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…
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.
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Details
AGLC
Bunning v Cross [1978] HCA 22
Case
[1978] HCA 22
Decision Date
CaseChat Overview and Summary
In *Bunning v Cross*, the High Court of Australia considered the admissibility of evidence obtained by police in circumstances where the police had acted unlawfully. The dispute arose from a prosecution for driving under the influence of alcohol, where the evidence of the driver's blood alcohol content was obtained following a breach of statutory requirements concerning the administration of a breathalyser test.
The central legal issue before the High Court was whether evidence obtained in contravention of a statutory provision, which was designed to protect individual rights, should be admitted in criminal proceedings. The court had to determine the principles governing the admissibility of such evidence, particularly where the evidence was otherwise relevant and reliable.
The High Court, by majority, held that the admissibility of illegally or improperly obtained evidence is a matter for the discretion of the trial judge. This discretion is to be exercised by weighing the public interest in the conviction of offenders against the public interest in the protection of individual rights. The court affirmed that while the common law does not automatically exclude such evidence, a judge has the power to exclude it if its prejudicial effect outweighs its probative value, or if its admission would be unfair to the accused. The court emphasised that the illegality or impropriety in obtaining the evidence is a significant factor to be considered in the exercise of this discretion.