Draper v The Director of Public Prosecutions

The applicant, Draper, sought leave to appeal against a decision of the District Court of New South Wales, which had dismissed his appeal against a conviction for driving under the influence of alcohol. The Director of Public Prosecutions was the respondent. The dispute concerned the admissibility of evidence obtained from a breath analysis.

The primary legal issue before the Court of Appeal was whether the evidence of the breath analysis was admissible, given that the police officer who conducted the test had not complied with the requirement to inform the applicant of his right to have an independent medical practitioner present during the breath analysis. The court was required to consider the interpretation of section 4E(1)(b) of the *Breath Analysis (Alcohol and Drugs) Act 1980* (NSW) and the consequences of non-compliance with this provision.

The Court of Appeal held that the requirement to inform the driver of their right to have a medical practitioner present was a mandatory provision, and failure to comply rendered the results of the breath analysis inadmissible. The court reasoned that the purpose of this provision was to provide a safeguard for the accused, ensuring fairness in the process. As the police officer had failed to inform the applicant of this right, the evidence obtained from the breath analysis was unlawfully obtained and therefore inadmissible. Consequently, the conviction, which was based on this inadmissible evidence, could not stand.

The Court of Appeal granted leave to appeal, allowed the appeal, and quashed the conviction.