at p 953) . Moreover the courts should not be seen to be acquiescent in the face of the unlawful conduct of those whose task it is to enforce the law. On the other hand it may be quite inappropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. (at p78)

36. The first material fact in the present case, once the unlawfulness involved in the obtaining of the "breathalyzer" test results is noted, is that there is here no suggestion that the unlawfulness was other than the result of a mistaken belief on the part of police officers that, without resort to an "on the spot" "alcotest", what they had observed of the appellant entitled them to do what they did. The magistrate himself described what occurred as an unconscious trick, a phrase which, whatever its precise meaning, is at least inconsistent with any conscious appreciation by the police that they were acting unlawfully. This impression is consistent with the evidence as a whole; no deliberate disregard of the law appears to have been involved. The police officers' erroneous conclusion that the appellant's behaviour demonstrated an incapacity to exercise proper control of his car may well have been much influenced by what they observed of his staggering gait. Unlike the magistrate, they were unaware that the appellant suffered from a chronic condition of his knee joints which could, apparently, affect his gait. If the unlawfulness was merely the result of a perhaps understandably mistaken assessment by the police of the inferences to be drawn from what they observed of the appellant's conduct this must be of significance in any exercise of discretion. Although such errors are not to be encouraged by the courts they are relatively remote from the real evil, a deliberate or reckless disregard of the law by those whose duty it is to enforce it. (at p79)

37. The second matter to be noted is that the nature of the illegality does not in this case affect the cogency of the evidence so obtained. Indeed the situation is unusual in that the evidence, if admitted, is conclusive not of what it demonstrates itself but of guilt of the statutory offence of driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle. (at p79)

38. To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist. (at p79)

39. Where, as here, the illegality arises only from mistake, and is neither deliberate nor reckless, cogency is one of the factors to which regard should be had. It bears upon one of the competing policy considerations, the desirability of bringing wrongdoers to conviction. If other equally cogent evidence, untainted by any illegality, is available to the prosecution at the trial the case for the admission of evidence illegally obtained will be the weaker. This is not such a case, due to the mistaken reliance of the police, when they first intercepted the applicant, upon what they thought to be their powers founded upon s. 66 (2) (c) of the Act. (at p79)

40. A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question. A deliberate "cutting of corners" would tend against the admissibility of evidence illegally obtained. However, in the circumstances of the present case, the fact that the appellant was unlawfully required to do what the police could easily have lawfully required him to do, had they troubled to administer an "alcotest" at the roadside, has little significance. There seems no doubt that such a test would have proved positive, thus entitling them to take the appellant to a police station and there undergo a "breathalyzer" test. Although ease of compliance with the law may sometimes be a point against admission of evidence obtained in disregard of the law, the foregoing, together with the fact that the course taken by the police may well have been the result of their understandably mistaken assessment of the condition of the applicant, leads us to conclude that it is here a wholly equivocal factor. (at p80)

41. A fourth and important factor is the nature of the offence charged. While it is not one of the most serious crimes it is one with which Australian legislatures have been much concerned in recent years and the commission of which may place in jeopardy the lives of other users of the highway who quite innocently use it for their lawful purposes. Some examination of the comparative seriousness of the offence and of the unlawful conduct of the law enforcement authority is an element in the process required by Ireland's Case (1970) 126 CLR 321 . (at p80)

42. Finally it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power to require a motorist to attend a police station and there undergo a "breathalyzer" test. This last factor is, of course, one favouring rejection of the evidence. However it is to be noted that by the terms of s. 66 (1) the legislation places relatively little restraint upon "on the spot" breath testing of motorists by means of an "alcotest" machine. It is essentially the interference with personal liberty involved in being required to attend a police station for breath testing, rather than the breath testing itself (albeit by means of a more sophisticated appliance), that must here enter into the discretionary scales. (at p80)

43. The magistrate does not appear to have considered some of the above criteria. He seems to have much relied upon what he regarded, we think erroneously, as the "inherent unfairness" of what occurred and to have stressed the prejudicial nature of the evidence, which was only prejudicial in the sense that it was by statute made conclusive of the guilt of the appellant. He also does not seem directly to have accorded any weight to the public interest in bringing to conviction those who commit criminal offences. (at p80)

44. In the end we believe that the balance of considerations must come down in favour of the admission of the evidence. We have earlier stated why, in our view, his Worship's existing exercise of discretion cannot stand. There remains the question whether this Court should now itself exercise the discretion or rather have the case once more remitted to the magistrate for him to exercise anew his discretion in accordance with law. (at p80)

45. We have concluded that the first of these courses should be followed. The discretion here in question is of an unusual character and arises in quite special circumstances. It is not at all such a discretion as arises when the specific function of a primary judge is to make a discretionary judgment (see Mace v. Murray (1955) 92 CLR 370, at pp 378, 380 ) nor does its proper exercise require any further factual investigation (cf. Pearlow v. Pearlow (1953) 90 CLR 70, at p 83 ). The occasion for its exercise arose only as an incident in the hearing of the charge and then only for the purpose of determining whether evidence otherwise admissible should nevertheless be rejected. Its exercise requires no new evaluation of facts but rather the adoption of the facts as already found by the magistrate and the assessment of their relative significance against the wider background provided by those public interests to which we have already adverted. Such a process is not one necessarily to be undertaken by the tribunal of first instance: it is not in any ordinary sense concerned with fact finding or the evaluation of the significance of particular testimony. There appears to us to exist no want of power on the part of this Court preventing it from an exercise of this discretion - see Justices Act, 1902 (W.A.), as amended, s. 205. It is, then, for these reasons that we think it proper in the present case to set aside the magistrate's exercise of discretion and, in its stead, for this Court to exercise the discretion in a contrary sense. In our judgment the evidence should have been received. The case should be remitted to the magistrate with a direction that the appellant be convicted, a course which the magistrate had indicated he would have been obliged to follow had the evidence of the "breathalyzer" test been received in evidence. (at p81)

46. The proper order would be to dismiss the appeal but to vary the order of the Full Court by substituting for par. 3 of that order the following: "Matter be remitted to the Court of Petty Sessions with a direction that the respondent (defendant) be convicted and that such Court consider the question of penalty and costs", leaving the balance of the order to stand. We think that in the unusual circumstances there should be no order as to costs on the appeal to this Court. (at p81)

JACOBS J. In my opinion special leave to appeal ought to be granted. With the appeal before it, this Court must determine whether on the evidence the conclusion of the Supreme Court of Western Australia was correct, that is to say, whether the magistrate ought to have admitted the evidence in question. (at p81)

2. This Court is not bound to proceed in its consideration of this question with the constriction that the evidence was unlawfully obtained. This is so even though it may have been held in the Supreme Court of Western Australia by Jones J. at an earlier stage in these proceedings that the evidence was unlawfully obtained. No application was made to this Court for leave and special leave to appeal from that decision of Jones J. but at that interlocutory stage no such application was necessary in order to enable this Court at this later stage in the proceedings to consider the question whether the evidence was unlawfully obtained (Crowley v. Glissan (1905) 2 CLR 402 ; High Court Rules O. 70, r. 26). (at p82)

3. I agree with the reasons expressed by the Chief Justice for the conclusion that nothing in the Road Traffic Act, 1974 (W.A.) precludes a patrolman or an unauthorized person from asking for a sample of breath of a person willing to give it or from operating the breathalyzer apparatus in relation to such a sample. It appears to me that that is what occurred in the instant case and that a contrary view of the evidence is not sustainable. (at p82)

4. The evidence was thus lawfully and regularly obtained. It was admissible under s. 70 of the Act and there was no proper basis for any conclusion that it should be rejected in exercise of any discretion. (at p82)

5. In the particular circumstances, as the magistrate had indicated that if it were not for the discretion which he exercised to exclude the evidence, he would have convicted, the conclusion of the majority of the Full Court amounted in effect to a direction to convict. That being so it appears best to include such a direction in the order. I agree with the orders proposed by the Chief Justice. (at p82)

6. I do not find it necessary to consider whether, if the evidence had not been regularly and lawfully obtained it either would have been admissible or in the circumstances of this case ought to have been excluded. (at p82)

MURPHY J. Mr. Bunning was charged under s. 63 (1) of the Road Traffic Act, 1974 with having driven a car "whilst under the influence of alcohol to such an extent as to be incapable of having proper control of it". Mr. Burton S.M. dismissed the charge, holding that the evidence of the result of a breathalyzer test was inadmissible because the police officer's requirement that the applicant undergo the test was unlawful. (at p82)

2. The respondent sought and obtained an order to review from the Supreme Court of Western Australia under the Justices Act 1902 (W.A.), as amended. The relevant provisions (ss. 197, 198, 205, 206, 206A and 206F) are set out in the judgment of the Chief Justice. Jones J. heard the return to the order and decided that the evidence was admissible but that, in the circumstances, the magistrate was entitled in his discretion to admit or to reject it. Jones J. declined to direct that the evidence should be admitted, but expressed the view that, if he were to decide the question for himself, he would admit it. He then made an order directing the magistrate to rehear the case and to determine it "in accordance with this judgment and according to law". This can only mean (and s. 206F makes this clear) that the magistrate was bound to follow Jones J.'s directions. (at p83)

3. Mr. Burton reheard the case, treated the evidence of the breathalyzer test as admissible, and, in his discretion, rejected the evidence. He then dismissed the charge for the second time. In my opinion, he was correct. The magistrate and the parties were entitled to rely upon and were bound by Jones J.'s directions to the point that, even if we consider them wrong, they constitute the law for the purpose of the case. That is the effect of the order to review. (at p83)

4. However, the respondent sought and obtained another order to review on the ground that the magistrate had not properly exercised his discretion. The Full Court (Lavan and Brinsden JJ., Burt C.J. dissenting) held that the discretion was not properly exercised. Burt C.J. held that the magistrate took into account all relevant matters. Lavan J. took the view that Mr. Burton had not taken into account all relevant considerations and directed that he should reconsider the exercise of discretion. Brinsden J. considered that the magistrate was bound to admit the evidence and thought the result should be a conviction. None of the justices of the Full Court was willing to exercise the discretion to admit or exclude the evidence, and none was willing that the Full Court should convict (although urged to do so by the respondent). They also refrained from directing the magistrate to convict. This was correct; the legislation gives them no power to do so, and the respondent conceded this before us. On an order to review, the Supreme Court may make its own findings of fact; it cannot direct the magistrate to find a fact or facts but only direct him on a matter of law. (at p83)

5. Because of the result on the first order to review, it must be accepted that the magistrate is entitled to exercise a discretion whether to admit or reject the evidence. To say that he has a discretion but that it can be exercised only against the applicant is playing with words, and is particularly inappropriate to be used against an accused. (at p83)

6. I do not accept that this Court should vary the order by directing the magistrate to convict because:
(1) such a direction is inconsistent with Jones J.'s judgment which stated that the magistrate was entitled in his discretion to exclude the evidence (without which the charge must fail);
(2) the order under appeal should not be worsened against an appellant/defendant in a criminal matter; (3) it is a direction that the facts be found a particular way. It is not a direction of law (at least, not merely a direction of law). This Court is not (as the Supreme Court was not) empowered to direct a conviction. (at p84)

7. Discretion to Exclude. On the second occasion, the magistrate treated the evidence as unlawful, and excluded it. The question of unlawfulness was concluded in the applicant's favour by the judgment of Jones J., as was the question of discretion to exclude the evidence. For the magistrate to regard himself as not entitled to exclude would have been inconsistent with Jones J.'s directions. The same applied to the Full Court and applies to this Court. (at p84)

8. The magistrate also exercised his discretion according to the test of unfairness to the defendant. He held that the defendant had been unfairly the victim of an "unconscious trick by the police officer". This was a view open to the magistrate. (at p84)

9. Mr. Bunning was at a police station (presumably under arrest); he was required several times to take the test and declined; but finally agreed. The police officer required him to do so in the belief that he was lawfully requiring him to do so. In these circumstances, it is idle to regard Mr. Bunning's submission as voluntary. It was obtained by implied coercion, possible only because the police officer was ostensibly clothed with the authority of State law. When a citizen is required by a police officer to do something, he can comply or risk committing an offence. A police officer acting, although unlawfully, in the name of the government possesses a far greater capacity for overbearing a person than does an ordinary person exercising no authority other than his own. When a person is unlawfully required to incriminate himself, the evidence should be rejected in other than exceptional cases. Whatever might be done where there is a grave criminal charge, this was a traffic charge which, although serious, is not so serious that judicial protection of the public against unlawful coercion should be outweighed by considerations of law enforcement. At least, it was open to the magistrate to take that view. (at p84)

10. As well, the Road Traffic Act imposes strict conditions under which a person may be required to undergo a breathalyzer test. To allow the evidence of a test to be admitted when the conditions have been broken is to undermine the protection upon which the legislature insists. (at p85)

11. In any event, whether the test of unfairness was correct or not if the case were being considered for the first time, is not the point. The magistrate was bound to act in accordance with the judgment of Jones J., which directed him that he was entitled to exclude the evidence if it unfairly prejudiced the applicant. (at p85)

12. There is no doubt a social value in those who have offended the Road Traffic Act having their guilt determined and appropriate punishment (if any) inflicted. But there is also a social value in the principle that a government should not persecute a person by repeated criminal proceedings on the same matter. (at p85)

13. Appeals against Acquittals. One of the best traditions of the common law is its abhorrence of appeals against acquittals. The general principle is that an acquitted person is not to be jeopardized a second time. This has been described in Benson v. Northern Ireland Road Transport Board (1942) AC 520, at p 526 as:
". . . an extremely important and universally accepted principle of our law, and a principle which has been recognized again and again by the highest authorities
. . . In Reg. v. Tyrone County Justices (1906) 40 Ir LT 181 . . . the 'elementary principle that 'an acquittal made by a court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other court.'" The same principle applied to an appeal against a discharge of habeas corpus. As Lord Halsbury said in Cox v. Hakes (1890) 15 App Cas 506, at p 522 :
"It is the right of personal freedom in this country which is in debate; and I for one should be very slow to believe, except it was done by express legislation, that the policy of centuries has been suddenly reversed and that the right of personal freedom is no longer to be determined summarily and finally, but is to be subject to the delay and uncertainty of ordinary litigation, so that the final determination upon that question may only be arrived at by the last Court of Appeal." (at p85)

14. The "cardinal principle" of our law is "that when once a person has been held entitled to liberty by a competent Court there shall be no further question" (Lord Dunedin in Secretary of State for Home Affairs v. O'Brien (1923) AC 603, at p 621 ). (at p85)

15. Convicted persons now have rights of appeal and review, but there is a vast difference between the position of the government (the respondent here is supported by the government) and the private person. The government is not affected to the same degree (if at all) by the trouble, expense and embarrassment of long, drawn-out legal proceedings. (at p86)

16. The principle is so fundamental that the common law rule was incorporated in the United States Constitution: ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . . " (Amendment 5). No narrow view is taken of the words, "in jeopardy of life or limb"; the immunity applies to all acquittals. (at p86)

17. Section 73 of our Constitution provides: "The High Court shall have jurisdiction . . . to hear and determine appeals from all judgments, . . . " Yet, in accordance with the common law tradition, this was construed to exclude an appeal from an acquittal by a jury (R. v. Snow (1915) 20 CLR 315 ). The principle has been departed from (unfortunately, in my opinion, and I trust not irreversibly) by allowing appeals from other acquittals. (at p86)

18. In some States of Australia, this fundamental principle of personal freedom has been eroded by statute. To conform with the common law tradition, any statutory encroachment should be read with the utmost strictness in favour of the accused person and ought to be applied with the utmost strictness in his favour. (at p86)

19. Section 197 of the Justices Act (W.A.) gives an appeal to "a person who feels aggrieved as complainant defendant or otherwise". The applicant has not contended that despite the general words, the provision should be read so as to exclude an order to review a dismissal of a charge. So this case has been conducted on the basis that the fundamental principle is impaired by this legislation. (at p86)

20. The magistrate has dismissed this charge against Mr. Bunning twice and is now to be directed to convict. This "third time proves it" approach is not appropriate to the administration of criminal justice, and the magistrate, who faithfully observed the judgment of Jones J., should not be put in this position. (at p86)

21. Special leave should be granted, the appeal allowed, and the order of the Full Court set aside. (at p86)

Orders

Application for special leave granted.

Order of the Full Court of the Supreme Court of Western Australia varied by substituting for par. 3 of that order: "Matter be remitted to the Court of Petty Sessions with a direction that the respondent (defendant) be convicted and that such Court consider the question of penalty and costs"; otherwise appeal dismissed with no order as to costs on the appeal to this Court.