Police v Dunstall

[2015] HCATrans 102

[2015] HCATrans 102

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A5 of 2015

B e t w e e n -

POLICE

Appellant

and

JASON ANDREW DUNSTALL

Respondent

FRENCH CJ
KIEFEL J
BELL J
GAGELER J
KEANE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 6 MAY 2015, AT 10.02 AM

Copyright in the High Court of Australia

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS A.C. MOFFA, for the appellant.  (instructed by Crown Solicitor (SA))

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the respondent.  (instructed by Caldicott Lawyers)

MR N.J. WILLIAMS, SC:   May it please the Court, I appear with MR G.A. HILL for the Attorney‑General of the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR G.R. DONALDSON, SC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear for the Attorney‑General of Western Australia intervening.  (instructed by State Solicitor (WA))

FRENCH CJ:   Yes, Mr Solicitor.

MR HINTON:   If the Court pleases, the respondent in this matter was charged on 8 January with the offence of driving his motor vehicle whilst there was present in his blood the prescribed concentration of alcohol.  The reading returned after breath analysis was 0.155 grams in 210 litres of breath; there is a conversion rate that converts that to 0.155 grams in 100 millilitres of blood.  At his trial, the presiding magistrate – sorry, before I go there, having returned ‑ ‑ ‑

FRENCH CJ:   That is an assumed conversion.

MR HINTON:   Yes, your Honour, and I will take your Honours to the section in the Road Traffic Act in a moment.  Having returned that breath analysis result, the respondent requested, as he was entitled to, a blood test kit.  He took the blood test kit to the hospital as quickly as he could.  Blood samples were taken from him.  They were divided in two.  One was given to him, one was put in the box at the hospital whereby there was an arrangement that it would end up at the forensic science centre.  It turned out that both samples were denatured.  Both samples being denatured, the respondent lost the opportunity to test his sample to determine what his blood alcohol level was and, depending upon that, lost the possibility of leading evidence at his trial that could support an opinion that the breath analysis result was exaggerated.

FRENCH CJ:   Well, is it not the fact that the analysis of the blood sample is necessarily taken at a time later than the time at which the breath analysis is taken and that what is measured is something different, that is, the blood alcohol concentration at the later time?

MR HINTON:   Agreed.

FRENCH CJ:   And then there is a deemed – there is an assumption that is the same for the previous two hours.

MR HINTON:   With respect to blood no, and I will take your Honours to the provisions.  A blood sample is taken, the toxicologist will give you a result, so many grams in a hundred litres of blood, and then by virtue of the time difference you will call the evidence of an expert that allows you to extrapolate from the blood the likely blood alcohol level at the relevant point in time to suggest that the breath analysis was exaggerated.  So you need both, you need the blood sample and the expert opinion on top to account for alcohol elimination rates.

KIEFEL J:   And there is a range of alcohol elimination rates.

MR HINTON:   Agreed, your Honour, yes.

FRENCH CJ:   What about the sample that is tested by the police forensic science people?

MR HINTON:   That is tested and a notice of the result forwarded by the forensic science centre to the – in this case, the respondent.  So two samples, and again I will take your Honours to section 47K and how it works in a moment, two samples.  Police sample taken as soon as possible to the forensic science centre and analysed at the forensic science centre as soon as possible and a notice sent to the respondent of the result and in this case it was denatured and not suitable.

FRENCH CJ:   Does that have any different status from the analysis of the blood sample provided to the respondent?  There are two samples.

MR HINTON:   Yes, yes.  No, it does not, your Honour, because you can then take your own sample and have it analysed.  In this case, that was done, denatured as well.

FRENCH CJ:   The results of each analysis would have exactly the same evidentiary weight, as it were.

MR HINTON:   Yes, yes.  The learned magistrate excluded the evidence of the breath analysis in the exercise of what is known in South Australia as a general unfairness discretion.  The appellant appealed to a single judge unsuccessfully, to the Full Court unsuccessfully and now to your Honours.  The appeal, at one level, is all about the content of the general unfairness discretion - a common law discretion to exclude evidence otherwise admissible and having probative value where to admit it would result in an unfair trial. 

The exercise of that discretion in this case occurs in a particular statutory context, the drink driving laws applicable in South Australia.  It is necessary then that I take your Honours through the drink driving regime because, as your Honours may have already gathered from the exchange between the Chief Justice and I, there is a presumption that operates and, indeed, there are strict rules that apply in relation to the method, the only method, that can be applied to rebut that presumption. 

Can I start by inviting your Honours to pick up the appeal book and go to tab 1 - that is the complaint.  In the third box down at about point 3 on page 2, there is the statement of the charge and the offence‑creating section.  Here it is asserted that the respondent had present in his blood the prescribed concentration of alcohol, as defined in section 47A of the Road Traffic Act, and I will take your Honours to that in a moment.  The offence created by section 47B(1)(a), your Honours will then note, pleaded, it is further alleged that the concentration of alcohol was 0.155 grams in 100 millilitres of blood, an aggravating factor which, according to the common law, must be pleaded as part of the laying of a complaint or an information in South Australia.

Can I then invite your Honours to pick up the joint book of legislation and I will take your Honours to tab 20, the Road Traffic Act.  In this matter we are concerned primarily with Part 3, Division 5, Drink Driving and Drug Driving.  I invite your Honours to look initially at section 47B(1)(a).  From the complaint, your Honours will recall that that is the offence creating section:

A person must not ‑

(a)     drive a motor vehicle ‑

 . . . 

while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.

If your Honours look almost immediately to the left, you will see the definition of the prescribed concentration of alcohol.  In this case it is paragraph (b) that applies:

in relation to any other person ‑ a concentration of .05 grams or more of alcohol in 100 millilitres of blood –

Just returning back to section 47B(1), your Honours will note the penalty for a first, second and third offence is determined by reference to the category of the offence and, indeed, over the page you will note in section 47B(3), in addition to the fines imposed there is a period of licence disqualification.  To determine whether an offence is category 1, 2 or 3 one goes back to section 47A ‑ two pages back ‑ your Honours will see the definition of a category 1, 2 and 3 offence.  I draw your Honours’ attention to the definition of category 3:

means an offence against section 47B(1) involving a concentration of alcohol of .15 grams or more in 100 millilitres of blood –

Your Honours will recall the aggravating factor pleaded in the complaint, this was a category 3 offence.

BELL J:   Mr Solicitor, before you leave the offence, can I just inquire about an aspect of your reply submission in which, very much as a fall‑back position, you appear to accept that if the respondent established relevant unfairness you submit the appropriate course would be a stay.  Then you contemplate that the charge might be proved by alternative means and that contention that there is an alternative way of proceeding for an offence under 47B(1) figures in the respondent’s submissions.

MR HINTON:   Yes, your Honour.

BELL J:   How is it contemplated if one cannot establish by tender of a certificate of the results of breath test analysis how that offence could be established?

MR HINTON:   What is contemplated is that the Crown would not invoke the presumption in section 47K(1), which I will take your Honours to.  We would rely on the common law as to proof of the result of scientific instruments.  In short, we would have to go the long way; it is a scientific instrument, we would have to prove reliability that it had been maintained, good working order, et cetera.  That is a possibility that was open.

Your Honour is quite right.  We leave there hanging the notion of a stay because, of course, as we will come to, when one is talking about the powers of a court to prevent an unfair trial, the nuclear option, if you like, is to refuse to exercise jurisdiction.  Between the nuclear option and granting an adjournment, making directions specifically and so on, there are all manner of options that form part of the common law power, we say, to ensure that a person is not tried unfairly.

FRENCH CJ:   If you had to go down that path, that might put in play the question, for example, of the assumption about the relationship between concentration of alcohol in the breath and concentration of alcohol in the blood, item one; and two, the time of the last drink and what inferences may be drawn about elimination and absorption rates, and so forth.

MR HINTON:   If we prove offence the long way, absolutely.

FRENCH CJ:   Yes, all of that might be in play.

MR HINTON:   Absolutely, so a drink driving charge becomes something that takes an awful long time.

FRENCH CJ:   Yes.

MR HINTON:   Not that that is offered as an excuse, but it explains the regime.

FRENCH CJ:   I think back in the early days in South Australia, and also in the ACT, there were some trials that went for seven to 10 days debating those sorts of points.

MR HINTON:   I would not be surprised if your Honour went through the legislative amendment to the regime and you saw you could match for every amendment and every new certificate an authority.  You will see by plucking the appeal book and just looking behind tab 2, if I could take your Honours quickly to it ‑ ‑ ‑

FRENCH CJ:   Page?

MR HINTON:   Appeal book page 4.  You have the commencement of the trial and what you see is two pages of exhibits, the tender of certificates and statements all designed to overcome exactly what your Honour the Chief Justice just put to me, and your Honour Justice Bell, how difficult it would be – not impossible, of course, but difficult it would be to prove it the long way, if we can call it that. 

Just finishing my answer to your Honour Justice Bell, your Honour Justice Bell is quite right, we leave there hanging the question of a stay because our ultimate submission is when you are considering the exercise of the discretion to exclude evidence for unfairness then you are limited to excluding – sorry, you are limited to determining the consequence of admitting that piece of evidence.  It is the admission of that piece of evidence that must give rise to unfairness in the relevant sense, not any broader notion of unfairness.

If there is a broader notion of unfairness that taints this trial then you must look for a remedy somewhere else, and so we leave hanging because no one has ever made an application for a stay in this case, and were they to do so the inquiry would be different.  We know from Jago, Williams v Spautz and Walton v Gardiner that once you are concerned with a stay you must engage in the balancing exercise that Chief Justice Mason refers to in Jago.  That involves different considerations to determining whether or not evidence which if admitted would give rise to unfairness in the relevant sense.

If I can continue with the legislation I, in passing, draw your Honours’ attention to section 47C(1) purely to point out that a conviction under section 47B(1) does not have the consequence that the record proves that you have been found for other purposes to have been incapable of driving by way of intoxicating liquor or incapable of exercising effective control of a motor vehicle.  So, whilst you are penalised, the penalty is somewhat constrained necessarily by virtue of the artificiality of the exercise, but the artificiality of the exercise is what Parliament has determined is necessary to deal with a significant – I think Chief Justice King described it – social evil.

I invite your Honours to turn over.  I draw your attention to section 47E.  That was the power exercised by the police officer.  It is the power to administer a random alcotest.  Section 47E(1), subsection (2), the power to direct to stop and give “reasonable directions”; importantly 47E(2ab), you cannot require a person “to submit to a breath analysis unless an alcotest” has first been performed.  That occurred in this case.

I pass over 47EAA, not relevant to this case.  I fleetingly draw your Honours’ attention to 47EA, a series of requirements imposed upon police as part of or in the course of exercising their powers to require people to submit to alcotests.  Section 47EB is the conversion that your Honour the Chief Justice and I referred to not moments ago.  I pass over F, GA, GB.  I draw your Honours’ attention to section 47H, power vested in the Governor by notice in the Gazette to identify approved apparatus for breath analysing instruments and alcotests, and your Honours may have noticed in the transcript at page 5 of the appeal book, exhibit P12, there was in this case extracts from the Government Gazette tendered proving that the alcotest and, indeed, the breath analysing instrument used had been gazetted by the Governor.  I pass over section 47(i) but note in passing, because it will answer a question that will no doubt come later, that it deals with compulsory blood tests where there has been a motor vehicle accident, not this case.

FRENCH CJ:   The results of those tests attract a statutory presumption.  Is that right?

MR HINTON:   They can do.

FRENCH CJ:   Section 47K(1a).

MR HINTON:   Can apply, yes, your Honour.  Can I draw your Honours’ attention to section 47IAA.  That is the power to immediately disqualify upon the return of a positive breath analysis.  That was exercised in this case.  I pass over 47IAB, IA and J and come to 47K.  Section 47K is an aid to proof of the fact of concentration of alcohol in the blood.  It was invoked in this case and as per the exchange between the Chief Justice, Justice Bell and I, it is not the only method of proving the concentration of alcohol in the blood and your Honours will see, breaking the section down, that the opening words of the section indicate as much:

Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section –

Then it is permissive -

evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument –

Pausing there, “breath analysing instrument” is defined in section 47A(1) as an instrument:

of a kind approved as a breath analysing instrument by the Governor –

Your Honours will recall not moments ago we paused briefly at section 47H(1) where: 

The Governor may, by notice published in the Gazette –

(a)      approve apparatus of a specified kind –

and as I indicated here, P12, the Gazette notice, was tendered and further proof of that fact was established by a certificate tendered – a certificate under section 47K(5).  If I could ask your Honours to turn quickly over to 47K(5).  Your Honours will see that the content of that certificate proves this aspect of section 47K(1) that we are concerned with.  Indeed, exhibit P14, back at appeal book page 6, was a section 47K(5) certificate.  Turning back to section 47K(1), the next portion, the breath analysing instrument must be:

operated by a person authorised to operate the instrument by the Commissioner of Police –

Here, it was a police officer.  That that police officer was authorised was proven by a certificate provided for in section 47K(3)(a); your Honours will see that over the page.  That certificate was exhibit P11.  I should have remarked that, of course, there is scope to attack every certificate because, for example, 47K(3a) makes plain the certificate proves the fact to which it refers “in the absence of proof to the contrary”.  We see that expression repeated time and again, the certificate provided for by section 47K(3b), “in the absence of proof to the contrary”; subsection (3c), it appears again, subsection (4), the certificate in subsection (5) and, indeed, in subsection (7).

BELL J:   Whilst the certificate certifies amongst other things that the instrument was in working order, it is open to a defendant to lead evidence to the contrary.

MR HINTON:   Absolutely, your Honour.  You could subpoena the maintenance records of the equipment and take it from there, yes.  You could challenge whether or not this person was a sworn member of the police force, yes, your Honour.  Returning to the next portion of section 47K(1), about point 5, here we turn to the significance – sorry, I withdraw that –

where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with –

If I may pause there, the requirements and procedures in relation to breath analysis and breath analysing instruments are that it must be an instrument approved by the Governor; we have been through that.  It must be a test issued only after an alcotest, and I have taken your Honours to section 47E(2a), and the instrument must be in proper working order and properly operated, all that proven by a certificate under section 47K(3)(b) over the page, and again challengeable in the absence of proof to the contrary.  Here, it was exhibit P14 and P10 that satisfied that requirement.  Can I leave 47K(1) there momentarily to take your Honours to 47K(2) ‑ ‑ ‑

KIEFEL J:   Just before you do, the effect of the presumption is that you cannot challenge the reliability of the reading.  It is not open to rebuttal, that is, the conclusion that the machine produces.  That is the effect of the presumption.

MR HINTON:   Yes, save section 47K(1a).

KIEFEL J:   Yes, quite.  I am sorry, I meant that.

MR HINTON:   Yes, so if we go down this route ‑ ‑ ‑

KIEFEL J:   I am sorry, yes, the reliability can only be challenged in that manner.

MR HINTON:   Yes, your Honour.  Section 47K requires that there be a statement of the result provided and that is proven by a certificate – sorry, 47K(2) – that is established or proven by a certificate tendered under section 47K(5), here exhibit P15.  Your Honours will recall that 47K(1) also requires that subsections (2) and (2a) be complied with.  Subsection (2a)(a) refers to:

the prescribed oral advice and . . . the prescribed written notice –

being provided to the person who has provided a breath analysis in excess of the prescribed concentration.  That those things were done by the police officer is proven by a certificate under section 47K(7)(b).  Here it was exhibit P2.  Can I pause a moment longer on subsection (2a) to take your Honours to the oral advice and the written notice.  It is to be found in the regulations behind tab 21 of the joint book of legislation and I draw your Honours attention to regulation 9(1):

The oral advice required . . . in Part A in Schedule 1.

Subsection (2) of regulation 9:

The written notice . . . in Part B of Schedule 1.

If I could take your Honours to those, they are the schedules to the regulations.  They appear at page 4 of the schedules, once you get to the back, pages 4 and 5.  I am sorry, your Honours, we have not paginated the book individually.  The importance for my part in taking your Honours to the prescribed oral and written notice - you will see Part A, the oral advice - is to draw to your attention those paragraphs that make plain that the onus is upon the person who has provided the sample of breath that exceeds the prescribed amount in obtaining a blood sample for the purpose of possibly mounting or rebutting the presumption.  We see that in the oral advice with the opening words of the fourth paragraph:

If you want to have such a blood test you will have to make your own arrangements . . . 

If you obtain a blood test kit and want to have your blood tested, you should –

When it comes to the written notice, similar language used in paragraph 3 – paragraph 3 of the written notice, second paragraph:

In any proceedings against you for such an offence, you will be able to challenge . . . 

·if you have a sample of your blood taken and analysed as described below -

We look at procedures for the optional blood test:  you may, you must, you should and so on.  That will become significant as part of our argument.  It is clear that there is no obligation on the police to assist or facilitate the taking of the blood test in any way and the oral advice and the written notice make that plain - “you must”. 

Up to this stage the only obligation that the police have is - turning back to section 47K(1) - actually in section 47K(2a)(b).  One of the problems about this legislation is if you amend after every time you get a judgment you end up with a patchwork quilt – 47K(2a)(b), your Honours will see that after the oral advice is given and the written notice provided, if a blood test kit is requested it must be provided.  That occurred in this case.  Returning to section 47K(1), if all those conditions are met then we have the presumption:

it must be presumed –

We have those words -

in the absence of proof to the contrary –

So, as your Honour Justice Kiefel has pointed out, it is a rebuttable presumption -

in the absence of proof to the contrary –

That language long been construed as reversing the onus of proof and imposing a standard, proof to the contrary, the civil standard.

KIEFEL J:   Mr Solicitor, where is the provision for the quantity of blood that has to be taken?

MR HINTON:   Upon the presentation of the blood test kit?  We find that in regulation 11 and if your Honour will bear with me, I will finish with section 47K and then when we deal with the manner in which you rebut the presumption we necessarily have to go to regulation 11.

KIEFEL J:   Thank you.

MR HINTON:  

it must be presumed . . . that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis –

presumption one –

and throughout the preceding period of 2 hours –

presumption two.  So the availability of the presumption is conditional on compliance with the requirements and procedures with respect to breath analysing instruments and breath analysis.  If those requirements and procedures are met the two presumptions bite.  In my submission, pausing there, section 47K(1) is an aid to proof that functions as a rule of evidence.  It is a means whereby a particular fact, the concentration of alcohol in the blood at a certain time, may be proven, and not just that.  Not only is it a rule of evidence but it necessarily affords the fact a certain probative value.  By that I mean, absent proof to the contrary, it would be taken to prove the concentration of alcohol in the blood for the two hours preceding the analysis.  So it is an aid to proof and if there is no evidence in rebuttal it is given a probative value.  It is sufficient to prove Parliament has said the elements of the offence, or the only other element you would have to prove is the fact of driving. 

FRENCH CJ:   Really the offence looks like driving at any time within – having a blood alcohol concentration in excess of a certain level within two hours of last driving the car, regardless of whether you have consumed alcohol in the meantime.

MR HINTON:   When prosecuted this way, absolutely, and that was the point made by Chief Justice Kourakis in his judgment.  If it is prosecuted the wrong way, of course, it is not susceptible to that description.  But prosecuting it this way, your Honour the Chief Justice is quite right and, indeed, Chief Justice Kourakis was quite right in his description.  We will just locate that paragraph in his Honour’s judgment.  I turn then to section 47K(1a).  In my submission, section 47K(1a) is also a rule of evidence.  It limits the type of evidence that may be received in rebuttal of the presumption, and not just the type of evidence but the means – the means or the requirements or the way in which that evidence must be obtained.

Before going and taking your Honours to regulation 11 then it is important to note these two rules of evidence.  If no blood test kit is requested under section 47K(2a) after the oral advice and the written advice are administered and the requirements and procedures in relation to breath analysis instruments and breath analysis are all proved, then the presumption will sustain a conviction.  Now, it is true that section 47K(1a) gives rise to an implication that blood analysis is superior to breath analysis, but it cannot be said that breath analysis is inherently unreliable and cannot sustain a conviction.  Parliament says in 47K(1) ‑ ‑ ‑

FRENCH CJ:   Parliament puts to one side the question of reliability.  It just attaches statutory consequences to a reading within two hours of driving.

MR HINTON:   Absolutely, your Honour, which makes it difficult when we deal with this offence to think of proof beyond reasonable doubt because we are talking about proof by virtue of satisfying that which Parliament has identified.  So, if I can invite your Honours then to pick up the appeal book, we embrace the conclusions arrived at by Chief Justice Kourakis at appeal book pages 88 to 89, paragraphs 24 to 27:

Section 47K(1a) . . . gives no procedural or substantive right to a defendant . . . it restricts the evidence which a defendant may adduce in rebuttal of the presumptions –

The point made a moment ago in the course of the interchange between your Honour the Chief Justice and I, if there is no blood sample –

In such a case the absence of a defence case in rebuttal does not make the adjudication of the issues . . . in any relevant sense forensically unfair.

FRENCH CJ:   Well, you would accept that unfairness in the general sense, if one wants to make that judgment, is embedded in the legislation itself because the reading taken by the breathalyser may reflect, when linked to the two‑hour presumption, a blood alcohol concentration that is higher than what was actually the case.  On the other hand, it might also reflect the blood alcohol concentration that is lower than what was actually the case.  One just does not know, and that does not enter into it.

MR HINTON:   A point made by, I think, the expert, Dr Collins, in this case.  You do not know whether you are in the absorption phase or the elimination phase; your Honour is quite right.

KIEFEL J:   The absorption phase lasts for about an hour or so after the last drink, does it not, something like that?  It peaks and then reduces.

MR HINTON:   I think that is the evidence he gave, and then the absorption phase, I think he said, is amongst us all pretty common, but it is the elimination phase which is unique ‑ ‑ ‑

KIEFEL J:   Which has the variability.

MR HINTON:   Yes.  Over the page:

The evaluation and determination of those issues is not in any way dependent on the existence, or absence, of a defence case –

At 25 –

There is simply no forensic unfairness of the evaluation of a prosecution for an offence against s 47B of the RTA which relies on the evidentiary aid in s 47K –

In paragraph 26 –

If, in any relevant sense, it could be said that a driver has a procedural right –

and I will deal with that in time –

to have his or her blood tested, it can then be accepted that a person who loses the opportunity to adduce evidence of that blood analysis, through no fault of his or her own, suffers a forensic disadvantage –

Paragraph 27 –

However, a driver/defendant has no such right.  The right cannot be found in s 47K(1a) of the RTA –

And further on in paragraph 27 –

it does not, in any sense –

section 47K(1a), that is –

give a right to call that evidence . . . [the section] allows for a check against the operation of the presumptions enacted by the other provisions of that section –

that may be admitted, but –

It is a completely different proposition to suggest that s 47K(1a) of the RTA confers a right on the defendant –

and whilst I have that open, if the Court pleases, it was paragraph 55 where the Chief Justice sets out what proof of the offence in this matter requires.  Those sentiments expressed or those conclusions expressed by the Chief Justice in this case were the same as those expressed by Chief Justice Doyle in the South Australian authority of Police v Hall.  That was a five member bench assembled to determine the content, it would seem – sorry, to determine the content of the general unfairness discretion in the context of drink‑driving cases in South Australia.

Your Honours will note from our written submissions, and our submissions made on the application for special leave, that the outcome in this case stands at odds with the majority decision in Police v Hall.  What I wanted to refer your Honours to, in particular, was the observations made by Chief Justice Doyle in Police v Hall 95 SASR 482 at paragraphs 48, 49 and 50. It is the same point, with respect, as I have made to your Honours not moments ago and that is that the evidence, as his Honour says:

of the concentration of alcohol indicated as being present by the breath analysing instrument is not unreliable evidence.

Now, that is important when one comes to consider the content of the general unfairness discretion.  It is not unreliable.  The section treats it as reliable.

FRENCH CJ:   Questions of reliability just do not enter into it.

MR HINTON:   Not in this case, no, your Honour.

FRENCH CJ:   The legislation subject to the defence evidence which might show the result as exaggerated, the statutory presumptions have nothing to say about reliability.

MR HINTON:   Agreed.  So when one comes to the content of that discretion, whatever unfairness one points to, it cannot be one that suggests that breath is inherently unreliable, therefore, because we do not have a blood sample our trial will be unfair if it proceeds.  That is my point.  I draw your Honours’ attention also to paragraphs 49 and 50 of Chief Justice Doyle’s judgment.  In this case, as I have indicated, section 47I and the related schedule to 47I are inapplicable.  This was not a motor vehicle accident.  So here we are concerned for the purposes of section 47K(1a)(a) with a blood sample taken in accordance with the procedures prescribed by regulation, the regulations are to be found behind tab 21 and, in particular, regulation 11.  It is here in regulation 11 that we find the answer to your Honour Justice Kiefel’s question about the quantity.  Regulation 11(a):

the person must cause the sample to be taken –

The person is the person to whom the blood test kit has been delivered, that is, the person who has provided a sample of breath indicating that they have greater than the prescribed concentration in their blood.  They must provide it.  They must cause the sample to be taken by a medical practitioner of their choice and they must deliver the kit to the medical practitioner.  No responsibility borne by the authorities at all. 

It is important to note and point out to your Honours that regulation 11 has a predecessor, and so if you are taken by my learned friends to some of the older South Australian cases such as French v Scarman in particular, one must be cautious to look at the difference.  In French v Scarman the regulations at the time required the police to do all necessary to facilitate the taking of blood.  It cast a duty upon them. 

So there, where the police despite a request being made did nothing, there that action enlivened the public policy discretion.  By dint of amendment to regulation and legislation, that obligation has now been removed.  French v Scarman was an important authority to both Justices Sulan and Gray in their judgments in the court below.  The Chief Justice distinguished it on this ground.  It was concerned with a different discretion, firstly, and it was concerned with a regime that was different to the regime that currently exists in South Australia.

The police responsibility here ceases with the provision of the approved blood test kit and does not become re‑engaged again until such time as they are required to pick up one of the blood test samples from the relevant hospital where it is taken.  Regulations 11(b) through to (j) are directions to the medical practitioner.  Your Honour Justice Kiefel, you will see in (b), a sample of a person’s blood must be taken and then it must be divided in approximately equal proportions and put in the two containers provided as part of the blood test kit.  Your Honour will note regulation 11(c), no direction as to quantity save “a sufficient quantity of blood to enable an accurate evaluation”.  In addition to (c), your Honour will see regulation 11(e):

to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate –

Again, that in effect is a reference to quantity.  After that, the provisions relate through to (j) to identifying the sample handing over one of the two samples, depositing the other sample.  From regulation 11(j) onwards we deal with one sample being conveyed ultimately to the forensic science centre and analysed and a notice of that being given.  The notice provision is to be found in regulation 11(n), and another of the samples being given to the individual.

Pausing there, we embrace the Chief Justice’s conclusions at paragraphs 30 through to 36 of his judgment in the appeal book at pages 90 to 91 and, indeed, the quotation in paragraph 33 from the judgment of Chief Justice Doyle in Police v Hall. Although regulation 11 may speak in terms which might appear to cast a duty on a medical practitioner, it cannot do so. The Chief Justice explains why at 30 and 31. It does not confer a right at 32. Chief Justice Doyle arrived at the same conclusion in Police v Hall.  At paragraph 34, Chief Justice Kourakis states that:

The word “must” appearing in reg 11 mandates the procedures which “must” be attended to –

but does not give rise to any duty.

FRENCH CJ:   Well, they are things that the medical practitioner must do once the medical practitioner agrees to take the blood sample.

MR HINTON:   Yes, but the significance of concentrating on rights and duties is that again when we come to the content of the unfairness discretion, it is a discretion that overlaps with the public policy discretion.  So unfairness could arise where a right is trammelled that gives rise to a forensic advantage for the prosecution, or unfairness could arise, particularly in the confessional arena, where an accused has rights but is not made aware of them and had they been made aware of them they would have exercised them such that the confessional statement would not have been made.

NETTLE J:   Do you accept that if there were a duty on the doctor to take the samples correctly, the fairness discretion would be engaged?

MR HINTON:   I accept that that would be a factor, yes, your Honour, yes.

NETTLE J:   A factor only?

MR HINTON:   Yes.

NETTLE J:   It would not necessarily follow, would it?

MR HINTON:   Not necessarily, no, your Honour.  Then your Honour is going to ask me, well, what else would we take into account.

NETTLE J:   I suppose whether he did it by accident or so forth.

MR HINTON:   Yes, your Honour, but we would be looking again at the unfairness of the trial.

NETTLE J:   I raise the question because the regulation does use the word “duty” which is an odd choice if all that he is doing is prescribing the requirements to make something admissible.

MR HINTON:   It is, your Honour, and the Chief Justice provides a reason why it should be read down as not being a duty because of the nature of the regulation‑making power.  It certainly does not raise the public policy discretion.  Could it give rise to unfairness, the question would be the breach of the duty, has it resulted in an unfair trial by virtue of the admission of the evidence -breath analysis?  My answer actually would be the same now I think it through.  There would be nothing unfair attaching to the reception of the evidence of the breath analysis. 

Now, whether or not the breach of duty gives rise to another remedy, and your Honour may recall I floated the idea of a stay, a different question.  But we are concerned with the content of the general unfairness discretion, and that focuses upon reception of this piece of evidence, and for that reason my answer would be even if it is a duty there is no relevant unfairness here.

FRENCH CJ:   Why cannot one say that once the medical practitioner assumes the responsibility of taking the blood sample that there are obligations that follow?

MR HINTON:   I pray in aid, the practical answer given by the Chief Justice in particular, I think it is at paragraph 36 at page 91 ‑ paragraph 35, and I start by observing ‑ your Honour the Chief Justice, I think, qualified your question to me by saying, if he chooses to take the sample ‑ ‑ ‑

FRENCH CJ:   Yes, I am assuming no duty to actually accede to the request to take a blood sample but once the practitioner agrees to do that ‑ ‑ ‑

MR HINTON:   Yes.  The practical answer is given by Chief Justice Kourakis at 35.

FRENCH CJ:   Well, that seems really to relate to whether ‑ ‑ ‑

MR HINTON:   The decision

FRENCH CJ:   ‑ ‑ ‑ he chooses to do it or not.

MR HINTON:   What it does do, undoubtedly, is impose a series of requirements that must be met in order that the blood sample can then found any possible defence of exaggeration.  At paragraph 3 of our oral hand up, I refer your Honours to Williamson v Ah On.  I do not need to take your Honours to it.  No doubt it is an authority that has been referred to many times.  I am aware of that myself, of course.  It is a case about the use of averments in the Migration Act to prove facts.

The reason I refer your Honours to it is in particular what falls from Justice Isaacs at page 108, where he refers to it being within the power of Parliament, and I appreciate we are not talking about an invalidity question here, but it is within the power of Parliament to pre‑appoint evidence:

to fit the special circumstances in the interests of justice ‑

Your Honours may recall that there, to defeat an averment, that someone was an immigrant, an alien, that person had to give evidence, and not only did they have to give evidence, but that person, the alleged alien, had to state the name of the vessel on which they arrived in Australia and the date.  My point, there is an authority that identifies legislation that deals with a particular issue and proscribes a particular way in which an allegation may be defended and that is what we have here.

At paragraph 3 of our oral hand‑up, I also refer your Honours to Rodway v The Queen.  Again, I do not need to take your Honours to it.  Everyone has read that case because, of course, it is the seminal case on when legislation is retrospective or not.  But, at the same time, it dealt with a question of the removal of the requirement for corroboration before you could convict of a sex offence.  So Mr Rodway was saying “I want to be prosecuted according to the old way where you had to have corroboration”.  The reason why I have referred your Honours to that authority is the point made at 521 by the Court where they say:

A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.

As I have been at pains to point out, section 47K(1) is a rule of evidence and section 47K(1a) is equally a rule of evidence.  Section 47K(1a) pre‑appoints the evidence to fit the special circumstances dealt with by section 47K(1).  No one has a right who commits the offence created by section 47B when prosecuted invoking section 47K(1) to be tried in any other way other than by virtue of the practice and procedure that it provides for. 

In this case, moving to paragraph 4 of my oral hand‑up, the learned magistrate found, appeal book page 44 at paragraph 14 of his Honour’s judgment, that both of the samples taken in purported compliance with regulation 11 by the doctor had denatured.  Both had denatured because his Honour concluded:

it is more likely than not that the procedures set out in Regulation 11(c) . . . have not been complied with –

Regulation 11(c):

each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol –

and so on.  That finding of fact was not challenged below and is not challenged here.  That is the context in which we turn to consider the exercise of the general unfairness discretion.  I prefaced my submissions on the general unfairness discretion with the following.  In South Australia it is the judgment of the Full Court in a case called R v Lobban that is taken to be the seminal authority on the general unfairness discretion.  I will take your Honours to it in a moment.  Lobban, your Honours might be surprised in a way, was only decided in the year 2000. 

You will find in many authorities dicta as to the existence of an overarching discretion – a residual discretion, some describe it as – to exclude any evidence, any admissible evidence, of probative value where to admit it would give rise to an unfair trial.  The difficulty then is to find a case where it has been exercised.  More often than not the authorities devolve to one of three discretions:  the Bunning v Cross discretion; the particular rules that apply to confessional evidence – an unfairness discretion, it is referred to – and then the Christie discretion, the discretion to exclude evidence that is more prejudicial than probative.

When we look at Lobban, your Honours will notice that in that case the primary judgment is of Justice Martin.  He looks at this question of the existence of the general unfairness discretion despite the dicta, because Swaffield and Pavic, which is a case about confessions and the applicable discretions, makes mention of the three discretions that I have just referred to, but does not make mention of any overarching discretion to ensure unfairness.  That travels beyond confessional evidence.

The appellant does not contend that there is no overarching discretion.  We contend that a discretion to exclude evidence where to receive that evidence would give rise to an unfair trial is an aspect of the power or the common law right of an accused not to be tried unfairly.  The starting point, in our submission, is that fundamental precept, as Justice Deane terms it, that everyone has a right not to be tried unfairly.

At paragraph 5 of our oral hand‑up, we refer your Honours to Dietrich v The Queen, and we provide your Honours with the references in the various judgments in that case, and in Jago, because there, your Honours will find statements as to the existence of the fundamental precept, statements that that fundamental precept gives rise to all necessary power to ensure a fair trial, concluding ultimately with what I have called the nuclear option; stay the trial.

In Dietrich, Chief Justice Mason and Justice McHugh – if I could take your Honours to Dietrich 177 CLR 292, in particular at pages 299 to 300 under the heading at point 8 of the “Right to a fair trial”, your Honours will see “more accurately expressed in [the] negative”. Then the very last line:

The right is manifested in rules of law and of practice –

including the power to prevent an abuse.  No judicial attempt to list exhaustively the attributes of a fair trial.  Importantly, their Honours point to the appellate process as the origin of the power.  If you can set aside a conviction for being unfair then the trial judge must have all power necessary to ensure the trial is not conducted unfairly.

BELL J:   But that does raise this issue, does it not?  The trial judge does not have a power to reject the evidence of a witness because the trial judge considers that witness is an unreliable witness, because that is an exercise in fact finding for the jury.  It follows from that that a trial judge does not have the power to direct a verdict at the close of the Crown case because of a consideration that the evidence is incapable of supporting the prosecution case, while the appellate court does have that power. 

The appellate court may conclude that the evidence was of an unsatisfactory nature such that it was not capable of supporting the conviction that one might characterise as a form of miscarriage.  So it would not be right to say that on any occasion in the course of a trial where the trial judge perceives that a course taken – in this instance to receive the admission of the evidence of a witness who presents as unreliable will occasion a miscarriage – results in an unfair trial, because it is to trespass on the functions of judge and jury, it is the point that was made in Doney v The Queen. 

So I am just taking up with you, Mr Solicitor, the question of quite the breadth of a proposition if it is expressed – if the notion of an unfair trial is viewed as synonymous with the obligations of the appellate court reviewing the trial in terms of the capacity of the evidence to support the conviction.

MR HINTON:   There is a lot in what your Honour has put to me and if I could deal with it piece by piece.  Firstly, whether or not a trial judge has power to reject evidence on the grounds of unreliability, as I recall, there is not an authority that says no, never.  It is an ongoing debate particularly in the cases about accomplices, but there it has been decided leave it to the jury.

BELL J:   Yes.

MR HINTON:   But I do take your Honour’s point, and it is a point made in the Victorian authority of, I think it is Rozenes v Beljajev.

NETTLE J:   Also Dupas.

MR HINTON:   Thank you, your Honour, about – well, Rozenes I have more in mind because it is definitely a case about the general unfairness discretion, and there their Honours caution that whilst reliability is part of this, for the very point your Honour makes, you would have to be very, very slow before you exercised the discretion to exclude evidence on the basis of unreliability.  So my answer to your Honour would be reliability could be, can be a basis to exclude but it will be a rare and exceptional case.

BELL J:   When one speaks of it in terms of whether reliability is a basis for the exclusion of evidence, plainly it is.  It informs the unfairness discretion but that is in the particular category of confessional statements excluded for the reason that by - in consequence of some misconduct there is a question that affects the reliability of that evidence.  The matter I was raising with you really, Mr Solicitor, was the question of a judge forming a view that a particular witness by reason of demeanour or capacity or something of that character is assessed by the judge to be completely unsatisfactory.  The judge would not be authorised, assuming the witness is giving relevant evidence, to reject it, surely?

MR HINTON:   I would agree with your Honour, that would not enliven the discretion but I would not go so far as to say that reliability of evidence, evidence not being confessional evidence, could never be a ground to exercise the discretion.  It would be a rare case.  That is led, I think it led again the Court of Appeal in Victoria to conclude that this general unfairness discretion, once you go through the list, it is really going to have little work to do, particularly when you are dealing with real evidence.

BELL J:   That is why – I mean, some of these statements when one speaks of a general unfairness discretion one can go right back to Justice Gibbs in Driscoll where, I think, there is a statement to that effect and you find it in every decision that talks about this discretion.  But his Honour was there, as the balance of his remarks make clear, speaking of the Christie discretion.  An issue arises as to what outside the recognised categories is left in the unfairness discretion.

MR HINTON:   I am glad your Honour raised that because in the Commonwealth’s list they refer to the case of Roach v The Queen, a case concerning the construction of section 132(b) and 130 of the Evidence Act 1977 (Qld). Section 130 gives what appears to be a general discretion to exclude evidence for unfairness. The question in that case was how do you fit Pfennig and similar fact evidence into these rules.

But, in passing, the Court, in the joint reasons, says that section 130 reflects what is a common law discretion and then a common law general unfairness discretion – I think it terms it the “residual discretion”. Then – yes, do your Honours have it, volume ‑ ‑ ‑

KEANE J:   242 CLR.

MR HINTON:   Thank you, your Honour, 242 CLR, in particular paragraph 11.  There again is dicta, the last sentence:

Section 130 –

which appears above in paragraph 10 –

confirms the operation of what is sometimes referred to as a “residual discretion” at common law –

So again an acknowledgement of this creature.  Then, interestingly ‑ ‑ ‑

KEANE J:   At paragraph 29 at page 621.

MR HINTON:   Thank you, your Honour.  I have misplaced my marked‑up copy but, your Honours, consistent with what your Honour Justice Bell has put to me, go on then to say this discretion has to be exercised against the background of the general discretion.  There, their Honours were particularly talking about the Christie discretion.  They look at the general unfairness discretion through the prism of the Christie discretion.  Justice Heydon, in his judgment at paragraph 60, gives it some additional work to do.  Paragraph 18, if your Honours please:

So far as concerns the application of the “residual discretion” to which s 130 refers . . . it is difficult to see how unfairness could be tested otherwise than by reference to the more general discretion. That is to say, consideration must be given to whether the prejudicial effect –

and so on, so consistent with what your Honour just put to me to be the approach of Chief Justice Gibbs in Alexander’s Case.

NETTLE J:   Did you say you just read from paragraph 80?

MR HINTON:   Paragraph 18, sorry, your Honour.

NETTLE J:   Paragraph 18, thank you.

FRENCH CJ:   By the way, does “probative value” pick up the notions of reliability?

MR HINTON:   It would have to.  If it is totally unreliable, then it is without probative value.  But the point in going to Roach was again we have dicta indicating the existence of this creature.  We have some indication as to its content.  It overlaps with what we call the Christie discretion, more prejudicial than probative, but in South Australia, when the Full Court came to consider it in Lobban, it did so against the background of this Court’s treatment of confessional evidence in Swaffield.  I have found my note - paragraphs 11, 18 and 34 of Roach and 60.  I apologise to your Honours, I mislaid my marked‑up copy but I have noted those paragraphs.

Can I take your Honours to Swaffield and Pavic and my reason for doing so is, again, I am looking at the content of this discretion. So far I have dealt with the question of reliability, focusing upon what section 47K does and, in the course of dealing with the statute, I have looked closely at whether or not it creates or vests a right in the accused to a blood sample or to a particular defence and, in my submission, it does not.

Swaffield is a case dealing with confessional evidence.  It is actually two cases.  The question in Swaffield was whether a conversation had with an undercover police officer, who knew that Mr Swaffield had previously been arrested for murder but then let go, who posed as a drug buyer buying drugs from Mr Swaffield and was wired up, the question was whether or not adverse statements made in relation to the murder and recorded should have been excluded at the trial.

With respect to Mr Pavic, the police used a friend of his as an agent to attempt to obtain inculpatory statements from him and did so successfully and the question was whether or not those statements should have been excluded in his trial. Can I take your Honours, it is 192 CLR 159, to page 188 and paragraphs 50 to 52 of the joint reasons. At paragraph 50, the second full sentence, their Honours identify the four bases for the rejection in this case of the out‑of‑court statements, the confessions - the first, peculiar to confessions, and that is the rules with respect of voluntariness; at paragraph 52, the second, unfairness.

Now, at this point there is a long line of authority dealing with the exercise of a discretion to exclude confessional statements, admissions for unfairness.  Here, their Honours identify the rationale.  The purpose of the discretion is to exclude evidence for unfairness to protect the rights and privileges of the accused person.

Your Honours will no doubt think straightaway of course we have the caution, of course we should not interview people who are intoxicated.  There are the special - I think they are called the Anunga rules with respect to Aboriginal people and so on.  It is those sorts of rules that bite on a confession that either constrained the power specifically - these days you must videotape - or vest a right in an accused which, were they aware of it and in a position to exercise it, may not then make the confession.  So the unfairness discretion with respect to confessional statements focuses on the protection of rights and privileges.

FRENCH CJ:   Well, an accused person, without getting into Hohfeldian analyses, can be said to have a right to challenge evidence brought by the prosecution against the accused.  In this case, the legislation has narrowed that right, as it were, limiting it in relation to the actual blood alcohol concentration to an opportunity to provide evidence of a subsequent blood test and the inferences that might be drawn from that.  That is what we are really talking about here.  Where the blood test, for whatever reason, is not able to be used, the accused has lost that opportunity.

MR HINTON:   That is what we are talking about but we are there talking about a right in a very general sense as opposed to a right with respect to which a discretion to exclude evidence is concerned to ensure that a trial is fair.  I come back to - and I am sorry if I sound like a broken record - but we are concerned with whether or not to receive the evidence of breath analysis.  That is what is excluded.  To receive the evidence of breath analysis would give rise to an unfair trial.  So in that context we look at what right ‑ ‑ ‑

FRENCH CJ:   In the circumstances in which the only opportunity to challenge that evidence has been lost not through the fault of the defendant.

MR HINTON:   I accept that.  I accept that but in terms of principle and rationale, what is unfair about this evidence.  I accept by virtue of the doctor’s mistake you do not have the benefit of blood sample and what that might, might not lead to.  But over here when I look at the breath analysis evidence, what is unfair about it?

GAGELER J:   Mr Solicitor, the aspect of the fair trial with which we are concerned is the ability of an accused to lead evidence in answer to evidence put against him by the prosecution.  I think that is the aspect of the fair trial with which we are concerned.  The difficulty here might be that this offence could have been proved in a number of ways, as you have said, but it is sought to be proved here by breath analysis evidence.  The only way in which that particular evidence can be answered consistently with this statutory scheme is in accordance with section 47K(1a) which requires compliance with the regulations. 

Here, the accused triggered the procedure set out in those regulations – in regulation 11 - but through the fault of someone else the failure to discharge - we will call it a responsibility, a statutory responsibility cast on someone else - that method is not available.  Why is that not the particular unfairness that results from this particular evidence being admitted?  Why does it not go to the fairness of the trial?

MR HINTON:   Again, there are a number of parts to that.  It does not result from the admission of the evidence.  The evidence itself does not give rise to that – that is the evidence of breath analysis does not give rise to the unfairness that your Honour has identified.

GAGELER J:   It is evidence that cannot be answered.

MR HINTON:   Well, that is a different question.  It is not unfair – the evidence is not more prejudicial than probative, it is not obtained upon trammelling some right, it is reliable.  The evidence itself, if admitted, does not give rise to an unfair trial.  As your Honour has pointed out, if there is unfairness, it is the product of an inability to run a particular defence based upon evidence which might, and I emphasise might – might not – provide a factual basis to lead a positive defence case of exaggeration.  If there is any unfairness, that is where it lies, but not with the reception of the breath analysis evidence. 

The discretion to exclude evidence must be exercised on a principled basis.  What is the principle that says that evidence in its operation if received will result in an unfair trial?  Nothing, with respect.  What may, may result in an unfair trial is the failure to comply with regulation 11 but that does not tell you anything about – or that does not indicate that the evidence itself is unfair.

NETTLE J:   So what are you saying?  It is possibly a Jago if it were anything?

MR HINTON:   We floated it, we have left it there – a different inquiry not run, yes.  A balancing exercise and then a very tricky balancing exercise that we do not ask your Honours to engage in because, of course, if for no other reason on that exercise you could call evidence such as, well, how reliable are these breath analysing instruments?  You could get some sense of how reliable they are.  Then, of course, you could get to the point where you say, well, maybe we have a category two or a category one as part of that balancing exercise – a very different inquiry.  Your Honour Justice Gageler’s identification of where the unfairness might lie is a source different to the evidence.

KIEFEL J:   What you have identified in your exchange with Justice Gageler is that from your perspective the correct starting point is the question, should this evidence of the breath analysis be received, and what you have said is it is the question of the, to use a neutral term, unfortunate circumstance relating to the blood sample is not relevantly connected, cannot provide an answer to that question.

MR HINTON:   Yes, your Honour.  We are dealing with a discretion to exclude evidence, a residual discretion.  What is the content of it?  We have looked at reliability, trammelling of rights; none of that arises here.  So on what principal basis can we say that the reception of that evidence would cause an unfair trial?  With respect, in my submission, the answer is none, and the Chief Justice in the minority was correct in his conclusion.

KEANE J:   In Swaffield, there is reference to the circumstance that the discretion must be there because there can be cases where the prosecutor has done everything according to law but, nevertheless, it is unfair.  Is there any case where this general unfairness discretion has been said to be engaged in circumstances where there is a conviction, in circumstances where one can tell from looking at the legislation that the legislature actually contemplated that very possibility?  In other words, for example, in this case, the legislature contemplates that the accused has only one way of rebutting the presumption, and that is to get this evidence from a doctor of his or her own choice.

The legislature changed the law as it had been in French v Scarman to make it tolerably clear that if that opportunity failed for reasons other than the fault of the prosecuting authority, the one way available to the accused of rebutting the onus would be lost.  In other words, the legislature contemplates the possibility that there may be a failure on the part of the accused to take advantage of the only avenue of rebutting the presumption.  Is there any case where this residual discretion has been held to operate so that a court says the legislature contemplates there can be a conviction in these circumstances, but it is unfair?

MR HINTON:   I cannot point your Honour to a case.  If your Honour said, go off and look, I would start looking in the realms of the older migration laws and customs laws where particular problems at particular times in our history were being addressed, such as Williamson v Ah On.

KEANE J:   Once you have a reversal of the onus, the prospect that an accused person against whom an onus is reversed will not be able to get the evidence, or may lose evidence that might otherwise have been available, would always have been present.  That would always have been a live possibility.  One then asks about cases like Williamson v Ah On; are there any cases where those chickens have come home to roost, where evidence has been lost?  Is there any case where a conviction has been held to be unfair, or where the trial has been held to be unfair because the accused has not been able to marshal the evidence to discharge the onus?

MR HINTON:   My learned friends refer to a South Australian case of Holmden v Bitar, it is on their list.  As I recall, it is a case involving importation of some pâté and between seizure of the five cans and prosecution the content was destroyed.  With the destruction, of course, went the opportunity to test the nature of the meat.  That caused Justice Cox – I cannot recall, we either stayed the case, a very early example of a stay, or dismissed the – set aside the conviction.  I cannot recall which.  That case would be dealt with, in my submission, in a very different manner were it to arise today.

KIEFEL J:   In that case, the evidence was destroyed by the quarantine officers themselves, so it was dealt with on the basis of an abuse of process.

MR HINTON:   It was not, but that is the reason for my submission, it would be today.  So, I am not sure that it foots your Honour Justice Keane’s bill and, of course, had it been heard today references that Justice Cox makes to, well, you kept the labels and you had these other things, would all be thrown into the balancing exercise.  So it is not a neat authority, but it is an example of where destruction has led to the dismissal of a complaint because of, you could say, unfairness associated with the prosecution.

KEANE J:   Where the prosecution itself has destroyed the means and the only means of rebutting the defence, it really is not very hard to see that the discretion arises in such a case.

MR HINTON:   Your Honour is quite right.  Again, the reason for me going back and saying no obligation on the police, we did not destroy anything, we did not do anything.  We have our own problems in getting our evidence together, this is your problem.  So I was dealing with Swaffield.  My aim in dealing with Swaffield was to give content to the unfairness discretion, and in the joint reasons we see at paragraph 52 it deals with the protection of rights and privileges of the accused.  We see in paragraph 54 that it overlaps with the public policy discretion necessarily and includes evidence that may not have been obtained if the authorities acted properly.  In paragraph 78 of the joint reasons we see, consistent with the discussion that passed between Justice Bell and I, that it also includes considerations of unreliability.

FRENCH CJ:   Is it too simplistic to draw an analogy between this case and the case in which in a criminal prosecution a vital defence witness whom can be shown would have given evidence of great significance to the defence does not turn up for some reason which is not the fault of the accused?  Is that the class of misfortune we are dealing with?

MR HINTON:   In my submission, that is the area we are in because if that were to occur it does not enliven a discretion ‑ ‑ ‑

KEANE J:   If it was not clear that the person was not available permanently, one would expect there would be an adjournment of the trial.

MR HINTON:   All those powers to prevent an unfair trial, yes, yes.

KEANE J:   What would be the situation, though, if it was clear that that witness had died?

MR HINTON:   I can tell you ‑ ‑ ‑

KEANE J:   Without giving a statement that might be ‑ ‑ ‑

MR HINTON:   I can tell you what the situation is in the context of this case.  It is you do not turn around and exclude the evidence from the eyewitness.  The eyewitness’ evidence does not suddenly become unfair because the contradicting witness is no longer available.

GAGELER J:   But the eyewitness’ evidence does not have presumptive statutory weight.

MR HINTON:   True, but without the eyewitness, without the only other witness, you have nothing to put to them except was it dark, was it not, how far away were you, not, and so on.  It makes it far more difficult.

KIEFEL J:   Here, on your case, section 47K(1a) in one sense admits of the problem because it narrows the method by which the presumption can be rebutted.  It admits of and allows for arguably little exercise of discretion.  Is that the territory we are in with your argument?

MR HINTON:   Yes.

KIEFEL J:   Do any of the cases discuss the intersection between the common law discretion and statutory context?  Where a statute has narrowed, in any event, the means by which evidence may be given, and in that sense has admitted of the difficulties that might arise and left it unaddressed.

MR HINTON:   I am not aware of any of this Court, but in my own State this judgment, Hall is another example, and there are a series of others where the discretion – single judge primarily, but Hall and this case is where the impact of the statutory regime on the ability to run a defence of exaggeration is considered.

KIEFEL J:   To what extent does – you have accepted that there is the common law residual discretion ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

KIEFEL J:   ‑ ‑ ‑ but is the question here the extent to which it can operate given the statutory scheme?

MR HINTON:   Absolutely.  My opening ‑ ‑ ‑

KIEFEL J:   But is it then a question more of statutory construction rather than how cases have dealt with the common law discretion in other circumstances?

MR HINTON:   There is no doubt that one has to look at the statute, construe it and consider what room it leaves for unfairness, yes, your Honour.

KIEFEL J:   Well, to what extent do all of these other cases assist us?

MR HINTON:   The cases – well, starting with Dietrich, they assist you in showing there must be a power and then it is a question of what is the content of the power.

KIEFEL J:   Well, and they show how it is exercised in different ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

KIEFEL J:   ‑ ‑ ‑ circumstances.  You have identified a number of classes of cases.

MR HINTON:   And the criteria ‑ ‑ ‑

KIEFEL J:   How do they help here?  I am struggling to understand what we draw from the cases you have taken us to which assist in the answer to the question which arises here.

MR HINTON:   What I have been endeavouring to do is to try and look at what the content of this discretion could be in the context of section 47K(1) and (1a), and the cases, if you accept that the ‑ ‑ ‑

KIEFEL J:   But you are trying to determine content.  Is it not that you are doing it around the wrong way in a sense?  We are looking at content and then seeing how it could be shoehorned into the statute.  Should not we be looking at the statute to see what room ‑ ‑ ‑

MR HINTON:   I see, yes.

KIEFEL J:   ‑ ‑ ‑ there is for ‑ and that is your content.  Your content is what the statute leaves.

MR HINTON:   Which takes us to Justice Keane’s point ‑ ‑ ‑

KIEFEL J:   Yes.

MR HINTON:   The statute contemplates that this would occur, therefore ‑ ‑ ‑

KEANE J:   In a sense, your reference to the cases is a sort of a negativing exercise that you take us to all these cases and say well, look, none of these are this sort of case.  In none of these are they talking about a discretion to do what the majority of the Full Court did in this case.

MR HINTON:   Exactly.

FRENCH CJ:   You are saying also, are you not ‑ this is really following up I suppose from Justice Kiefel ‑ that the complaint about unfairness in this case is really a complaint about the statute?

MR HINTON:   Absolutely, because much of my learned friend’s submissions complain about, well, just how the statute unfolds in these sorts of circumstances and your Honour Justice Kiefel is quite right.  If there is a matter of statutory construction, that is what is contemplated, and the conviction can be based upon that, well what room for unfairness. We then look to other things and we negative them, as your Honour Justice Keane has said, yes.

KEANE J:   So it boils down to, does the discretion front the statute.

MR HINTON:   Well, yes, or what area is there for the discretion, minded of the area that the statute operates in; yes.  The discretion ‑ I have to be careful here ‑ ‑ ‑

KEANE J:   Well, in a sense, the answer is obvious.  The discretion cannot trump the statute ‑ ‑ ‑

MR HINTON:   Yes.

KEANE J:   ‑ ‑ ‑ because it has been accepted for a long time that statutes can reverse onuses.

MR HINTON:   And, indeed, prescribe rules that you must comply with to run a defence ‑ Williamson v Ah On and Rodway ‑ yes, your Honour.  That is the reason for taking your Honours to those two cases.  I want to deal quickly, your Honours have the thrust of my argument, but I want to deal just with the question of unfairness in this case and the…..unfairness.  As we have been through, it arises from the denatured samples.  Now, that ‑ ‑ ‑

FRENCH CJ:   Sorry, just before ‑ ‑ ‑

MR HINTON:   Yes, your Honour.

FRENCH CJ:   I suppose the other side of that coin, and this is really perhaps a matter that Ms Shaw will need to address, but is the fragility of the statutory opportunity to rebut the presumption, where there is no obligation on a medical practitioner to agree to take the sample or to do it in a timely fashion, or whether, in a hospital you have to wait and two hours goes and you have really lost ‑ ‑ ‑

MR HINTON:   That was the circumstances of Hall.  He did everything he could.  He had to wait so long.  Suddenly, he had no alcohol in his blood at all.  With respect to that, in anticipation, fragility – again, you must ask where is the unfairness in admitting this evidence?  It may well be something relevant to an application for a stay, but we are talking about the exclusion of evidence and a discretion that applies well beyond this case.

The unfairness here, the denatured samples has meant they could not be analysed.  We accept that.  That, in turn, has meant that the respondent has lost – and it is important – the possibility of adducing evidence of blood analysis that would support an opinion that the breath analysis reading is exaggerated.  It is only a possibility because, of course, the blood sample may well have been entirely consistent with the breath analysis; in fact, it might have shown that it understated the relevant blood alcohol level.  He has lost the possibility of demonstrating that the breath analysis is exaggerated, but in actual fact, it might not be; we will never know.

In the interests of expediency, I can deal with this point quickly.  Your Honour Justice Nettle in a judgment in El Bayeh v The Queen [2011] 31 VR 305 deals with a case where the containers in which drugs were found by police, and the drugs themselves, were destroyed by police post‑arrest/pre‑trial. The consequence was that the drugs could not be tested to determine their volume or composition by the defence. Of course, the prosecution had the benefit of its forensic experts.

In that case, your Honour also referred to this Court’s judgment in Edwards, the South Australian Supreme Court’s judgment in Sherlock – approved implicitly in Edwards where it is referred to in a footnote – and another Victorian case of Police v Wells.  In Edwards, your Honours may recall, it was the prosecution of the Qantas pilots who were taking off from an airport in Tasmania - the allegation was without the lights on the runway being lit and the monitor list, it was called, and the flight data recorder were no longer available.  In El Bayeh, it was the destruction of the drugs and the containers in which they were found; in Sherlock, it was the CCTV footage that was unavailable, and your Honour refers also to Wells, which is the destruction of a vehicle that had been involved in an accident.

In each of those cases – they are stay cases – the defence lost the opportunity to analyse the destroyed or non‑existent evidence to see whether it might or might not assist their defence.  “Might” or “might not” was given the label of “presumptive prejudice” in Victoria, and I am happy to adopt it.  Presumptive prejudice was insufficient in each of those cases to support a stay.  If, in each of those cases, presumptive prejudice does not support a stay, in this case there can be no unfairness.  I turn to the Full Court’s judgment.  Can I take your Honours to the reasons of Justice Gray, appeal book 109, paragraph 86 ‑ ‑ ‑

FRENCH CJ:   I was just thinking, there was a certain catch 22 about that last argument, you have lost the blood sample so you have not got the opportunity to prove whether it would have been good for you or not, therefore unfairness does not ‑ ‑ ‑

MR HINTON:   Well, it is presumptive.  I take your Honour’s point.

NETTLE J:   It is the High Court’s point in Edwards.

MR HINTON:   Where do we go?  Does that mean destroyed evidence we do not prosecute might not?  We need more is really what this Court said, and so if we are pushed to the Jago position, then again, as I have said, that is a totally different inquiry and there may well be more, but, as it is put at the moment, cannot possibly amount to unfairness, bearing in mind the decision in Edwards and the other three cases that your Honour referred to and El Bayeh.  Justice Gray, page 109, paragraph 86, your Honours will recall that I referred to Justice Gray being influenced by the decision in French v Scarman. 

At 86, his Honour more or less applies the reasoning of French v Scarman to this case.  If we turn back in the judgment you will see at paragraph 74 the discussion of French v Scarman.  Your Honours will recall that at that time, as I said, the police had a duty to facilitate the taking of a blood sample which they did not discharge.

KIEFEL J:   Had his Honour applied French v Scarman in his dissenting judgment in Hall?

MR HINTON:   Yes.

NETTLE J:   Was he reminded of Hall in the course of debate in this case?

MR HINTON:   Absolutely.  Our whole case was, here is Hall, we win, if I can put it that bluntly. 

KIEFEL J:   You must have felt confident at that point.

MR HINTON:   Well, I had five judges.  You would have thought, your Honour, yes.

GAGELER J:   Was French v Scarman correctly decided, in your submission?

MR HINTON:   Yes, because French v Scarman would fall under the public policy discretion.  It could fall under both because of the obligation, bearing in mind what falls from this Court, if we give the content to the general unfairness discretion as including the trammelling of rights and privileges.  What Chief Justice King decided in French v Scarman was that that obligation was so closely connected with the taking of the blood sample that the connection was sufficient to give rise to the public policy discretion, and in French v Scarman in no uncertain terms, despite what Justice Sulan says in this case, Chief Justice King relies upon R v Ireland and Bunning v Cross and the various discretional factors that are to be taken into account ‑ ‑ ‑

BELL J:   And his Honour was satisfied of the sufficiency of the connection and on that basis French v Scarman has been, I think, accepted as correctly decided in Hall and in Lobban, is that right?

MR HINTON:   Yes, your Honour.  I would accept that if the same obligation was shouldered by the police today then having regard to the confessional cases about obtaining a forensic advantage by virtue of not discharging your duty would give rise to the unfairness discretion but it does not and that ‑ ‑ ‑

GAGELER J:   I am sorry, Mr Solicitor.  Regulation 11 sets out a number of steps, quite a number of steps that have to be complied with.  Here, the problem occurred at about the first step really and that was a step that had to be taken by a medical practitioner, but there are later steps which involve – which are cast in terms of a police officer must deliver and then a body called Forensic Science SA must do something.  Now, if the problem occurred at those later steps, would your answer be the same, well that is just too bad for the accused, if the police officer did not do what the police officer must do under (ja) or Forensic Science SA did not do what it must do under (l)?

MR HINTON:   The difference is – my answer would not be the same and the difference is because it is the State now and the State gets a forensic advantage by virtue of the error.

GAGELER J:   I see.

MR HINTON:   That is one argument that is put against us.  The argument is that the medical practitioner is an agent of the State and we just reject that submission out of hand.  You choose the medical practitioner.  You choose where you go.  There is no duty on the medical practitioner at all.  They are not an agent of the State.

GAGELER J:   Except that it does say “duty of the medical practitioner” but you do not read it as a duty?

MR HINTON:   I do not know, your Honour, for the reasons Chief Justice Kourakis gave, and I definitely do not subscribe to the proposition put that that medical practitioner is an agent of the State, and that that way you can bring in the French v Scarman sort of reasoning, the public policy discretion.

GAGELER J:   So it is not enough that the medical practitioner is discharging a statutory function?

MR HINTON:   No, your Honour.  At paragraph 74 you see Justice Gray embrace French v Scarman.  At 78, again continuing with the notion of the safeguard, and 79:

From the defendant’s point of view, he was placed in the same position as if a police officer had not informed him of his rights –

In our submission, French v Scarman is distinguishable and his Honour Justice Gray has erred.  With respect to there being a right or a duty on the authorities that has resulted in them obtaining a forensic advantage, with respect to the question of a “perceptible risk by virtue of unreliability” that question is not considered by Justice Gray and we have covered that ground in dealing with section 47K.

I turn quickly to Justice Sulan and, in particular, start at paragraph 162.  There his Honour refers with approval of Justice Gray’s judgment.  This is the minority judgment in Hall that he is discussing.  The statutory scheme provided a right to test.  We, as I have already submitted, dispute that.  At 167, the “failure” of his right, again, we dispute that. 

At 166, my submission is described as “circular”.  I dispute that.  My point was not that it is reliable.  My point, as I have laid it – and your Honours might now appreciate why I have laboured it here for fear of the same accusation, my point was section 47K gives it a value.  So there ends then the legislative scheme ignored and no identification of any perceptible risk, if I can put it that way?

It is not unfair, in my submission, in the relevant sense to admit the evidence of the breath analysis here.  Nothing in the statutory scheme indicates that Parliament intended to condition admissibility of the result of breath analysis, picking up on what your Honour Justice Kiefel and Justice Keane said, it is not conditioned on a person whose breath is analysed actually having a sample of blood analysed, such that there is a possibility of successfully challenging that breath analysis.  So, to treat this case – to treat the admission of the evidence of breath analysis as giving rise to unfairness would be to create a condition upon admissibility that would be inconsistent with the statutory scheme.

Lastly, if your Honours please, we embrace what fell from Chief Justice Kourakis at appeal book 97, paragraphs 51 through to 54, in particular, paragraphs 52 and 53 as demonstrating what would occur were this evidence to be excluded.  We note, as your Honours have put to us, that in a general sense it can be said that there is a degree of unfortunate – an unfortunate outcome here.  We accept that it is possible, but no more than possible, that if a sample of blood had been taken, that the result might have supported a defence of exaggeration.  But, in our submission, the next step

to conclude that the evidence of breath analysis is unfair in the relevant sense – that sense being it would give rise to an unfair trial if it were admitted, in our submission, is not a step that should be taken.  If the Court pleases, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  Yes, Ms Shaw.

MS SHAW:   If the Court pleases, we propose to proceed first of all by identifying the essential steps necessary to make out the availability of a discretion to exclude the evidence of the breath analysis in the present case and, secondly, indicating why it is submitted that the appellant has not made out a case for appellant intervention in the exercise of that discretion and, thirdly, addressing what we discern as the essential propositions upon which the dissenting member of the Full Court, his Honour the Chief Justice, relied and explaining why, in our respectful submission, that his Honour erred.

It is plain that it is common ground between the parties that there is a residual discretion to exclude lawfully obtained non‑confessional evidence on the basis that its admission would operate unfairly against the respondent in the context of the trial and that that discretion is either distinct from or at least not limited to a discretion to exclude evidence which itself is more prejudicial than probative.

We submit it is not unsurprising that clear examples of the application of the discretion are limited in the field of real evidence because, as has often been observed, while it may be of limited probative weight and might give rise to competing inferences, the degree of reliability of that evidence does not ordinarily affect the fairness of the trial because the trier of fact is able to assess the weight to be given to the evidence and the defendant will be able to make submissions about reliability, lack of reliability, in the context of the burden of proof.  In other words, there is no reason to think that any difficulties that the trier of fact may have in ascribing appropriate weight to the evidence would favour one party or the other.

In our respectful submission, similar considerations apply in relation to the loss or destruction of evidence ordinarily which a defendant may wish to have accessed, but would not necessarily amount to unfairness in the conduct of the trial because again the defendant can make submissions about it and the court can weigh that evidence in the context of the Crown case and the context of the unavailability of evidence. 

That of course was the approach of this Court in R v Edwards (2009) 255 ALR 399 at paragraph [31] that it was accepted that trials can and most often proceed without all the relevant evidence which may at one time have been available and, as noted by the Court, where the record is lost, it is likely to be important objective evidence of the fact in issue, then that may affect the prosecution’s capacity to prove its case.

Even so, while this Court in Edwards left open the possibility that mere loss of evidence could be sufficient to render the continuation of proceedings an abuse of process – at paragraph [33] – in a criminal case, it was emphasised that any prejudice could ordinarily be addressed by direction.

Likewise in Rozenes v Beljajev [1995] 1 VR 533 the point was made by the Victorian Court of Appeal that it is difficult to see how it can said that a trial is unfair by reason of unreliability of evidence which is probative where the circumstances which make the evidence unreliable are exposed for the consideration of the jury. Nevertheless, as the court in Rozenes v Beljajev observed at page 557, where the maker of a statement cannot be cross‑examined, that may be a circumstance where, depending on the circumstances, the court may decide to exclude the evidence of the statement.

The difference, in our respectful submission, between the question of unfairness in a case such as Rozenes as compared to this case, is that the defendant retains the ability to either test the evidence or the court, more importantly, retains the ability to weigh the evidence for itself, just as, for example, as we set out in footnote 18 of our written submissions referring to K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 the Court pointed out that the judge acting on the criminal intelligence to which the affected party has not been given access may choose not to place much weight on it.

But, here, absent the capacity of a defendant to adduce evidence of the blood test, the effect of the prosecution electing to prosecute under section 47K is that there is no other evidence that can be led in rebuttal of the presumption that arises by reason of section 47K(1) – the inability of the defendant to lead evidence of rebuttal of the presumption under section 47K(1a).  Then the initial presumption that arises by 47K(1) – under 47K(1ab) then becomes irrebuttable – in other words, irrebuttable as to the blood alcohol concentration at the time of driving.

Section 47K(1ab) specifically refers to the conduct in question.  The conduct in question is that which is alleged in the complaint.  The conduct in the complaint is driving on a particular road at a particular time.  So what the combination of 47K(1) then the ability – or the only opportunity to rebut the presumption of 47K(1) – once that is denied to the defendant by whatever reason the defendant then has no ability to challenge the operation of presumption and, more importantly, the court must act on the presumption so that it is irrebuttable to proof of the offence, that is, driving with a prescribed concentration of alcohol at the time of the driving alleged in the complaint.

KIEFEL J:   But the circumstance here is, in a sense, within the contemplation of the statute, is it not, because any failure to comply with the requirements of 47K(1a) in relation to the sample of blood will lead to the result that the presumption becomes irrebuttable.  It would follow that the statute, nevertheless, intends that to be the case.

MS SHAW:   If that was reflected in the history of the statute, that is, the commencement of the statute in the discussion in 1979 with French v Scarman and the subsequent amendments and in a global view of the legislation, I would agree with your Honour.  But, in our respectful submission, the history of this legislation, as it is clearly identified in French v Scarman, which the legislature had access to when it made subsequent amendments, was on the basis that this legislation dealing with drink driving represented a draconian interference with citizen’s rights in that a person could be stopped, initially on the basis of having committed an offence, latterly, without having committed any offence, be required to provide a sample of their breath, that this was a draconian intrusion into their civil liberties.

So, Parliament provided a safeguard.  It is that safeguard that is referred to in French v Scarman.  It is that safeguard that continued to be referred to by the Parliament, right up to and including the 1993 amendments that led to the shifting of responsibility to access the practitioner, from the police facilitating that access or the driver, or defendant facilitating that access.

The explanation as to why it shifted to the defendant was not because there was going to be any undermining or interference with a statutory right or safeguard that had been originally entered.  It was, as Hansard said, for fiscal reasons.  It was costing the police $130,000 a year to accompany these people and the replacement, once that shifted, was the insertion in the Act of subsections (2) and (2a). 

Now, subsections (2) and (2a) are very important because section 47K(1) refers to the operation of the presumption as being subject to compliance with the procedures in the Act itself, including subsections (2) and (2a).  Subsections (2) and (2a), rather than the police having to facilitate the defendant going to the hospital, must tell the defendant, firstly, of his right to a blood test and, secondly, that if he invokes that right they must give him a blood test kit and they must give him the instructions that my learned friend has adverted to, that are set out in the schedule and that kit is a prescribed kit provided to enable a defendant to take it to a doctor who then must comply with regulation 11, including regulation 7(c) and the subsection (e) in relation ‑ ‑ ‑

FRENCH CJ:   The presumption is not conditioned, either expressly or by implication, upon compliance with the procedures under the regulations leading to a blood sample that can be tested and ‑ ‑ ‑

MS SHAW:   Well, except that the blood, regulation 11, is clearly linked to (2), (2a).

FRENCH CJ:   Yes, but you are not arguing that the presumption is legally unavailable because of that non‑compliance.

MS SHAW:   No.

FRENCH CJ:   You are arguing a discretion.

MS SHAW:   We are arguing a discretion but we rely on that link to trigger the discretion that is Parliament’s intention by including in the statutory scheme itself the obligation to give the driver his rights to a blood test and to give him the means of doing it and telling him he must do it in this way if he wants to access that right then leaves it up to the driver whether he continues to invoke the right that he has already invoked.

In other words, as his Honour Justice Gray observed, if a driver is pulled over as this driver was, it is the driver who gets his reading and says, “I do not believe it” or “I am surprised by that” is the one who is going to choose to exercise this right, that Parliament consistently, with its position in French v Scarman, keeps there as a safeguard or a safety net. 

In the Hansard that is included in the legislation, your Honours will see that – and I do not need to take the Court to it – at tab 5 they talk about this being a matter that was costing $130,000, and then in the last paragraph of the debate, the safety net will remain.  Your Honours, the other clear indicator, in our submission ‑ ‑ ‑

KIEFEL J:   The way you are reading “the safety net”, is it not, is to read (1a) as giving a right which must be availed of to a positive outcome for the person and, in that way, you are conditioning subsection (1).

MS SHAW:   Not at all, your Honour, with respect.  What we submit is this, that a driver may receive the kit and might decide to go home and not do anything about it, or a driver, as in Hall, might go to a public hospital, sit there for eight hours, or a number of hours, by the time of which his level of concentration has altered to such a degree that the result is irrelevant and, therefore, the fairness discretion or the activation of his right, as the Full Court said in Hall, he had not exercised his right effectively or promptly.  He could have gone to another hospital – that is paragraph 97 of Justice Bleby’s judgment – and because he therefore had not effectively invoked his right, the discretion did not arise.

But where a defendant invokes the right, takes his kit – here, the police took him to the hospital immediately – and seeks to effectively activate that safeguard, and there is non‑compliance with the functionary that the State has delegated this task to, purely because obviously a policeman cannot take a sample, and prescribed the circumstances in which the doctor must prepare that sample, deliver that sample and most importantly fill out a certificate set out in the regulations confirming that she has fulfilled the requirements that accompany that blood kit.  So there is a direct link between the safeguard that was contemplated by Parliament in 1979 that remains in the Act, evident from (2) and (2a), and then the medical kit that is taken to the doctor is then the subject of certification by her that she has complied with what she is expected to under the regulations, and she did in this case.

KEANE J:   Is your submission that the medical practitioner is the agent of the prosecution?

MS SHAW:   No, with respect.  We are saying that she is a person who is performing a function under the legislation.  She is providing a sample for the State, or for the forensic science centre.  She is providing a sample for the defendant.  She is performing a role as part of a regime that is intended to afford the defendant this statutory right to rebut a presumption.

KEANE J:   Performing a statutory function neither for one side, nor the other?

MS SHAW:   That is so, or for both, perhaps more accurately, because Parliament has given the defendant this one avenue to rebut a mere presumption that will become irrebuttable unless he is able to access this single safeguard.  The extent to which the unfairness discretion will then firstly be triggered can often be affected by things, as in Hall, where the court found as a fact that he did not effectively go promptly to another practitioner.  He could have accessed another hospital; therefore he did not get to the point of regulation 11.  Regulation 11, of course, was not in issue, but here this defendant has got to that point.  He has done everything he can and he has failed to achieve the only avenue open to him to rebut the evidence because of non‑compliance with a regulation that Parliament included as part of an old rule scheme.

KIEFEL J:   But the legislation has provided by these measures a path that a person can pursue with a view to obtaining evidence to rebut the presumption.

MS SHAW:   Yes.

KIEFEL J:   But are you not arguing that Parliament has given more?  Parliament has given or has intended that each person who pursues that path will have an outcome in terms of evidence, regardless of what the evidence is, but that there will be an outcome, that there will be no mistakes and that there will be an outcome in terms of evidence.

MS SHAW:   Your Honour, we, with respect, say there is a good example that that is precisely what Parliament did not intend and acknowledged the potential for failure, and that is to be found if your Honours go to 47K(8).  Your Honours will see in 47K(8) the legislature contemplates, effectively, that prosecutions might fail because of a non‑compliance with aspects of this statutory scheme, and I include in that the regulations, where the subsection reads:

A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved –

(a)that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant’s blood; and

(b)by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person’s blood must be taken and dealt with for the purposes of subsection (1a).

In other words, this is a provision which recognises that section 47K(1) is a presumption and that things can go wrong, one of which is the kit itself, and if that happens the prosecution will fail if the defendant is able to satisfy subsections (a) and (b).

KIEFEL J:   But what do you make of subsection (8)?  On one view of it, it confirms the primacy of the presumption, but do you say that because it makes one provision for a failure in the process that – what, that any other failure is not to have the effect of denying a prosecution?  I am not quite sure what you are making of it.

MS SHAW:   What I am making of it is that Parliament has left open the potential for the unfairness discretion to operate in that case in terms of determining whether or not the driver or defendant has been deprived of the right to a fair trial.

BELL J:   Is not subsection (8) dealing with a particular circumstance in which the kit, which it is the responsibility of the law enforcement agency to supply, is deficient and it is for whatever reason deficient, not to do with any interference by the defendant?  In that circumstance, the subsection contemplates that the prosecution might fail.  There the prosecution might fail because of conduct on the part of those responsible for bringing the prosecution, namely, a deficient kit – the supply of a deficient kit.

MS SHAW:   Your Honour, in our respectful submission, that does not explain or fit with what we have submitted is the history, the global history of this legislation and the ongoing attempt by Parliament to ensure there is a safeguard and, at the same time, as has been alluded to by the appellant to come up with speedy resolutions of these matters by way of presumptions and certificates. 

FRENCH CJ:   Is subsection (8) perhaps dealing with a particular case which could be said to be a failure to comply with subsection (2a) upon which the presumption is conditioned in saying that that particular class of failure does not defeat the presumption unless.

MS SHAW:   We say, in our respectful submission, it leaves open the discretion to ‑ ‑ ‑

FRENCH CJ:   You can challenge the applicability of presumption on the basis that subsections (2) and (2a) have not been complied with.  That takes you back to subsection (1), does it not?  Subsection (2a) relates to delivery of the approved blood test kit and then it might be said well if you have given someone a deficient blood test kit you have not complied with that requirement and, therefore, there has been a non‑compliance with (2a), therefore, the presumption is not engaged.  That may be a contestable interpretation but it seemed to me that subsection might be directed to that sort of argument.  If you are going to run an argument about deficiency of the kit and constituting a non‑compliance with (2a) this is what you have got to show.

MS SHAW:   Except that it does not, in our respectful submission, condition the operation of the presumption.  All it does is say that we will be able to rely on the presumption unless you discharge these onuses.  So, it is not a case where – what we are submitting is it is pointing out that the legislature is not intending if things go wrong the defendant, that is, in terms of affording him his blood test rights in (2) and (2a) that necessarily they contemplate conviction.  No safeguard, no safety net.

The very purpose of (2), (2a) and, indeed, (8) and the regulations and the requirement for the practitioner to certify and to provide samples to the forensic science, for the police to be involved in that, is part of a global scheme that has shifted the one aspect, namely the defendant engaging the practitioner and not having the police take him there, to the defendant to save costs. 

In other words, in our respectful submission, the purpose of this legislation is not to convict people of these offences if for reasons outside of the defendant’s control and after and in the course of invoking his right to a blood test there is non‑compliance with the regulation that precludes him from having the ability to rebut the presumption. 

In the context of a fair trial, that is the way in which the test – the fair trial test occurs is effectively – this, in our respectful submission, is in the category of case which her Honour Justice Gaudron in Dietrich v The Queen identified as an example of when the fairness discretion to exclude - the risk of an unfair trial, I am sorry, might arise - Dietrich v The Queen (1992) 177 CLR 292.

NETTLE J:   That was a stay case, not admissibility of evidence.

MS SHAW:   I accept that, your Honour, but we are relying on it in terms of the test of an unfair trial.

NETTLE J:   But is not the test not whether it is an unfair trial, but whether the admission of this evidence would render the trial unfair?

MS SHAW:   Yes, your Honour is correct.  I apologise.

NETTLE J:   Then, with all respect to what was said in Dietrich, which is no doubt correct, how does it really bear on the question?

MS SHAW:   Because what we are submitting, your Honours, is that the effect of the non‑compliance with the regulation that denied the respondent his only right to challenge the breath analysis evidence, which triggered – the admission of the breath analysis evidence triggered the operation of the presumption - once that non‑compliance led to him not being able to access that ability to challenge, he was in a position where the weight and credibility of the prosecution evidence could not be effectively tested.

NETTLE J:   If that is correct, is not the Solicitor‑General right when he says that what you are really seeking is to render the trial unfair and thus that it should be stayed, or something else be done, because despite the admissibility of the evidence and that it is not unfair in itself, the loss of other evidence deprives you of the ability to have a fair trial?

MS SHAW:   There are three points I could make to that, your Honour.  The first is it has never been a ground of appeal that the relief granted was erroneous; secondly, that, critically here, the effect of admitting the breathalyser evidence was to trigger the presumption; and, thirdly, we submit that discretionary exclusion of certain evidence is a way in which a court can exercise its power to ensure a fair trial. 

In other words, we submit here that because, firstly, the accused did invoke, the procedures failed him in an area where it was the responsibility of somebody else, therefore, the prosecution elected to choose to rely on section 47K being on notice, as your Honours will see, the certificates from the forensic science centre as well as that of the accused was tendered as part – the case was accepted that both samples denatured; the reports of the expert had been provided to the Crown in advance. 

This was a trial that ran through to its conclusion with the defendant giving evidence, with the expert giving evidence about finding non‑compliance and then the issue was if he admitted the evidence, bearing in mind this non‑compliance, he would be obliged by reason of 47K(1) and the inability to rebut under (1a) to apply (1ab) that it was irrebuttable presumption from the breath test to the blood alcohol to the blood alcohol as at the time of driving.  That is a discretionary decision.

NETTLE J:   But the difficulty is it is not the admissibility of the certificate which creates the problem, it is the loss of evidence which might have gone to rebut its effect.  We are talking about the admissibility of this evidence, not whether by reason of the loss of other evidence you may not have got a fair trial.

MS SHAW:   The unfairness is that by reason of his inability to challenge the evidence and the combination of the Crown choosing to rely on the presumption, there was nothing left for the magistrate to decide.  It became an irrebuttable fact. 

KIEFEL J:   But that is to point to the presumption as the unfairness.

MS SHAW:   No, with respect, it is not.  It is to point to the fact that the breath analysis could not be challenged in relation to its reading as a first point, and if that step could not be addressed then the substantive law, which we do not suggest is unfair, has that consequence.  So the area in which Parliament allowed this defendant to challenge was the breath analysis by reason of blood, and the option for the Crown or the police so that these cases would not necessarily fail – that is, there is a total failure – was to choose knowing that both samples were denatured here.  Not like in some cases where the forensic science sample, for example, has not denatured or the defendant’s sample has not denatured, in this case both samples have denatured and it is no doubt it was because – a finding of fact, non‑compliance with a regulation by the medical practitioner.

In those circumstances, that is what triggered, in our respectful submission, the exercise of the discretion.  How one judge might exercise it, how another judge might exercise it will depend on other factors that might be weighed into the equation.  One of them might be, as in Hall, which was effectively a finding of fact, he did not go promptly to the doctor and, therefore, the test result, because there was evidence from an expert saying that by the time the test result was checked, effectively, it was at zero.  The failure, therefore, to act promptly had denied the Court the ability to assess whether or not that result was of any use anyway.  So, there is no comparison with Hall because Hall failed because of the finding by the Court that he did not effectively exercise his right to go promptly.

BELL J:   He went promptly.  It was that the hospital was triaging patients and considered other patients’ cases were a priority.

MS SHAW:   Yes, your Honour is correct.

BELL J:   It is not suggested, is it, that Mr Hall necessarily knew the significance of the passing of time in terms of the loss of potential for evidentiary significance.  Mr Hall was complying.  He turned up promptly at the hospital with his blood kit.  In that sense, it is rather difficult to see Mr Hall was relevantly at fault.  It just happened that Mr Hall did not have the opportunity to challenge the evidence just as this respondent does not have the opportunity to challenge the evidence.

MS SHAW:   Your Honours, if your Honour’s synopsis of the facts was the finding, there might be a proper comparison, but the finding alluded to earlier by his Honour Justice Bleby in Hall, if your Honours go to Policev Hall (2006) 95 SASR 482, in particular at page 499, and about halfway through that paragraph:

The prescribed blood test kit was supplied and the prescribed written notice was given.  What prevented the obtaining of a useful blood sample was the delay that the respondent encountered in his choice of facility in which to have the sample of blood taken.  He was not required to have it taken at the Royal Adelaide Hospital.  There was no evidence as to the availability of alternative facilities, but the legislation assumes, and one could take judicial notice of the fact, that in the Adelaide metropolitan area there are a number of public and private 24‑hour outpatient hospital facilities and many 24‑hour medical clinics where a sample of blood could be taken in accordance with the requirements of the Act and Regulations.

BELL J:   Was it the case that Mr Hall went with the kit, on the evidence, to the hospital promptly?

MS SHAW:   Yes, well, as I understand it, relatively promptly, but effectively the court found that to trigger the discretion, rightly or wrongly, he needed to have done everything he could and here – he did not act promptly.  He might have acted promptly to go to the hospital, but the court took the view there was more he could have done.

KEANE J:   Well, if one looks at paragraph 8 in the judgment of the Chief Justice, it is pretty clear that the finding of fact by the magistrate on which the court acted was that:

By implication the magistrate found that Mr Hall was not at fault in relation to the time that elapsed.

MS SHAW:   Yes, but the ‑ ‑ ‑

KEANE J:   So it looks as if the court proceeded on the footing that Mr Hall was not at fault in relation to the lapse of time that occurred.

MS SHAW:   Your Honour, in terms of the approach of the Full Court, though, it is plain that what his Honour was there considering in relation to the exercise of the discretion was this topic that has been alluded to earlier, namely, the degree of control that the defendant has over the process and, therefore, to what extent will that trigger a discretion if something goes wrong in or outside of his – that is either as a result of his conduct or the matters that were outside of his control. 

His Honour Justice Bleby does address that in his reasons at page 504 of the judgment, because what his Honour says is that at paragraph 119, his Honour noted the change in relation to rebutting the presumption under the legislation as it was at the time of Hall, in the middle of the paragraph:

The police are no longer required to facilitate the obtaining of the blood sample.  It is left to the person requesting the blood test kit to make his or her own arrangements.  Responsibility for doing so has moved to the defendant.  The defendant has more control over the process.  He or she must take greater responsibility to discharge the evidential onus.  As the responsibility shifts, the opportunities for the exercise of the discretion will diminish.  The discretion is less likely to be exercised in relation to activities undertaken and choices exercised by the defendant.

The present legislative scheme contemplates that there may be all sorts of reasons why a suitable sample of blood may not be able to be obtained.

This was related to events that could occur between the giving of the kit and presenting at the doctor, and the reasons have nothing to do with law enforcement officers.  His Honour says:

They may also have nothing to do with reliability of the evidence justifying the conviction.  Where the defendant has greater control over the process which has failed for some reason, the less likely it is that the defendant will be able to engage the unfairness discretion to exclude proof of the offence.

Your Honours, his Honour in fact at paragraph 118 at page 503 discussed the issue if someone else had not complied with statutory procedures and in the second to last sentence said:

However, failure by someone else not acting under police supervision to comply with the statutory procedures will not necessarily justify reliance on the general unfairness discretion to exclude evidence of the breath analysis.  That is not to say that failure by someone else to comply with the statutory requirements will not amount to unfairness in the relevant sense –

referring to Lobban’s Case.  So, in our respectful submission, Police v Hall is not on all fours with this case and highlights the fact that the question of whether the discretion is triggered depends on the circumstances of the case.

BELL J:   But when one looks at the contention that the relevant unfairness arising from the admission of the evidence is the inability to test the results of breath analysis, one comes down to a distinction.  In Mr Hall’s case, he goes to the hospital with the sample, following the advice to do so promptly, but hospital staff attending to other matters do not get to him in time so he loses the opportunity - no unfairness in the trial, but where the doctor attends to this applicant promptly and makes a mistake there is relevant unfairness in the trial.

MS SHAW:   Your Honour, in our respectful submission ‑ ‑ ‑

BELL J:   It is not to do with the capacity to test evidence.  It is to do with the taking of all steps conceivable by the defendant to give effect to this right, as you characterise it.  Is that a fair way of saying it?

MS SHAW:   In our respectful submission, our submission is that the result of what occurred is that the defendant lost the only avenue to challenge.

BELL J:   Like Mr Hall.  The difference is that Mr Hall is open to the criticism that he should have left the waiting room and driven to some other place in the hope of getting the sample taken in time.

MS SHAW:   That is so.

BELL J:   So the issue is not so much the inability to test the evidence; it is also very dependent upon the idea of the defendant taking every step that was reasonably open to him or her.  Is that right?

MS SHAW:   There is certainly a normative element to it, but we submit it is a combination of factors, potentially, in any given case.

FRENCH CJ:   But in any case in which the defendant, not through any fault of his or hers, is unable to have the blood sample taken – maybe there is an accident on the way to the hospital in which the defendant is involved and so it cannot be done within the relevant time; there could be a whole variety of events occurred.  It would seem to me, on your submission, that the unfairness discretion is enlivened with equal force in each of those cases, all of that array of cases.

MS SHAW:   It could well be, except that where it is plain that the failure to achieve the sample is the non‑compliance by somebody who has that function by the State, then that is a clear aspect, we say, of – it is a not a factor of degree here, it is plain a non‑compliance that has denied him completely the opportunity to challenge the evidence.  It is a subject of regulation - Parliament anticipated there would be compliance.

The other areas where it is effectively ‑ that between getting kit and accessing doctor, are matters that come down to questions of fact and degree because it does depend on the extent of the control that the defendant has over that part of the process, but he has no control over compliance with those sections of regulation, the placitum of regulation 11, which dictate what the medical practitioner must do, what the police officer must do and others must do.

FRENCH CJ:   Thank you, Ms Shaw.  It might be a convenient moment to adjourn.  We will adjourn until 2 o’clock.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 1.59 PM:

FRENCH CJ:   Yes, Ms Shaw.

MS SHAW:   If the Court pleases, just going to the three‑page outline, I will not stay with the first four paragraphs.  The other matters have really been addressed arguendo, except in relation to the issue of the types of unfairness.  Can I perhaps just revisit the point raised by your Honour Justice Kiefel in relation to whether or not this, in essence, boils down to statutory construction.  Our starting point in that respect is that there is a duty to ensure a fair trial and a common law discretion to activate that.  The common law discretion operates in the statutory context.  It is a discretion to ensure the trial is fair, not that the offence charged is a fair one.

Insofar as one looks at the statute, it is for the purpose of seeing whether or not that discretion somehow has been abrogated, and if it has not and one cannot point here to a specific abrogation by Parliament, we say plainly against the backdrop of the decision of French v Scarman going back to 1979 when Parliament has been alive to the way in which courts have exercised a discretion and applied it, for example, in R v Lobban as available, there is no amendment that can be pointed to as directed towards excluding the operation of the common law unfairness discretion. 

If that is right, then one cannot say that Parliament intended, notwithstanding a breach of the regulations, that a breath analysis must be received under section 47K for the purposes of triggering the presumption and given conclusive weight under 47K(1ab) in the absence of the ability to rebut.

Of course, section 47K(1) itself is in permissive terms.  It says the court may receive the breath analysis and then apply the presumption and contemplates, as has been repeatedly said, the matter being proved in other ways.  So, in our respectful submission, it cannot be gleaned from this legislation viewed globally including the regulations, we submit, that Parliament intended that if there was a breach of a regulation, or non‑compliance with a regulation, the court was duty bound to receive the evidence under section 47K(1). 

In other words, the Parliament clearly contemplated compliance with regulations, not non‑compliance, and if in the absence of any language or prescription about the consequence of non‑compliance, in our respectful submission, it is plain that the common law discretion – unfairness discretion in the context of securing a fair trial continues to operate in conjunction with the construction and operation of the statute to ensure a fair trial. 

It is our submission that you would need very clear words indeed for the Parliament to exclude the operation of the common law unfairness discretion, and it is not suggested by the appellant that that has occurred because, of course, if that did occur that might raise other issues.  So, in our respectful submission, this is not a case where the legislation can be construed as saying, effectively, that despite any breach of the regulation the court must receive and act on the evidence if the prosecution choose to proceed under section 47K(1).

FRENCH CJ:   The actual words you are relying on are “evidence may be given”.

MS SHAW:   Yes.  Your Honours, coming then to the matters we raised in our three pager, we submit that as has already been – as there referenced at paragraphs 7 and 8, that this was an exercise of discretion at first instance and the subject of an appeal.  There has been no error of fact or law demonstrated, bearing in mind the broad nature of discretion that would warrant interference in this Court.  We have already at point 9 discussed various distinctions in relation to Police v Hall. 

So, if I can then turn to the judgment of his Honour the Chief Justice and the way his Honour approached the issues in the case.  We have set out what we discern to be a number of important propositions that emerge from his judgement.  First of all, in relation to the question of whether or not the unfairness discretion can operate or arise in the absence of a procedural or substantive right, we take the Court to his Honour’s judgment in the appeal book at paragraph 26 which is at page 89 of the appeal book.

His Honour effectively limits the operation of the discretion, or holds that it does not apply unless there has been the loss of a procedural right to have the blood tested.  In our respectful submission, the preconditions for the unfairness discretion to arise, or the circumstances in which it may arise, are not dependent upon the identification of a breach of a procedural right.  We do not understand that the appellant maintains that.

FRENCH CJ:   Is his Honour doing anything more than rejecting the proposition that a procedural right – or in this case, that it was sufficient to enliven the discretion?

MS SHAW:   The way his Honour approaches it is a matter your Honour the Chief Justice referred to before.  His Honour does not draw any distinction between the motorist who, for one reason or another, does decide to have a blood test taken, and the defendant who actually is complying with his obligations to the point where the next stage of accessing that blood test is the responsibility of someone else and there is a breach.  His Honour takes the view that these particular circumstances are no different to a case where a defendant does not effectively choose to exercise his right to act on the blood kit and go to a doctor, and that is the right that he is really characterising.

In our respectful submission, that is not the issue in this case.  Certainly, that was closer to the facts of Hall, but it is not this case.  The distinction that we submit is the correct one is, it is one thing to decide whether you have got a right to have a doctor take a blood sample, or the doctor has an obligation to take your blood sample; it is another issue as to the responsibility of the doctor in that respect, if that be relevant, but more important, the issue of whether there has been non‑compliance with the regulations, if indeed you are at the stage where you have complied with the regulation and the medical practitioner does not comply.

That is not a question of – it is not to the point whether you classify it as a right or not a right.  It is the consequence of that non‑compliance that effectively gives rise to the issue of whether or not the respondent was able to achieve a fair trial.  In our respectful submission, to say that section 47K(1a) of the Road Traffic Act does not confer any such procedural right, that, in my respectful submission, is not really what was in issue in this case.

To show, your Honours, by way of example where his Honour finds that the word “must” does not suggest there is any obligation or duty imposed, which his Honour does at paragraph 34 at page 90, we simply refer by way of example, your Honours, to the Schedule 1 which is in the Act itself in the book A, in the legislation book of the appellant, where if a person is involved in an accident or for some other reason is unable to provide a breath sample there are provisions in the schedule which permit a blood sample to be obtained compulsorily. 

Your Honours will see that the language that is used in Schedule 1 – clause 2, mirrors very much the language that coincidentally is in regulation 11 and, of course, these are processes or procedures that are in place to assist the prosecution to obtain the evidence that they seek.  So we merely point to that as an example of the way in which the regulations under regulation 11 are part of an overall scheme in this Act that includes the taking of blood in different contexts and a common procedure in the way that it is dealt with for the benefit of both parties. 

Your Honours, then coming to the other aspects of the Act, we have already referred to the inclusion of subsections (2) and (2a) in 47K(1) itself, emphasising the importance of the defendant’s right to have a blood test and the recognition that it shows of the ongoing concern of Parliament with potentially draconian consequences of applying the presumption to evidence which might be fallible. 

We do not say reliable – that is, it may not be unreliable but it is a recognition by Parliament that it may be fallible in the sense of not accurately recording the blood alcohol concentration of the driver at the time of the offence – that is, from breath to blood some time later and then back to the blood alcohol at the time of the offence, accepting, as has already been alluded to, that there is an absorption phase when the blood alcohol level can be expected to be lower and, in some cases, considerably so.  There is a case of Bliss v The Queen referred to in our outline where the evidence effectively put it below the limit.

That is the premise upon which we say Parliament has included the right of a defendant to contest the operation of the presumption by accessing a blood test in the prescribed way, firstly, through the obligation on the police as I have said under subsections (2) and (2a) and, then, by the provision to him of a kit - obviously that was a kit, not his kit, but one required under the regulation to be given to him.

I do not need to take the Court through the specific terms of regulation 11 itself, but your Honours will see that the regulation in its introductory language does refer back to the following up of prescribed procedures in accordance with a sample of a person’s blood that must be taken and dealt with for the purposes of section 47K(1a) of the Act.  So this is not a scheme that is divorced in any way from the operation or intended operation of the presumption. 

In addition, the Court has already noted the “must” appearing in subsection (c) and the medical practitioner – as to what the medical practitioner must do in (a), (b), and (c), the term “duty” used in (e) which the Crown has said relates to quantity, further obligations in relation to the certificate and the certificate is set out in the schedule which is at Schedule 3 at page – again, the form of the certificate in Schedule 3 has as its heading “Section 47K(1a) and regulation 11”.

In our respectful submission, the notices that are to be given to the defendant – again demonstrating the importance to Parliament of the safeguards being conveyed to the defendant and giving him the ability to properly access this safeguard - are set out in Schedule 1 of the regulations, Part A and Part B.  Both of those schedules refer back to 47K(2a) and 47 in A and B.  Then, Schedule 2 refers back to the police must give the rights which are in (2a)(a) and then if the driver invokes that right then that must the subject of a form of request under Schedule 2.

That, in our respectful submission, demonstrates that regulation 11, and the various schedules and forms under it, are part of a global scheme and its intention is to ensure that the safeguard that has been part of this legislation from the beginning, based on the recognition of the fallibility of the breath test in this context, ought to remain and does remain.

Your Honours, then coming to the next topic that we address – and I have already referred the Court to 47K(8), so I do not need to return to that – but coming then to the next topic in our outline, which relates to the way in which, in paragraph 10.2 – in our respectful submission, we have covered that in terms of discussion of the Act and the provisions.  Then we come to our proposition in 10.3, and his Honour the Chief Justice’s approach to those cases.

In our respectful submission, it is not the case that his Honour has applied Hall in the way in which his Honour Chief Justice Doyle in that case applied the common law residual discretion.  The history of the matter, your Honours, was that in the case of Police v Jervis, which is referred to in his Honour the Chief Justice’s judgment – in particular at paragraph 51, page 97, his Honour concludes – well, not concludes, but certainly decides, in the last sentence:

The judiciary should only deny the prosecution the statutory aids enacted by Parliament in circumstances amounting to forensic unfairness in the strict sense explained by Doyle CJ in Police v Jervis –

(1998) 70 SASR 429 at 446. In Police v Jervis, his Honour determined the test of discretionary exclusion upon the basis that there needed to be a breach by the authorities or the police, or some impropriety by the police, before the discretion was enlivened.  However, then in R v Lobban, his Honour qualified his remarks – if I can take the Court briefly to R v Lobban (2000) 77 SASR 24 ‑ having regard to what his Honour Justice Martin identified after a detailed discussion of various cases from interstate and the High Court decision of Swaffield as the residual discretion to exclude evidence on the basis of unfairness.  What his Honour Chief Justice Doyle said in Lobban at paragraph 2 at page 25:

On reflection, my reasons in Police v Jervis . . . did not adequately identify the availability and scope of what Martin J has described as the general unfairness discretion –

and effectively decided that the scope for the unfairness discretion in cases such as Jervis, which was two cases where there had been in one instance a failure to give the defendant a sample, and in the other a comment by a nurse to dissuade the person from having a blood sample, his Honour said that –

The scope for the exercise . . . will be limited when the matters relied upon by the defendant do not affect the reliability of the evidence tendered by the prosecution, and involve no impropriety or misconduct by the police or law enforcement authorities more generally.  However, to the extent that my reasons in Jervis might imply that the unfairness discretion is available only in the sort of situation just identified by me, I have expressed myself more narrowly than I should.

So, his Honour, having effectively accepted the correctness of his Honour Justice Martin’s discussion of the unfairness discretion, and in particular his Honour’s comment on Jervis which appears in his Honour Justice Martin’s judgment at page 39, paragraph 58, that the court in Jervis appears to have assumed that the overall discretion is enlivened only if there exists some impropriety by a member of a law enforcement authority or it would be unfair to use the evidence having regard to some such impropriety or if a law enforcement authority has taken advantage of some disadvantage under which the accused laboured.

It was that aspect of Jervis that his Honour Chief Justice Doyle accepted that he had expressed himself too narrowly and after his Honour Justice Martin set out various authorities, including a High Court decision, for example, in Dietrich, as to the test of a trial that is not unfair, referring to Justice Gaudron’s remarks at paragraph 67, his Honour at paragraph 76 quoted from Cross on Evidence and the examples of the residual discretion that were there referred to and concluded as part of his summary at page 51, paragraph 89(vii), the ultimate test is:

on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair –

and it is not necessary, therefore, to require proof of any impropriety by the police or breach or, indeed, any aspect of the matters that his Honour Chief Justice Doyle had alluded to.  His Honour Chief Justice Doyle went on further though and in paragraph 3, back at page 25, said:

In the light of that, I should add that I remain of the view that in Police v Erwin . . . the judge wrongly treated the case as giving rise to the Bunning v Cross discretion.  In the light of the reasons of Martin J, the judge was right to conclude that the general unfairness discretion arose.  Whether, in the exercise of that discretion, it was appropriate for the magistrate to have excluded the relevant evidence is not something that it is necessary for me to consider further –

Now, Erwin’s Case was where there was no impropriety by the police.  However, the defendant had failed to receive the sample from the nurse who had taken the sample and so in that sense did not have the ability to test, or the court to evaluate the weight or challenge the blood test and the magistrate at first instance had excluded the evidence in the exercise of the discretion and her Honour Justice Nyland considered it was not appropriate to interfere with the exercise of that discretion.

But it was a case where, in essence, it was a breakdown in the procedures that were required to be accessed in order to achieve a blood test that gave rise to the exercise of the discretion to exclude.  So his Honour’s conclusion in Lobban on that aspect was that her Honour was incorrect to find that it did give rise to a Bunning v Cross discretion, but decided she was right to conclude that the general unfairness discretion arose.

When his Honour Chief Justice Doyle in Hall came to look at the circumstances of that case and whether or not in particular he should revert to Police v Jervis, or he should continue to endorse the approach of his Honour Justice Martin as to the existence of the residual discretion, the court sat five judges because the Solicitor‑General was asking the court to reconsider the decision in R v Lobban.  That appears in paragraph 2 of his Honour Chief Justice Doyle’s judgment. 

It was constituted by five judges because the Solicitor‑General, Mr Kourakis, QC appearing for the appellant, wished to submit that the court should reconsider what was said in R v Lobban about the scope of the unfairness discretion.  The Court is well aware of the facts in Hall, but the submission, in essence, by the Solicitor‑General was that French v Scarman was correctly decided and that the unlawful improper conduct of the police associated with the obtaining of evidence should continue to give rise to the Bunning v Cross discretion, but insofar as there was any application of a residual discretion its scope should be severely limited.  At paragraph 31 it is summarised at page 490:

In effect, Mr Kourakis submits that the court should extend the scope of the Bunning v Cross discretion beyond the scope that was given to it in Lobban, and should limit the scope of the unfairness discretion more closely than it was limited in Lobban.

As I will take the Court to, and I have alluded to it already, his Honour in his dissenting judgment stated the relevant principles as those in Police v Jervis – I will take the Court to the passages – referred to remarks in Hall as if they supported his position, in our respectful submission, to the contrary. His Honour the Chief Justice, first of all, at paragraph 35, page 491, said that he was:

not persuaded that the decision in Lobban should be reconsidered.

He had referred to two earlier propositions at paragraphs 23 and 24 which set out the Bunning v Cross discretion as applied in French v Scarman and the residual discretion as identified in Lobban.  Having decided to reject the suggestion that Lobban should be –or the submission that Lobban should be reconsidered, his Honour then went on to say at paragraph 41 that:

On reflection, the criticism of the reasoning in French v Scarman was unnecessary for the purpose of the decision in Lobban.  In any event, I consider that I took too strict a view of the scope of the Bunning v Cross discretion in Lobban.

FRENCH CJ:   But we are not ultimately concerned to investigate the correctness or otherwise of Chief Justice Kourakis’ views on earlier authorities ‑ ‑ ‑

MS SHAW:   No.

FRENCH CJ:   ‑ ‑ ‑ or to explore them in the South Australian context.  Really we are looking to the proposition whether there was a discretion to exclude and whether that discretion to exclude breathalyser evidence in a circumstance in which the blood sample analysis is not available to the defendant through no fault of the defendant’s and in a case involving no fault on the part of the police can stand against the statute.

It seems to me that the proposition that you are ultimately driven to – and I may be wrong about this, and this reflects something I think I said before lunch – is that the discretion for which you are contending must arise in any case, whether through a miscarriage of the medical procedures or an accident on the way to the hospital – in any case in which without the fault of the accused he is unable to avail himself of a blood sample which either has been taken or for which he has been given the kit.

MS SHAW:   As a broad proposition if that has – in the context of this, the Crown or the police invoking section 47K(1) as the methods of proof, then it has - and the effect of that is to deny the defendant the ability to challenge the blood test so that the presumption becomes irrebuttable then that does raise a question or trigger the issue of whether or not the accused ‑ ‑ ‑

FRENCH CJ:   Well, what is left to move in a discretion?  On your argument really the discretion only ever gets exercised one way in the circumstance I have posited.  It is always exclusion.

MS SHAW:   Well, with respect, we submit that in effect the example - in every case it will be a question of the level of control that you might have and the circumstances.  In the example ‑ ‑ ‑

FRENCH CJ:   I said no fault on the part of the defendant.

MS SHAW:   Yes.  Well, if the result is that there is no breath test and the finding is that he did invoke his rights and he was attempting to access the regulation, then the trigger does arise for the exercise of the discretion because the Crown would be – or the police would be on full notice that we are going to invoke this presumption when it is a choice to do so, that this particular defendant was deprived of his ability, which Parliament intended, for a safeguard through no fault of his own.

In our respectful submission, that is obviously a question for the magistrate but it does reflect on the intention of Parliament – one, that the defendant should have the safeguard and, two, the absence of any suggestion by Parliament that if he is denied that safeguard he is going to face the irrebuttable presumption of fact anyway.  In our respectful submission, that is the key that here, at the end of the day, through all of these changes, Parliament has repeatedly said in Hansard, at the time of changes, yes this is draconian legislation.

FRENCH CJ:   Yes, I understand.  You have put that point before.

MS SHAW:   Of course, in terms of the matter being proved in the ordinary way, that was the case up until the issue of these presumptions and the fact that Parliament contemplated that it could be proved within the ordinary way, questions of the potential link to the trial or any of those matters, in our respectful submission, do not bear upon the fact that this is the way in which Parliament contemplated, if we impose draconian legislation and we provide just one snippet of a safeguard that becomes denied.  As in this case, all of the evidence was led by consent.  The only issue that was in dispute – or was raised – related to the breach of the regulation and, hence, it was a very short trial.

Your Honours, if I might just be permitted to go back to his Honour the Chief Justice’s judgment because it does provide the – or that the appellant relies on it as effectively representing a correct approach to the consideration of whether or not the unfairness discretion might arise.  In our respectful submission, his Honour has misunderstood the decision in Police v Hall.  In Hall, his Honour – as I have said, Chief Justice Doyle specifically decided that he was wrong to be narrow about French v Scarman, that it did extend to police conduct that was just not responsible for the obtaining of the evidence but also, as in French v Scarman, was so connected to the obtaining of the evidence that the Bunning v Cross discretion arose.  Therefore, he had been too narrow about Bunning v Cross.  But, in addition, he rejected the Solicitor‑General’s submission that the residual discretion should be narrowed in the way that had been argued for.

If I can take the Court to the passages, just briefly, from the judgment of his Honour the Chief Justice.  Firstly, at page 108, where his Honour says in footnote 25:

Doyle, CJ in Police v Hall (2006) 95 SASR 482 returned to a position which requires Police v Erwin (1997) 26 MVR 360 to be overruled.

We submit that is incorrect.  Quite the opposite, he had decided in Lobban that it should not be overruled.  He effectively confirmed his position in Lobban in Hall. Then, at paragraph 50, his Honour concluded, after his reference to the various passages from Police v Jervis and Lobban and his Honour Justice Martin’s discussion of French v Scarman in Lobban – at paragraph 50, his Honour the Chief Justice said:

The retraction by Doyle CJ of the criticism of King CJ in French v Scarman leaves very little room for the operation of the general unfairness discretion in drink driving prosecutions ‑

The real thrust of Chief Justice Doyle’s decision was to say the criticism that he had been too narrow was incorrect and it should have been broader.  The second point ‑

As a result, the position put by Doyle CJ in Police v Hall remains authoritative –

The position was that Lobban remained as a proper authority, and his Honour says –

I would respectfully overrule the decision in Police v Erwin.

His Honour Chief Justice Doyle decided that that was not the approach in Lobban that he was going to take, bearing in mind the judgment of his Honour Justice Martin, which he accepted.  That led to the test that his Honour then arrived at as one limited to forensic unfairness in the strict sense in Police v Jervis, and we take issue with that because, for the reasons his Honour Chief Justice Doyle explained, he had been too narrow in his approach, namely, limiting it to police impropriety.

Against that background, his Honour then approaches the question of the operation, or the application of the unfairness discretion, in this case.  In that sense, in our respectful submission, his Honour’s judgment is in error.  In addition, his Honour refers to various examples in paragraph 52 that relate to things that can go wrong in relation to matters that are not necessarily a breach of regulation, and concludes at paragraph 54 in that context:

However, what is important is that, as a matter of legal principle, there is no statutory nor common law measuring sticks by which to decide between them, or by which to distinguish them from the facts in this case.

In our respectful submission, the common law unfairness discretion does not require a statutory foundation, and the common law unfairness discretion is, of course, dependent upon the overarching test of whether or not the defendant is able to have a trial that is not unfair.  In our respectful submission, that is not a reason to deny the existence of the unfairness discretion in this case.  His Honour does not approach it from the point of view that here there had been a breach of regulation, and that the unfairness discretion arose in the context of the trial.  His Honour limited it to the strict sense in Police v Jervis.  Your Honours, coming then to the finding at paragraph 55:

The impossibility of finding a legal, as opposed to a subjective policy foundation for the exercise of the general unfairness discretion in the given examples is inherent in the nature of an RTA, s 47B trial.

Clearly, that applies only if you choose to go the route of section 47K(1).  Then, when his Honour reads section 47B with 47K his Honour decides that the offence is effectively one of driving for a period of two hours before the breath analysis.  We submit that that is not the correct nature of the offence.  Indeed, there is no social evil that such an offence would address.  The correct nature of the offence is that which is charged, driving on a road at a particular time ‑ ‑ ‑

FRENCH CJ:   I think his Honour is just describing, is he not, the factual matters which attract liability, when he talks about “in substance”.

MS SHAW:   Well, except - your Honour might well be right but the difficulty is that his Honour is not addressing - what effectively his Honour then says is that, in his conclusions at paragraph 57, at page 113, in the last sentence:

Finally, the trial of the elements which the police were required to prove pursuant to s 47K of the RTA has not been compromised in any relevant way.

The Act actually has two provisions which argue against that construction.  The first is section 47K(1ab) which plainly links the breath test to breath sample to blood alcohol level back to the conduct, namely, the time of driving and secondly, a section, GA, of the Road Traffic Act which is a section that was described in Parliament as the defence of intermediate drinking - in other words, if between the driving and the time of the breathalyser you are able to prove that in fact you drank - for example, there is an accident, and you came home and had some drinks and the police arrived, that was an unfairness that had been brought to Parliament’s attention and they amended the Act to ensure that that particular circumstance, which might be inconsistent with the suggestion that the offence is having a blood alcohol for two hours, was able to be addressed in the Parliament.  So Parliament was not contemplating an unfairness because you happened to have had a drink in between and passed a provision addressing exactly that.

So, insofar as his Honour’s comments in paragraphs 54 and 55 are concerned, in our respectful submission, the discretion owes its existence to the common law and the duty of the court to ensure a fair trial and does not require a statutory foundation and no party here contends for abrogation.  Its existence is a function of the common law and the duty of the court to ensure a trial is not unfair.

Your Honours, can I come back to two other points that were raised?  One is that in terms of the issue of what is the unfairness and the context of, is this any different to lost evidence.  We refer by way of example to the Court of Appeal’s judgment in Rozenes v Beljajev that I referred to earlier at page 557 of a deceased declaration or a statement. The discretion arose because of the inability of the accused to be able to – or the court to be able to challenge it. Another example where the court might exercise discretion in terms of evidence that might on its face be reliable is in the area of business records where the maker of the statement is unable to be called and the court – on the face of it the document might not necessarily have anything that suggests it is unreliable, but it is denied the ability of the defendant to test it and it can trigger the issue of whether or not the discretion ought to be exercised to exclude it in those circumstances.

So we raise those in relation to examples of it is not about the question of the reliability of the evidence that is the foundation for the exercise of discretion, but rather the overall question of is this a measure that needs to be taken, because the failure to take it will mean that the defendant will be subjected to a trial that is unfair.  So, in that sense, the question of a stay or an exclusion which, as I have said, both potentially are ways in which a court can achieve the remedy of ensuring a fair trial, but the issue of discretionary exclusion was that which was adopted in French v Scarman, that is, the approach of discretionary exclusion was adopted in French v Scarman, although the conduct of the police had occurred after the obtaining of the breath test.

So, in essence, the trigger, if you like, for the unfairness discretion, perhaps interacting or operating in the context of the statute, is that if the evidence goes in, the court will not be able to properly assess it and if that is right, a remedy open to the court is to exclude it.  Of course, in this case that - as I raised earlier in other examples, by operation of statute it left the court with no ability or role in weighing the evidence it was bound to find by reason of section 47K(1ab) that the presumption was conclusive.

Your Honours, I have dealt with most of the matters in the three‑page outline for the purposes of the oral submissions.  The only other matter that we refer to is the suggestion that the proper remedy is a stay.  In our respectful submission, as I have already said, that was not – has not ever been a challenge to the approach of the magistrate.  But where the effect of admitting the evidence, as we have already said, is to place the court in a position where it has to go to a conclusion of arriving at the result that the procedural provisions provide, then the proper method is to exclude the evidence.

The only reason that Holmden v Bitar was referred to – and I accept it did involve the quarantine officers being responsible for destroying the relevant meat, that is not what the decision turned on.  What it turned on – Holmden v Bitar 47 SASR 509 – was that under section 86D of the Quarantine Act the Commonwealth could simply aver that whatever was in tins was in fact meat, and in those circumstances the – first of all, the tins had been destroyed and soon thereafter Ms Bitar asked for access or the ability to test and found out that they had been destroyed. 

What happened was that the defence complained at first instance that we cannot answer this averment because the tins have been destroyed, therefore, your Honour is going to be left where you have to convict and the magistrate, after hearing the respondent’s evidence, or the defendant’s evidence at first instance, dismissed the charge as an abuse.  What his Honour Justice Cox said at page 517 in the last paragraph in terms of the question of whether he should interfere with the approach of the learned magistrate who had dismissed it upon the submission in that case that it was an abuse and it should be dismissed, he said:

Was this a proper case?  I think it may have been.  What was very unusual here was the combination of the averment provision and the destruction of the actual evidence.  Obviously the former would not have been enough without the latter, and in many cases a court would be able to find a less dramatic but equally effective way of dealing with the mere destruction of an important piece of evidence – by reaching the same conclusion by another route, perhaps, or by finding that the prosecution had not proved its case beyond reasonable doubt.  However, such a course was not open to the learned magistrate here.  Because of s 86D, if the case proceeded to judgment in the ordinary way the respondent (it would seem) had to be found guilty.

So it is that combination in that case of the averment, together with the loss of evidence, that led to the court deciding overall that trial was unfair.  We accept that there was the difference, that it was the authorities who did it, but here it is, in our respectful submission, even comparable because the procedural provisions the presumptions have become irrebuttable as a result of not just the destruction of evidence which was lawful in Holmden v Bitar, no unlawful conduct, but here the non‑compliance with a regulation that Parliament intended should be complied with. 

So, in those circumstances, where there was an alternative route for this matter to be prosecuted and where the matter did go the distance, that is, right to the end of the defendant’s case, and the Crown were on notice that this was the challenge, the application was to exclude this evidence, and the reports had been disclosed, in those circumstances the magistrate could have chosen any appropriate remedy, but because the presumption exclusion was indeed the appropriate remedy to prevent the triggering of the operation of 47K in that case.  So, in our respectful submission, the appeal should be dismissed.

FRENCH CJ:   Mr Williams – thank you, Ms Shaw ‑ I image that you do not have anything to say to us.

MR WILLIAMS:   No.  In light of the way the matter has been developed on each side, our oral submissions are fully set out in our outline and unless there are matters the Court wishes to raise those are our submissions.

FRENCH CJ:   Thank you.  Mr Solicitor, you have already promised to say nothing.

MR DONALDSON:   I am happy to be in the same position, you Honour.

FRENCH CJ:   Thank you.  Yes, Mr Solicitor.

MR HINTON:   If the Court pleases.  By way of reply, my first point is we do not suggest the unfairness discretion is abrogated but its operation – or field of operation – we have submitted, is confined and defined by the statutory context in which it falls to be considered.  That involves questions of construction, as your Honour Justice Kiefel put to me, and what is contemplated by the operation of section 47K(1) and section 47K(1a).

My learned friend has referred to Hansard as in some way affecting what is contemplated – none, in particular, have we been taken to.  What is contemplated is a matter of statutory construction.  When we have a look at section 47K(1a), it refers us to the regulations.  The regulations refer us to requirements that must be met.  They contemplate that those requirements may not be met.  As we have already submitted, the fact that they may not be met is not something that conditions the operation of a presumption in section 47K(1).

My second point is the suggestion that absent a blood sample, and the possibility that it may assist, you cannot assess the value of the breath analysis evidence.  In my submission, you can.  Section 47K(1) gives it a value.  It is sufficient to convict.

My third point, the evidence – at one point I took my learned friend – and I am happy to be corrected if I am wrong – the evidence of breath analysis should be excluded because of the way in which the prosecution chose to prosecute its case and because it was on notice that the respondent would seek the exclusion of the breath analysis by virtue of the non‑availability of blood samples.  In my submission, that forms no basis at all to exercise a discretion to exclude evidence in order that an accused not be tried unfairly.  The choice ‑ or rather I should say, you do not exclude evidence to punish the Crown for the way in which it has chosen to run its case.  You exclude evidence because of the consequence of receiving the evidence.

My fourth point is that any consideration of Jervis or Erwin, or the Solicitor‑General’s application in Hall, will not assist your Honours.  The question is, in the circumstances of this case, to receive into evidence the results of the breath analysis, would that give rise to an unfair trial?  What others considered in lower courts in Erwin, or in Hall, or in Jervis about the content of the unfairness discretion is not something that your Honours have to resolve.

My learned friend put that the overarching test is whether or not an accused can have a trial that is unfair.  We dispute that.  This is a question about the reception of evidence.  The focus is narrower.  The focus is upon

the consequence for the trial of receiving the evidence; is the trial rendered unfair by admitting this evidence?

My penultimate point is to deal with Rozenes and the deceased declaration.  That is a different case, if for no other reason than that when you have the declaration of a deceased person that they have signed, you have the benefit of knowing what they would say.  That is a stronger case than a case such as this where you might – you might not – have evidence that will assist you and you just do not know.  A deceased person’s declaration informs you had they been alive what they would have said.  It is not a case of presumptive prejudice, if I can use the term used in Victoria.  Holmden v Bitar I have already been through.  The averment and the destruction caused Justice Cox to grant the relief that he did, but that case would be treated or dealt with differently today.

That leads me to the last point, the alternate relief.  It is said that the suggestion that a stay is the appropriate relief – I think the suggestion is that that should be ignored in favour of excluding the evidence.  A stay is not an automatic alternative to a power to exclude evidence.  A discretionary power to exclude evidence because to admit the evidence might give rise to a trial that is unfair in terms of there being a miscarriage of justice or to protect rights and privileges, achieves a different purpose and requires an inquiry that is different in nature to a stay.

When one has regard to the balancing exercise first referred to in Jago by Chief Justice Mason and picked up in subsequent authorities, the factors relevant in balancing the protection of the court’s process from abuse with the expectation of the public that people who have committed offences will be tried, brings in many different factors.

It is not that we are saying you should have stayed it on the respondent’s application; it is, if there is a remedy – and we do not suggest you will necessarily get a stay – but if there is a remedy for unfairness, then it might be the product of a stay application undertaken in the normal way, that is, with both parties having the opportunity to call if necessary whatever relevance they believe relevant to the factors to be taken into account.  If the Court pleases, those are our submissions.

FRENCH CJ:   Thank you, Mr Solicitor.  The Court will reserve its decision.  The Court adjourns until 10.15 on Tuesday 12 May.

AT 3.01 PM THE MATTER WAS ADJOURNED