McLean v Wilkie

Case [2022] TASSC 13

[2022] TASSC 13

COURT:  SUPREME COURT OF TASMANIA

CITATION:                McLean v Wilkie [2022] TASSC 13

PARTIES:  McLEAN, Ryan Robert
  v
  WILKIE, Scott

FILE NO:  LCA 2616/2021
DELIVERED ON:  24 February 2022
DELIVERED AT:  Hobart
HEARING DATE:  18 February 2022
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – Where breath analysis evidence was obtained improperly or in contravention of an Australian law – Breath analysis result of .212 – Police officer's conduct was careless and not reckless – Open to the learned magistrate to find that the desirability of admitting the illegally obtained evidence outweighed the undesirability of admitting that evidence – Motion to review refused.

Road Safety (Alcohol & Drugs) Act 1970, s 6(1).

Evidence Act 2001, s 138.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  F Cangelosi
             Respondent:  V Dawkins
Solicitors:
             Applicant:  Leonard Fernandez Barristers and Solicitors
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2022] TASSC 13
Number of paragraphs:  26

Serial No 13/2022

File No LCA 2616/2021

RYAN ROBERT McLEAN v SENIOR CONSTABLE SCOTT WILKIE

REASONS FOR JUDGMENT  ESTCOURT J
  24 February 2022

  1. The applicant, Ryan Robert McLean, was charged on complaint number 10440/19 with exceeding 0.05 grams of alcohol per 210 litres of breath, contrary to the Road Safety (Alcohol & Drugs) Act 1970, s 6(1) (the RSA), and failing to stop at the scene of a crash contrary to the Traffic Act 1925, s 33(2).

  2. The applicant pleaded not guilty to the complaint and was tried before Deputy Chief Magistrate Daly on 31 August 2021. At the trial evidence was to be led that the applicant had a breath concentration of .212 grams of alcohol per 210 litres of breath, a reading that had been obtained following a procedure that commenced with Constable Pretyman bringing the applicant into a breath testing station.

  3. The admissibility of the evidence of breath analysis was challenged under s 138 of the Evidence Act 2001 (the Act), on the basis of illegality or impropriety on the part of Constable Pretyman.

  4. Section 138(1) relevantly provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of such an impropriety, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which it was obtained. Section 138(3) sets out eight factors which the court must take into account in evaluating those competing considerations.

  5. The terms of s 138 are:

    "138   Discretion to exclude evidence improperly or illegally obtained

    (1)  Evidence that was obtained –

    (a) improperly or in contravention of an Australian law; or

    (b) in consequence of an impropriety or of a contravention of an Australian law –

    is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence…

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McLean v Wilkie [2022] TASSC 13
Case
[2022] TASSC 13
Decision Date

CaseChat Overview and Summary

McLean v Wilkie is an appeal against a decision of the Magistrates Court of Tasmania, concerning the admissibility of breath analysis evidence obtained without proper procedure. The applicant, McLean, was charged with driving with a blood alcohol content above the legal limit. The central issue was whether the evidence obtained from an improperly conducted breath test should be admitted under the Evidence Act 2000. The court had to consider whether the desirability of admitting the illegally obtained evidence outweighed the undesirability of admitting such evidence.

The court first confirmed that the breath analysis evidence was obtained improperly, as Constable Pretyman did not inform McLean that he was required to submit to a breath test under the Road Safety Act, which is a necessary step for enforcing such a requirement. The magistrate correctly applied section 138(1) of the Evidence Act, recognising the evidence as improperly obtained. However, the central issue was whether the magistrate erred in applying section 138(3) by admitting the evidence. McLean argued that the magistrate misapplied the law by finding the desirability of admitting the evidence outweighed the undesirability.

The court held that the magistrate's decision was open to him. The court noted that while the evidence was indeed improperly obtained, it also recognised the importance of the evidence in the proceeding, the probative value, and the nature of the offence. Additionally, the court found that the impropriety was not deliberate or reckless but rather a result of carelessness. The court concluded that it was open to the magistrate to find that the desirability of admitting the evidence outweighed the undesirability. Thus, the motion to review was refused.

No specific orders were made in the case beyond the refusal of the motion to review. The decision affirmed the magistrate's application of the Evidence Act and the factors considered under section 138(3).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The terms of s 138 are: "138 Discretion to exclude evidence improperly or illegally obtained(1) Evidence that was obtained –(a) improperly or in contravention of an Australian law; or(b) in consequence of an impropriety or of a contravention of an Australian law –is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.(2) Without limiting subsection (1) , evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning –(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.(3) Without limiting the matters that the court may take into account under subsection (1) , it is to take into account –(a) the probative value of the evidence; and(b) the importance of the evidence in the proceeding; and(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and(d) the gravity of the impropriety or contravention; and(e) whether the impropriety or contravention was deliberate or reckless; and(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and(g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law." The learned magistrate found that Constable Pretyman was required under the RSA to tell the applicant that he was required to submit to breath analysis and that as she did not do so, she was not exercising, and did not have, powers under the RSA. His Honour held that therefore, whilst the applicant did have a liability to submit to breath analysis, no requirement had been made to enforce his liability. His Honour held that the applicant had discharged the onus on him to engage s 138 of the Act. No complaint is made as to that determination. The motion to review is based on the assertion that the learned magistrate, having reached that initial correct determination pursuant to s 138(1), then misapplied s 138(3) in finding that the desirability of admitting the impugned evidence outweighed the undesirability of the admitting the evidence. The ground asserts "[t]hat the learned magistrate erred in law in admitting evidence he had determined to be illegally, or improperly obtained, contrary to s 138 of the Evidence Act 2000."

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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