Jervis v SA Police- Holland v SA Police

[1999] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A9 of 1998

B e t w e e n -

HELEN JERVIS

Applicant

and

S.A. POLICE

Respondent

Office of the Registry
  Adelaide  No A10 of 1998

B e t w e e n -

ADRIAN HOLLAND

Applicant

and

S.A. POLICE

Respondent

Applications for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 18 JUNE 1999, AT 10.05 AM

Copyright in the High Court of Australia

____________________

MR D.H. PEEK:   May it please the Court, I appear for the applicants in both matters.  (instructed by Condello & Co) and (instructed by Manfield & Co)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent in this matter with my learned friend, MR M.A. NICHOLAS.  (instructed by the Crown Solicitor for the State of South Australia)

GLEESON CJ:   Yes, Mr Peek.

MR PEEK:   If it please the Court.  In each case the applicant was originally acquitted by a magistrate, the Crown appealed and these two appeals were jointly referred to the Full Court as involving an important matter of principle, and that matter was whether there was a discretion to be exercised here at all, as distinct from any consideration of pure factual matters as to whether a discretion was correctly exercised in a particular case.  The answer of the Full Court was that there was no discretion to be exercised at all and it is that answer which founds the argument that there should be a grant of special leave.

The special leave questions as we put them are, of course, set out at page 67 of the application book at the first page of the summary of argument and I will take ‑ ‑ ‑

GLEESON CJ:   Just so that I can be clear that we have the facts and issues straight, the discretion for which you contend was a discretion to exclude evidence of the breath test on the ground that things happened in relation to taking the blood test that would have made it unfair to admit the breath test, is that right?

MR PEEK:   That is so.

GLEESON CJ:   And those things that happened in relation to the blood test were things that had nothing to do with the authorities but concerned what was done or not done by medical people consulted by your clients?

MR PEEK:   With the slight qualification, your Honour, as to a question of what “authorities” means in this particular matter, given that a role is positively given by the legislation to doctors, and indeed nurses, to take a blood test upon the request of a person who apparently has had a positive breath analysis test.

GLEESON CJ:   Let me give you an example.  Suppose the breath test was taken and gave a positive result and then the person subjected to the breath test went along to have a blood test from his own doctor and, because his own doctor lost the records relating to the blood test, it became impossible to prove the results of the blood test.  Would that be an end of a prosecution based on the breath test?

MR PEEK:   Your Honour, that highlights the point as to special leave we wish to put and it is this, that there is a discretion to be exercised; the actual exercise of a discretion will vary very much from case to case.  In some situations, if one looks at all the circumstances, the correct conclusion might be that it is not unfair in a particular case.  In other circumstances it will be found that it is unfair, but the Court here has held that there is no discretion at all.  Now, that goes way beyond breath analysis cases; it goes into all prosecutions, for example, that rely on any testing procedure at all.  It goes into DNA-type cases, it goes into a great wealth of real evidence generated by machines and tests and legislation, in those various areas, which purport to give, or intend to give, a right in a defendant to check the reliability of such testing processes.

GLEESON CJ:   But you seem to say that the legislation is unfair.

MR PEEK:   No, I am not saying that, your Honour.  I am saying there is a discretion to be exercised not arising from this legislation at all.  We say there is a broad discretion at common law in a judge or a magistrate to ensure a fair trial and that if on a consideration of the particular facts the judge or magistrate comes to that view, then he exercises that discretion.  It is that broad discretion that is in contention here, as the court distinctly stated.  The Full Court said ‑ ‑ ‑

GLEESON CJ:   Would it be unfair if, for example, a witness, on whom the defendant wanted to rely, died?  In a cosmic sense, that might involve some kind of unfairness, but would it be relevant unfairness?

MR PEEK:   Your Honour, once again, what I wish to say is not so much to look at any particular factual situation, because I immediately contend that one can postulate factual situations in which a correct result might be that it would not be unfair, but equally, in my submission, one can postulate situations in which it clearly would be unfair or that it is a genuine matter for a ruling as to that, and all we are saying is that there is that discretion there to be exercised.

McHUGH J:   But hitherto at all events, the discretion has always been seen as necessary so as to constrain law enforcement authorities from engaging in illegal or improper conduct, and ‑ ‑ ‑

MR PEEK:   Well, that really is, of course, the question we would wish to ventilate, with respect, your Honour, because we say that if one goes back to Christie and traces the cases through from there, and if one looks at the decision in Sang, for example, the House of Lords there makes it clear that the derivation of the broad discretion to prevent an unfair trial does not emanate from a quest to regulate the authorities, but focuses upon the position of the defendant at trial.

McHUGH J:   No, but a Bunning v Cross discretion – and that is what you contend for, as I understand it ‑ ‑ ‑

MR PEEK:   No, it is not, your Honour, quite the contrary.  We say that is where the court went wrong.  The court tried to strait-jacket too much within the rubric of Bunning v Cross.  Bunning v Cross really addresses what might be said to be a public policy discretion, and I fully agree that that is directed towards the police and wrongdoing by the police, et cetera, but there is an additional discretion, or a broader discretion, if one can put it that way, which is the fairness discretion, and that is to prevent an unfair trial.  I mean, it is not dissimilar to a situation such as a Dietrich situation where a person, through no fault of the police or the authorities, might receive an unfair trial if unrepresented.

GLEESON CJ:   Well, could a trial be unfair because the principal witness that the defence wanted to rely on died?

MR PEEK:   Well, in certain circumstances, it could.

McHUGH J:   That has never been a ground for staying a trial, because a principal defence witness is dead.

MR PEEK:   Well, I had more in mind, your Honour, the situation, for example, where vital evidence has been destroyed.  There are cases in which that has led to a stay of a trial.

GLEESON CJ:   Destroyed by the defendant’s lawyers, by mistake, for example; would that be unfair?

MR PEEK:   Well, destroyed not necessarily by the prosecution.  If it were the fault of the defendant then it might not be unfair, I agree, but what we are putting here is a situation where it is neither the fault of the defendant nor of the prosecution authorities, but yet the result is at trial, arguably, unfairness.

GLEESON CJ:   Well, suppose, to give an example, vital evidence was lost because it was stolen by a third party.  Could that produce the consequence ‑ ‑ ‑

MR PEEK:   Arguably that may in certain circumstances lead to unfairness, but the situation here is stronger than that, if it please the Court, because, unless one has a blood test, the breath analysis test is presumed irrebuttably to be accurate.  Now, for example, in one of the situations here, the breath analysis test is said to be exactly .08, and that is a very critical matter because, of course, from exactly .08 and upwards, there is severe mandatory licence disqualification.

McHUGH J:   Yes, but in respect of at least one of these offences, you cannot really get your case off the ground on a general unfairness discretion, can you, if I remember rightly, because is not the breach of the regulation the failure to deliver the original of the signed certificate to the person?

MR PEEK:   No, your Honour, no, I am sorry, it is not; it is the failure to deliver the blood sample, and the court said that thereby that defendant had lost an important right.  The court found in this particular case that the discretion was restricted to a situation where that loss of right was caused by the police or the authorities, and that was the basis of the decision, if it please your Honour.

GLEESON CJ:   The point at issue was put rather more narrowly in the reasoning of the Chief Justice at page 31 lines 26 to 29.  Does his Honour’s description of what he calls “the discretion question” fairly summarise the issue?

MR PEEK:   Well, your Honour, I see the passage that you point me to:

the court nevertheless has a discretion to exclude evidence of the breath analysis reading, upon which the presumption rests, because of the irregularity.....that subsequently occurred in relation to the taking of a blood sample.

Again, I differentiate between a question of whether it was correctly exercised in any circumstances and whether it is there at all.  We say it is there in this and many other cases for which similar principles must apply, and if the court’s judgment in this case is correct, it extends far beyond this present issue as there formulated by his Honour.

Could I perhaps take the Court through the judgment of the Full Court just to delineate the passages relied upon.  The court initially considered the matter of discretion at pages 41 and following, where his Honour said:

I now turn to the issue of the discretion to exclude evidence of the reading indicated by a breath analysing instrument.

And then the court sets out certain of the authority, and at page 43 the court referred to the decision of French v Scarman, where Chief Justice King, if I can just read out that passage, said:

In one sense, of course, it can be said that the evidence constituted by the breath analysis was not unlawfully or unfairly obtained, because the obligation to submit to the breath test was not dependent upon compliance by the police with subsection (2).  In my opinion, however, subsection (2) is a safeguard for the citizen expressly provided by the legislature and it is so closely connected with the obligation to submit to the breath test that non-observance by the police of the safeguard is a sufficient foundation for the discretion.

Now, the question of unfairness and the question of unlawfulness, of course, are closely interlinked in many cases, as indeed they were so treated in Ireland’s Case, and there is a portion of Ireland reproduced.

GLEESON CJ:   The key passage in the reasoning of the Chief Justice appears to be at page 56 line 20, does it not?

MR PEEK:   Yes, your Honour.  Well, it is that passage with which we take special issue, your Honour.

GLEESON CJ:   Yes, that is the point of the application, is it not?

MR PEEK:   Yes, it is indeed, and his Honour had said much to the same effect in the pages leading up to that passage from about page 54, I suppose.  If I could just go back to page 54, for example, his Honour there is saying at about six lines down:

As I have already said, a consideration of fairness invites attention to the fairness of the trial.  What is considered is whether it would be unfair that the evidence be used against the accused.  The circumstances in which the evidence was obtained are important.

And then:

not concerned with fairness considered at large –

and then the next sentence:

The issue is whether, having regard to the circumstances in which the relevant evidence was obtained, there would not be a fair trial if the evidence were used against the accused.

Now, his Honour, as it were, leaps, if I can say so with respect, to saying, that the whole purpose of the discretion is to constrain the police:

The purpose is to prevent the use of illegal or improper methods of obtaining evidence.

And his Honour then says:

The same point was made in slightly different terms by Justices Toohey, Gaudron and Gummow in Swaffield.

There their Honours said:

The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person.

Now, my submission today is that that passage is, of course, correct, but it in no way stands for the proposition that his Honour was citing it for, because we say that that ‑ ‑ ‑

McHUGH J:   Can I just get the facts clear in Jervis’s Case?  Is the complaint in Jervis that the medical practitioner did not deliver the original of the signed certificate to the defendant and did not deliver one of the sealed containers containing part of the blood sample?

MR PEEK:   That is true.  I think your Honour just put it on the certificate basis before, but the more important aspect would be the fact that the blood was not delivered as well.

McHUGH J:   Was it the whole of the blood or only one part of it?

MR PEEK:   No, there is a one drawing of blood, it is then divided into two portions.  One is supposed to go to the defendant to provide a check, one goes to the police.  It would appear that both went to the police.  I mean, we cannot be sure about that, but certainly the magistrate found that the defendant did not get the sample, and we say that that is vital because, of course, if you - well, I think I have already said, that the presumption erected is an irrebuttable one, that the only way one can challenge such a presumption is by analysis of the blood and the legislation mandates you having a right for your own analysis, not just relying on someone else’s analysis, particularly, for example, where you could have a reading so critically pitched as .08, with such consequences above and below being so very, very different to the citizen.

McHUGH J:   But the evidence that you say should be excluded is the evidence of the breath analysis, is that right?

MR PEEK:   I say that that is the evidence that is capable of being excluded and it is the decision of the magistrate as to whether it should be, in all of the circumstances.

GLEESON CJ:   And exclusion of that evidence, of course, would be the end of the matter, because the case is based on the breath analysis?

MR PEEK:   Yes, it would, although one must, I suppose, remember the power in the police to charge driving under the influence, of course, based on observations.

GLEESON CJ:   Yes, but with respect to the particular charges in question, that brings an end to the case.

MR PEEK:   Yes, it would, and it did - there was an acquittal.  Now, in the passage at page 54, if I can just go back to that for one moment, down the bottom there the court said:

It is also notable that, in this State, in the decided cases the discretion has been exercised to exclude evidence when there has been a deliberate or mistaken failure by a member of the police force to comply with the requirements of the Act.  In saying that, I put to one side cases concerned with section 47I.  That section deals with the

compulsory taking of blood from a person admitted to hospital after a motor vehicle accident.

Now, there the situation is that a medical practitioner is compelled to take blood from an accident victim.  Previously in South Australia it was held that failure to comply with conditions was a condition precedent to admissibility.  In the recent case of Fountaine, which is in the case book before the Court, it has very recently been held that it is not a condition precedent but rather a matter of discretion, and that the court obviously has to have a discretion to exclude such evidence where in a clear case the defendant has been deprived of his right to check a blood sample, for example.  But I postulate this to the Court today:  what is the distinction there between the failure of a doctor there to comply and a failure of a doctor here who was specifically requested to take a blood test, the legislation giving the defendant that very right?

The two cases are really inherently inconsistent and one needs the exercise of a discretion – not always to be exercised, perhaps rarely to be exercised in favour of a defendant, but one needs it there to protect the defendant from an unfair trial where there is cause for concern that the breath analysis test was unreliable or incorrect or very close to an important differentiating line, for example.  The defendant manifests a wish to check it, he protesting that he did not think he was that high, for example, and he is deprived of that right to do so.  Now, the legislation is postulated on an edifice that he have that right to check by blood, which is presumed to be the more reliable testing process and in certain circumstances, if he loses that right, then it would be an unfair trial.

Now, I think the Court has my position on that.  There is, of course, the other associated aspect of the construction of the legislation, but what I put is the main special leave point.  If your Honour pleases.

GLEESON CJ:   Thank you, Mr Peek.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, what this case is concerned with, in my submission, is whether on the facts of this case, in the light of the statutory scheme in South Australia, the evidence of the breath analysis having been legally obtained, whether it ought to have been excluded in the exercise of the discretion by the court and, in my submission, although my friend has tried to broaden this issue, it really does turn very much on the particular terms of our legislation.  In my submission, although I accept, of course, there is a fairness discretion and it applies not particularly to this legislation, but to all criminal cases, whether it applies and how it applies in these cases must depend on the meaning and interpretation of section 47G of our Act.  That, in my submission, is very important.  It is also important in my submission here to appreciate the facts and appreciate ‑ ‑ ‑

McHUGH J:   But do you concede that the regulations lay down safeguards for an accused person which have been breached in this particular case?

MS ABRAHAM:   In my submission, it is not quite as simple as that.  In Mr Holland’s case he actually decided, on advice of a nurse, not to have the test, so, with respect, that is not a breach; that is a question of whether that was appropriate advice to give.  In relation to Ms Jervis’ case, there was to be two samples, I mean, one sample taken, divided into two.  There is, in my submission, a technical breach there because, although one sample did not reach Ms Jervis, the other sample was forwarded to the forensic science centre and tested, and there was no difference, in effect, between that and a breath analysis.

GLEESON CJ:   You mean the blood sample that was tested confirmed the reliability of the breath analysis?

MS ABRAHAM:   It appears from the judgment in the Full Court that - “it did not cast doubt on” I think is the way it is phrased in the judgment.

McHUGH J:   I thought that was not relied on by the prosecution; that is, the analysis carried out by the State forensic science.

MS ABRAHAM:   That is correct, it was not relied on by the prosecution but obviously considered in the argument before the Full Court on the question of the fairness aspect.

GLEESON CJ:   Well, it would not be relied on by the prosecution, because it would not be relevant; the prosecution just relied on the breath test.

MS ABRAHAM:   That is correct.

GLEESON CJ:   Am I right in thinking that in the case of Holland there was no blood test which would have permitted the breath test to be confirmed because a nurse talked the defendant out of having the blood test and the defendant, acting on that advice, decided not to have one?

MS ABRAHAM:   The nurse gave certain advice to Mr Holland and it was accepted that Mr Holland, as a result of that, decided not to have the blood test.

GLEESON CJ:   So it was Mr Holland’s decision that there should not be a blood test?

MS ABRAHAM:   Yes.

GLEESON CJ:   And it was a result of his decision that there was no blood test to compare with the breath test?

MS ABRAHAM:   That is correct.

GLEESON CJ:   And in the case of Jervis there was, in fact, one sample of blood that was available to compare with the breath test, and that comparison confirmed the breath test?

MS ABRAHAM:   The way it was phrased in the judgment – I will just try to put my finger on it – was that it did not cast doubt on the reliability of the breath test.

McHUGH J:   But that confirmation was done by the State.  The defendant was deprived of the opportunity to have his scientists analyse that sample.

MS ABRAHAM:   Your Honour, what he was deprived of was, in effect, the opportunity then of testing the State forensic scientist’s work in relation to the sample, because his blood was tested, and so there was ‑ ‑ ‑

GLEESON CJ:   By his medical practitioner.  He went off to a person of his choice to have his blood tested, is that right?

MS ABRAHAM:   Yes, he went to a hospital ‑ ‑ ‑

GLEESON CJ:   He went to a hospital?

MS ABRAHAM:   Yes, which occurs on occasions, and the sample was taken ‑ ‑ ‑

GLEESON CJ:   Well, am I right in thinking that he could please himself where he went to have his blood test?

MS ABRAHAM:   Yes.

GLEESON CJ:   The purpose of the blood test was simply to give him an opportunity to either confirm or contradict the effect of the breath test?

MS ABRAHAM:   Yes.

GLEESON CJ:   And his opportunity broke down at that stage because of something that had nothing to do with the authorities?

MS ABRAHAM:   Part of his opportunity, your Honours, because a sample of his blood taken that day was tested.

GLEESON CJ:   By the hospital?

MS ABRAHAM:   No, by the forensic science – what happens is, the sample is divided into two ‑ ‑ ‑

GLEESON CJ:   I see.

MS ABRAHAM:   One sample is sent through to the forensic science centre, one sample is to be given to the accused.

GLEESON CJ:   Right, so what happened in this case was that the hospital that he selected to perform the blood analysis took some blood from him, sent one sample of his blood back to the authorities who tested it, but lost the sample that was supposed to go to him?

MS ABRAHAM:   It is unclear where the second sample went but the evidence was that he did not receive it.

GLEESON CJ:   So the result was that as a result of the fault of whoever it might have been, but it does not seem to have been the fault of the authorities, he lost the opportunity to have an independent check made of the authorities’ check of the blood sample he provided them.

MS ABRAHAM:   That is correct.

McHUGH J:   Well, it is a bit more than that, is it not, because, although the accused has a choice as to the medical practitioner that he wants to go to, the moment he does the medical practitioner has obligations imposed on him or her by regulation 6.

MS ABRAHAM:   That is correct.

McHUGH J:   So, the medical practitioner was in breach of his or her statutory obligations in this case?

MS ABRAHAM:   Yes, in Ms Jervis’ case.

McHUGH J:   Can I ask you also about the question of the nurse in Holland’s case?  Did this accident take place outside the metropolitan area of Adelaide, because I notice that under the regulations a nurse is put in the same position as a medical practitioner if the incident happens outside the metropolitan area?  That is section 47F(b) or something, I think, is it not?

MS ABRAHAM:   This person was stopped at a breathalyser station in the city - it is not suggested, I do not think, that it was outside the city at all - and he went to a local hospital.

McHUGH J:   But it was taken by a registered nurse instead of a medical practitioner?

MS ABRAHAM:   It was not taken at all.

GLEESON CJ:   It was not taken at all.

McHUGH J:   Yes, well, that is right, but it was the registered nurse who said it should not be taken or it would be unwise to have it taken.

MS ABRAHAM:   Proffered some advice.

GLEESON CJ:   She proffered some advice to him which he accepted, and it was as a result of his acceptance of that advice that it was not taken.  Was the proffering of that advice any breach of any regulation on her part?

MS ABRAHAM:   No; I mean, there is nothing in the regulations concerning that.

McHUGH J:   No, if it was in the metropolitan area, that is right.

MS ABRAHAM:   Your Honours, I was making the point earlier that we are really talking about, as your Honours can see, a particular scheme in the legislation which is peculiar to South Australia.  My friend has referred in his argument to a number of cases indeed referred to in the Full Court judgment and his outline of argument, South Australian cases that have made comments on the Road Traffic Act legislation and, in my submission, one needs to consider what has been said about them with great care, because the legislation in the form that it now is has only been in existence, I think, since 1996.  The obligations prior to that were, in fact, on the police and the authorities, and so the cases prior to that that talk about safeguards and evidence being excluded were talked about on the basis of the Bunning v Cross discretion and the exclusion there in those circumstances.

My friend made reference in his argument to Fountaine, a very recent decision of our court, concerning the next section, section 47I.  In my submission, contrary to my friend’s submission that is, in fact, inconsistent with this case at Bar, it is, in fact, very consistent with the case at Bar.  These two cases, and indeed one other case of recent times, have in fact shown a consistent approach by our court to the interpretation of this particular piece of legislation.

Section 47I is in fact a different situation.  Section 47I is a situation of blood being taken from a person who is taken to hospital at a time after being involved in a road traffic accident, and so, in those cases, there are obligations placed on doctors in terms of collecting of samples, in effect, on behalf of the authorities.  In those sorts of cases, the person is often not in a position to make decisions themselves; they might well be unconscious.  And so, the obligations in those cases are, in my submission, on a different footing to the obligations of the case at Bar, but, interestingly enough, even in that case, the court has held that what the Crown must prove in relation to the testing in that case is the collection of the sample, and obviously the chain of evidence and the like.  It then comes down to a question of discretion if the safeguards, to use that word, have not been complied with.

So, in my submission, it is clear that it is not automatic that if there is breach of some provision that is regarded as a safeguard provision, that the evidence ought to be excluded and, in my submission, that is, in effect, what my friend is arguing.  My friend is arguing that if the blood test is not done in accordance with the regulations, then it follows that it is unfair and it follows that the evidence ought to be excluded and, in my submission, that is clearly not so, given the scheme of the legislation and the intent.  So, in my submission, leave ought to be refused on the basis that this legislation is peculiar obviously to this State.  Secondly, in my submission, there is no reason to doubt the correctness of the decision of the Court of Appeal in this.  The particular fairness discretion was considered recently by this Court in Swaffield and Pavic.  The rationale behind the discretion was analysed, and the court, in my submission, has applied that to the facts of this particular case, and, in my submission, there is no reason to doubt that judgment at all.

The final point my friend relies upon is that relating to the interpretation of the wording in section 47G which in fact very much, even more so than my previous argument, relates peculiarly to our legislation and is not ‑ ‑ ‑

McHUGH J:   Yes, but what about the passage at page 56 in the Full Court in the Chief Justice’s judgment at line 19 where he says:

If no right of the defendant has been infringed, at least by the law enforcement authorities, I do not accept that it can be said that the operation of section 47G(1) means that the trial is unfair.

He seems to be holding that in those circumstances there is no discretion.

MS ABRAHAM:   Well, in my submission, not so, because it turns on the facts of this case, because on the facts of this case there was no infringement by the law enforcement authorities.  One might see a case where in relation to the safeguard aspect there is infringement by the law enforcement authorities in some way, but in this particular case that was not so.

McHUGH J:   No, but nevertheless, the defendant having been deprived of an important safeguard by somebody who has an obligation to comply with the regulations, why would there not be a discretion for the magistrate to consider whether he should exclude the breath analysis result?

MS ABRAHAM:   In my submission, one would have to look at the particular facts of the particular case and if the law enforcement authorities were not involved - and one is looking at facts like the cases at Bar where, in my submission, one has not lost the right in many respects in one case and, in the other case, the decision was made by the person not to do it.

McHUGH J:   Yes, forget about Holland; concentrate on Jervis.  Does not the Chief Justice’s statement at page 56 seem to say that in no circumstances can a trial be unfair if no right of the defendant has been infringed?  It is not a question of whether any rights have been infringed, is it?

MS ABRAHAM:   He has said that, in relation to a fairness discretion, that is what one is looking at, the rights being infringed by the authorities, the law enforcement persons, and, in relation to Ms Jervis’ case, that obviously did not occur and, in addition ‑ ‑ ‑

GLEESON CJ:   May I ask, in relation to the case of Jervis, did the decision of the Court of Appeal turn on two grounds, one a denial of the existence of the discretion but, second, a conclusion that, assuming the discretion existed, on the facts and circumstances of this case there was no proper basis for the exercise of the discretion to exclude the evidence?  I am looking at page 58, line 10.

MS ABRAHAM:   In my submission, the court did not go as far in the first place as deciding that no discretion exists; quite to the contrary.

GLEESON CJ:   That is my point.  That sentence beginning with the words:

In the particular circumstances it does not seem to me to be unfair –

seems to involve a decision that whatever might be the position in some other cases, in the particular circumstances of this case there was no proper basis for excluding the evidence of the breath test.

MS ABRAHAM:   That is correct.

McHUGH J:   But does not the Chief Justice go on to explain his reasons.  At line 15, he says:

The discretion arises if there is some impropriety by a member of a law enforcement authority, or if it would be unfair to use this evidence having regard to some such impropriety.

Does not that indicate that he has misdirected himself as to the relevant principles?  He seems to be concentrating on a Bunning v Cross-type discretion, whereas the applicant relies on a Christie discretion.

MS ABRAHAM:   In my submission, he is not misdirecting himself.  What he is saying is, in this particular case, discretions may arise but, on the facts of this particular case, because there has been no impropriety on the part of the authorities, then there is no relevant unfairness to the accused.

McHUGH J:   But if you look at the opening words on page 58, above line 10, he opens by saying:

Finally, I turn to consider the exercise of the overall discretion, as it was described by the majority in Swaffield.

And Swaffield was a case all about Bunning v Cross discretion; all about law enforcement authorities, in all the judgments.

MS ABRAHAM:   But, with respect, in Swaffield there was a great analysis of the fairness discretion, the Bunning v Cross discretion and the Christie discretion, and the history to all those discretions was discussed, and if one looks at Swaffield, the discussion of the fairness discretion clearly shows, in my submission, it is based on treating by the authorities, fairly and if, as a result of that, evidence ought to be excluded, then there is a discretion to do that and, in my submission, that is very much in line with what was said, determining the historical aspect of the fairness discretion.  Now, that is not to say that, in a case under section 47G, there might not be a situation where law enforcement authorities are involved in some way, shape or form with the blood sample and the discretion might be used in that case to exclude matters, but, in this particular case at Bar, it was not appropriate and, in my submission, that is what the Chief Justice is saying.

In any event, in my submission, the facts of this case do not make it a good vehicle to test that proposition because, in my submission, on the facts of this case, you do have, on the one hand, a person not deciding to do something, and on the other you have got a person who ‑ ‑ ‑

McHUGH J:   That is Holland but what about in Jervis?  I mean, the defendant has been deprived of the opportunity to test the sample which brings about his conviction.  Now why cannot a magistrate take that into account in determining whether it is unfair to allow the prosecution to tender the breath analysis result?

MS ABRAHAM:   Because, in my submission, it does not come about in any way, by any conduct on the part of the authorities, in this circumstance, and ‑ ‑ ‑

McHUGH J:   You see, that brings you back into the Bunning v Cross area, and your opponent says it is not, there is a Christie discretion, and he cannot fairly answer the charge, having regard to this very special scheme.  You have got a scheme setting up a statutory presumption if certain things are done in relation to a breath analysis and the legislation provides for some safeguards for the accused and they have been breached and arguably he has lost an opportunity to answer the case against him.  Now, you have to say there is no discretion in those circumstances.

MS ABRAHAM:   Perhaps I will make two points about that:  the first is, this is not actually a good vehicle to test that because a blood sample from Ms Jervis was, in fact, taken and tested, and if that had been different ‑ ‑ ‑

McHUGH J:   Yes, but by the police, by the State; this citizen is entitled to get her own people to look at it.

MS ABRAHAM:   But the State Forensic Science Centre is not attached to the police; it is an independent body.

McHUGH J:   Well it is a government-funded body, no doubt.

MS ABRAHAM:   Secondly, in my submission, that, in fact, the passage that your Honour has been referring to on page 58 is not just referring to the Bunning v Cross discretion, if one looks at the cases that developed the fairness discretion, and those cases are referred to in Swaffield; and thirdly, in my submission, if my friend’s submission is right and what your Honour is putting is right, then unless everything is, in fact, done in accordance to the regulations, done to a T, then the evidence would not be admissible, and, in my submission, that is clearly not what the scheme envisages.

GLEESON CJ:   Thank you, Ms Abraham.  Yes, Mr Peek.  First of all, in relation to Holland, why should we not dismiss the application on the basis that the ultimate outcome of that case is hopeless, from your point of view?  This person made a decision not to have a breath test, because some third party gave advice to that effect.  What difference does it make who the third party is?

MR PEEK:   Well, your Honour, the situation is that, as in so many of these cases, the person is caught unaware, unfamiliar with what his rights are and goes to a general hospital where he knows no one, not a doctor of his choice, and ‑ ‑ ‑

GLEESON CJ:   What if a taxi driver on the way to the hospital had said, “You’d be crazy to have this blood test.”?

MR PEEK:   Understood, your Honour, but here, any person would reasonably and legitimately view the nurse as the agent of the doctor.  It is quite normal if you go to the doctor for a blood test for something else, a nurse will be delegated to do that.

GLEESON CJ:   How old is Holland?

MR PEEK:   So to the uneducated person, that appears to be quite normal and that suggestion ‑ ‑ ‑

GLEESON CJ:   Is your client uneducated?

MR PEEK:   Well, I am sorry, I will withdraw that.  I meant in the ways of the law.

GLEESON CJ:   How old is your client?

MR PEEK:   Certainly a mature person, your Honour.  I do not suggest otherwise.

GLEESON CJ:   We have no reason to believe we are dealing with an uneducated person, who is not perfectly capable of making up his own mind.

MR PEEK:   Yes.  What I meant to convey, quite uncertainly, was in the ways of the law and such a person would view the nurse as the agent of the doctor in the circumstances.  Now, in those circumstances, that person would attach great weight to what was said by a person more experienced that he.  That is my only contention.

GLEESON CJ:   If your argument is right, your client has immunised himself from prosecution by his own decision.  By deciding not to have his blood tested, he has prevented the State from prosecuting him on the basis of the breath test.

McHUGH J:   I would use my time in reply on Jervis’ case, if I were you, Mr Peek.  You might have some hope there; you have got no hope in the other case.

MR PEEK:   Well, your Honour, in Jervis we say that, although my learned friend said that this is a matter that turns on its own facts, in fact the court made it very plain, for example, at page 47, four lines down:

That discretion is a discretion that is available to a court in any criminal proceedings.  It is not a discretion peculiar to the Act or to section 47G.

That where his Honour, at that page that your Honour Justice McHugh particularly discussed with my learned friend was talking about the test, his Honour was saying, relevant impropriety, which clearly restricted it to what had proceeded and gone after what his Honour said in the judgment and, in those circumstances, we say discretion did exist.  If it please the Court.

GLEESON CJ:   In the matter of Holland v South Australian Police, the Court is of the view that the ultimate conclusion reached by the Full Court of the Supreme Court of South Australia to the effect that the magistrate erred in excluding the evidence of the result of the breath test was clearly correct and, on that ground, special leave should be refused.

In the case of Jervis v South Australian Police, the Court is of the view that the facts of the case and, in particular, the existence of part of a blood sample which was available for testing and apparently was tested by the forensic authority referred to in argument, make the case an unsuitable vehicle for testing the issue which the applicant seeks to agitate.  On that basis, the application for special leave to appeal is refused.

AT 10.51 AM THE MATTER WAS CONCLUDED