Bunning v Cross

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.