FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE AND NETTLE JJ
POLICE APPELLANT
AND
JASON ANDREW DUNSTALL RESPONDENT
Police v Dunstall
[2015] HCA 26
5 August 2015
A5/2015
ORDER
1.Appeal allowed.
2.Set aside order 1 of the orders of the Full Court of the Supreme Court of South Australia made on 25 July 2014 and, in its place, order that:
(a)the appeal be allowed; and
(b)order 1 of the orders of Kelly J made on 5 December 2013 be set aside and, in its place, order that:
(i) the appeal be allowed;
(ii) the order of the Magistrates Court of South Australia made on 20 August 2013 dismissing the charge be set aside; and
(iii)the matter be remitted to the Magistrates Court for further hearing.
3.The appellant pay the respondent's costs in this Court.
On appeal from the Supreme Court of South Australia
Representation
M G Hinton QC, Solicitor-General for the State of South Australia with A C Moffa for the appellant (instructed by Crown Solicitor (SA))
M E Shaw QC with B J Doyle for the respondent (instructed by Caldicott Lawyers)
Interveners
N J Williams SC with G A Hill for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
G R Donaldson SC, Solicitor-General for the State of Western Australia for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Police v Dunstall
Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Section 47B(1)(a) of Road Traffic Act1961 (SA) created offence for person to drive motor vehicle while prescribed concentration of alcohol present in blood – Section 47K(1) of Act created presumption that breath analysis reading corresponded to blood alcohol level at time of analysis – Section 47K(1a) of Act provided presumption could only be rebutted if defendant arranged for blood sample to be taken in accordance with prescribed procedures and adduced evidence that analysis of blood demonstrates that breath analysis reading instrument gave exaggerated reading – Where respondent charged with offence against s 47B(1)(a) and pleaded not guilty – Where breath analysis reading indicated blood alcohol level above prescribed concentration – Where respondent arranged for blood sample to be taken but sample unable to be analysed through no fault of appellant or respondent – Where appellant sought to tender evidence of breath analysis reading – Whether there exists residual common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudicial misuse where admission would render trial of accused unfair – Whether respondent's trial unfair in relevant sense if evidence of breath analysis reading admitted.
Words and phrases – "Bunning v Cross discretion", "Christie discretion", "forensic unfairness", "general unfairness discretion", "Lee discretion", "unfair trial".
[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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AGLC
Police v Dunstall [2015] HCA 26
Case
[2015] HCA 26
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal concerning a charge of driving a motor vehicle with a prescribed concentration of alcohol. The appellant, the Police, sought to tender evidence of a breath analysis reading, which indicated a blood alcohol level above the legal limit. The respondent, Mr Dunstall, had arranged for a blood sample to be taken, but it was subsequently unable to be analysed through no fault of either party. Mr Dunstall argued that admitting the breath analysis reading would render his trial unfair, particularly as the inability to analyse the blood sample prevented him from rebutting the presumption created by the breath analysis.
The central legal issue before the High Court was whether a residual common law discretion exists to exclude lawfully obtained, probative, and non-confessional evidence, where its admission would render the trial of the accused unfair. This involved considering the scope of the "fairness discretion" in criminal proceedings, particularly in light of statutory provisions that modify common law rules of evidence, such as those creating presumptions regarding breath analysis readings. The Court had to determine if the specific circumstances of Mr Dunstall's case, where the intended rebuttal evidence was rendered inadmissible due to circumstances beyond his control, constituted "forensic unfairness" that warranted the exclusion of the prosecution's evidence.
The High Court allowed the appeal, holding that the fairness discretion does not exist to give effect to idiosyncratic notions of "fair play" or to allow a judge to disapprove of statutory modifications to common law proof. The discretion is intended to prevent a miscarriage of justice by excluding evidence that carries an unacceptable risk of unfairness. In this instance, the Court found that the inability to analyse the blood sample, while unfortunate, did not create an unacceptable risk of miscarriage of justice through the admission of the breath analysis certificate. The Court reasoned that the trial would still be conducted according to law, including the statutory presumptions, and that the respondent had not been deprived of a fair trial in the relevant legal sense.
Consequently, the High Court set aside the order of the Full Court of the Supreme Court of South Australia and remitted the matter to the Magistrates Court for further hearing. The Police were ordered to pay Mr Dunstall's costs in the High Court.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside order 1 of the orders of the Full Court of the Supreme Court of South Australia made on 25 July 2014 and, in its place, order that:
(a) the appeal be allowed; and
(b) order 1 of the orders of Kelly J made on 5 December 2013 be set aside and, in its place, order that:
(i) the appeal be allowed;
(ii) the order of the Magistrates Court of South Australia made on 20 August 2013 dismissing the charge be set aside; and
(iii) the matter be remitted to the Magistrates Court for further hearing.
3. The appellant pay the respondent's costs in this Court.
Background
Background to the litigation
The procedures for taking the blood sample are set out in reg 11 of the Regulations. There are 19 in all. A number are addressed to the medical practitioner who takes the sample. In summary, the medical practitioner is required to place the blood in approximately equal proportions in two containers that are supplied as part of the blood test kit[26]. Regulation 11(c) is of relevance to Mr Dunstall's case. This paragraph provides that each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample must furnish two such quantities of blood. The medical practitioner is required to seal each container with a seal that is provided as part of the kit[27]. The medical practitioner must take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the alcohol concentration in the blood from being made[28]. Further requirements are imposed on the medical practitioner as to certification of the samples[29]. Remaining prescribed procedures provide for the delivery of one sample to the person from whom the blood is taken[30] and delivery of the other sample to a police officer or approved courier[31]; the further delivery of that sample to Forensic Science SA[32]; the analysis of the sample by Forensic Science SA[33]; the completion of a certificate by the analyst[34] and the delivery of copies of the certificate to certain identified persons[35]. [26]Regulations, reg 11(b). [27]Regulations, reg 11(d). [28]Regulations, reg 11(e). [29]Regulations, reg 11(f)-(h). [30]Regulations, reg 11(i).[31]Regulations, reg 11(j).[32]Regulations, reg 11(ja)-(jb).[33]Regulations, reg 11(l).[34]Regulations, reg 11(m).[35]Regulations, reg 11(n)-(p).Background and procedural history Jason Dunstall was stopped by police while he was driving a motor vehicle in suburban Adelaide. He submitted to an alcotest, which returned a positive result. He was taken to a police station, at which he provided a sample of his breath for analysis. His breath analysis reading was 0.155 grams of alcohol per 100 millilitres of his blood. Mr Dunstall was informed of his right to have a sample of his blood taken for analysis and he was supplied with a blood test kit. The police drove Mr Dunstall to the Noarlunga Hospital, where a medical practitioner took a sample of his blood. Later attempts to analyse the sample proved unsuccessful because the blood was denatured. Mr Dunstall was charged with driving a motor vehicle when there was present in his blood the prescribed concentration of alcohol[36]. He pleaded not guilty to the charge in the Magistrates Court of South Australia (Magistrate Dixon). At the hearing, over Mr Dunstall's objection, a certificate recording the breath analysis reading was admitted in evidence[37]. Further certificates were tendered in the prosecution case to establish that the operator was duly authorised and that the requirements and procedures relating to breath analysing instruments and breath analysis under the RTA, including those stated in sub-ss (2) and (2a), had been complied with. The medical practitioner who took the blood sample was called in the prosecution case. She had no memory of taking the sample and no knowledge of how the sample had come to be denatured. [36]RTA, s 47B(1)(a). [37]RTA, s 47K(5).
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, KIEFEL, BELL, GAGELER AND KEANE JJ
(dissent)
NETTLE J
(dissent)
Finally, and most importantly, the suggestion that there would be unfairness in the prosecution's reliance on the breath analysis test certificate in circumstances where the doctor's error deprived the respondent of the ability to obtain admissible blood test evidence misconceives the relevant conception of fairness. As was earlier identified, the fairness discretion exists to ensure a fair trial according to law. A fair trial according to law is a fair trial according to law as the law may be affected by statutory modification, and in particular as it may be affected by statutory modification of common law means of proof. The discretion facilitates a fair trial according to law in that sense by enabling the exclusion of otherwise admissible evidence which would be productive of an unacceptable risk of miscarriage of justice. It does not exist to give effect to idiosyncratic notions of "fair play" or of "whether the forensic contest is an even one"[166], still less to deny effect to statutory modifications of common law means of proof of which, because of idiosyncratic notions of what is fair, a judge may disapprove.[166]Police v Jervis (1998) 70 SASR 429 at 446 per Doyle CJ.Conclusion It was not open to conclude that admission of the breath analysis test certificate would be productive of an unacceptable risk of miscarriage of justice and therefore it was not open to exclude the breath analysis test certificate in the exercise of the fairness discretion. For these reasons, the appeal should be allowed and orders should be made in the terms proposed in the joint judgment.