Police v Dunstall
[2014] SASCFC 85
•25 July 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v DUNSTALL
[2014] SASCFC 85
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Sulan)
25 July 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - OBJECTIONS OR POINTS NOT RAISED IN COURT BELOW - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - EVIDENCE - OTHER MATTERS
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE - BLOOD TEST AND ANALYSIS
Appeal by police in relation to the decision of a Magistrate to dismiss a complaint against the defendant and respondent. The defendant was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol. The defendant was stopped by a mobile traffic patrol and required to take an alcotest. The test returned a positive result. The defendant was taken to a police station and subjected to a breath analysis test, which recorded a concentration of 0.155 grams of alcohol in 100 millilitres of blood. The defendant was provided with a blood test kit and driven to a hospital, where a medical practitioner took two blood samples. The samples were submitted for analysis, but both were denatured and unsuitable for analysis. An expert gave evidence that the most likely cause of the denaturing was the taking of insufficient blood by the medical practitioner. The Magistrate excluded the evidence of the breath analysis certificate in the exercise of the unfairness discretion and dismissed the complaint against the defendant. An appeal to a single Judge of the Supreme Court by the police was dismissed.
Whether the general unfairness discretion was enlivened such that the evidence of the breath analysis undertaken was properly excluded.
Held per Gray and Sulan JJ (Kourakis CJ dissenting):
1. Appeal dismissed.
Held per Gray J:
1. The safeguards provided by the statutory regime were rendered nugatory as a result of the medical practitioner taking insufficient blood. The defendant was placed in the same position as if a police officer had not informed him of his rights, or had inadequately informed him of those rights, or had provided a defective blood kit
2. A review of the relevant authorities allows the conclusion that the Magistrate was entitled to consider the exercise of the general unfairness discretion when considering the admissibility of the breath analysis evidence.
3. The Magistrate was entitled as a matter of discretion to exclude the evidence.
Held per Sulan J:
1. The statutory scheme gives a defendant a limited ability to test the accuracy of a breathalyser analysis. If there is a failure, through no fault or conduct of the defendant, to exercise his right then that is a proper basis to enliven the unfairness discretion as the trial will be unfair because the defendant is deprived of that right.
2. The defendant had done all that could reasonably be required of him to avail himself of the opportunity to have the breath analysis reading tested.
3. It was open to the Magistrate to exercise his discretion to exclude the evidence.
Road Traffic Act 1961 (SA) s 47B, s 47E and s 47K; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 11; Road Traffic (Drug Driving) Amendment Act 2005 (SA), referred to.
French v Scarman (1979) 20 SASR 333; Ujvary v Medwell (1985) 39 SASR 418; Pacillo v Hentshcke (1988) 47 SASR 261; Police v Jelinek (1998) 200 LSJS 441; South Australia Police v Erwin (1997) 26 MVR 360; R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482; Day v County Court (Vic) (2003) 37 MVR 319; Bunning v Cross (1978) 19 ALR 641; R v Swaffield (1998) 192 CLR 159 (1998) 192 CLR 159; R v Cleland (1982) 151 CLR 1; Van der Meer v The Queen (1988) 62 ALJR 656; Duke v The Queen (1989) 180 CLR 508; Foster v The Queen (1993) 67 ALJR 550; R v Ireland (1970) 126 CLR 321; Ridgeway v The Queen (1995) 184 CLR 19; Harriman v The Queen (1989) 167 CLR 590; Dietrich v The Queen (1992) 177 CLR 292; Williams v Spautz (1991-1992) 174 CLR 509; Jago v District Court of New South Wales (1989) 168 CLR 23; Barton v The Queen (1980) 147 CLR 75; Subramaniam v The Queen (2004) 79 ALJR 116; Police v Sherlock [2009] SASC 64; Police v Pakrou [2008] SASC 364; Police v Jervis (1998) 70 SASR 429, considered.
POLICE v DUNSTALL
[2014] SASCFC 85Full Court: Kourakis CJ, Gray and Sulan JJ
KOURAKIS CJ: The respondent, Mr Dunstall, was charged that on 8 January 2012 he drove his motor vehicle when there was present in his blood the prescribed concentration of alcohol contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (the RTA). After recording a breath analysis reading of 0.155 grams of alcohol in 210 litres of breath, Mr Dunstall opted to have samples of his blood taken. Through no fault of his own the samples denatured and were not capable of analysis. At his trial, the presiding Magistrate excluded evidence of the breath analysis ruling that its admission would operate unfairly against Mr Dunstall. A Judge of this Court dismissed a police appeal against the acquittal of Mr Dunstall. The police bring this appeal against the decision of the Judge. I would allow the appeal. My reasons follow.
The RTA - relevant provisions
It is necessary to set out the legislative provisions creating the offence with which the respondent was charged, and prescribing an evidentiary code for its prosecution, because it is only forensic unfairness in that statutory context which can justify the exercise of the exceptional judicial powers which are in issue in this appeal.
Section 47B RTA provides:
47B—Driving while having prescribed concentration of alcohol in blood
(1) A person must not—
(a) drive a motor vehicle; or
(b) attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
The police are empowered to administer tests to detect the commission of offences against s 47B RTA by s 47E RTA which provides:
47E—Police may require alcotest or breath analysis
(1)Subject to this Act, if a police officer (whether or not performing duties at or in connection with a driver testing station) believes on reasonable grounds that a person—
(a) is driving, or has driven, a motor vehicle; or
(b) is attempting, or has attempted, to put a motor vehicle in motion; or
(c) is acting, or has acted, as a qualified supervising driver for the holder of a permit or licence,
the police officer may require the person to submit to an alcotest or a breath analysis, or both.
Proof of offences against s 47B RTA are substantially facilitated by the provisions of s 47K RTA.
47K—Evidence
(1)Without affecting the admissibility of evidence that might be given otherwise than under this section, 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 operated by a person authorised to operate the instrument by the Commissioner of Police and, 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, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.
(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I and Schedule 1 or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab) If, in any proceedings for an offence, it is proved—
(a)that the defendant drove a vehicle, or attempted to put a vehicle in motion; and
(b)that a concentration of alcohol was present in the defendant's blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was present in the defendant's blood at the time of the conduct referred to in paragraph (a).
…
(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a) the reading produced by the breath analysing instrument; and
(b) the date and time of the analysis.
(2a)If a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a) give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b) at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
(3) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b) purporting to be signed by a person authorised under subsection (1) and to certify that—
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii)the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
(3a)A certificate purporting to be signed by a police officer and to certify that an apparatus referred to in the certificate is or was of a kind approved under this Act for the purpose of performing alcotests, a drug screening test or an oral fluid analysis is, in the absence of proof to the contrary, proof of the matter so certified.
(3b)A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.
…
(4)Subject to subsection (17) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified.
(5)Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—
(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b) the breath analysing instrument produced a reading specified in the certificate; and
(c) a statement in writing required by subsection (2) was delivered in accordance with that subsection,
is, in the absence of proof to the contrary, proof of the matters so certified.
(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a) that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b) that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c) that—
(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.
(8)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).
…
(11)Subject to subsection (17), an apparently genuine document purporting to be a certificate under Schedule 1 and purporting to be signed by a police officer, medical practitioner or analyst, or copy of such a certificate, is admissible in proceedings before a court and is, in the absence of proof to the contrary, proof of the matters stated in the certificate.
(12)If a certificate of an analyst relating to a sample of blood taken under section 47E or 47I is received as evidence in proceedings before a court and states that the prescribed concentration of alcohol has been found to be present in the sample of blood to which the certificate relates, it will be presumed, in the absence of proof to the contrary, that the concentration of alcohol stated in the certificate was present in the sample when the sample was taken.
…
(17)A certificate referred to in subsection (4), (5) or (11) cannot be received as evidence in proceedings for an offence—
(a) unless a copy of the certificate proposed to be put in evidence at the trial of a person for the offence has, not less than 7 days before the commencement of the trial, been served on that person; or
(b) if the person on whom a copy of the certificate has been served under paragraph (a) has, not less than 2 days before the commencement of the trial, served written notice on the complainant or informant requiring the attendance at the trial of the person by whom the certificate was signed; or
(c) if the court, in its discretion, requires the person by whom the certificate was signed to attend at the trial.
…
Regulation 11 of the Road Traffic (Miscellaneous) Regulations 1999 provides (The Regulations):
11—Procedures for voluntary blood test
The following are the prescribed procedures in accordance with which a sample of a person's blood must be taken and dealt with for the purposes of section 47K(1a) of the Act (Evidence):
(a)the person must cause the sample to be taken by a medical practitioner of the person's choice and must deliver the blood test kit supplied to the person under section 47K(2a)(b) of the Act (Evidence) to the medical practitioner for use for that purpose;
(b)the medical practitioner by whom the sample of the person's blood is taken must place the sample, in approximately equal proportions, in 2 containers (being the containers provided as part of the blood test kit);
(c)each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner must be such as to furnish 2 such quantities of blood;
(d)the medical practitioner must seal each container by application of the adhesive seal (bearing an identifying number) provided as part of the blood test kit;
(e)it is the duty of the medical practitioner to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample was taken;
(f)the medical practitioner must then complete a certificate in the form set out in Schedule 3 (being a form provided as part of the blood test kit) by inserting the particulars required by the form;
(g)the certificate must be signed by the medical practitioner certifying as to the matters set out in the form;
(h)the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner;
(i)the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with 1 of the sealed containers containing part of the blood sample;
(j)a copy of the signed certificate must be delivered by the medical practitioner together with the other sealed container containing part of the blood sample to a police officer or an approved courier;
(ja)a police officer to whom a copy of the signed certificate and the other sealed container is delivered under paragraph (j) must deliver the copy and container to Forensic Science SA or to an approved courier;
(jb)an approved courier to whom a copy of the signed certificate and the other sealed container is delivered under this regulation must deliver the copy and container to Forensic Science SA;
(k)the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken;
(l)on receipt of the blood sample container and certificate at Forensic Science SA, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood;
(m)the analyst must then complete and sign a certificate certifying as to the following matters:
(i)the date of receipt at Forensic Science SA of the blood sample container and the certificate accompanying the blood sample container;
(ii)the identifying number appearing on the adhesive seal used to seal the blood sample container;
(iii) the name and professional qualifications of the analyst;
(iv)the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood;
(v)any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
(vi)any other information relating to the blood sample or analysis or both that the analyst thinks fit to include;
(n)the analyst's certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person's address on the certificate accompanying the blood sample container;
(o)a copy of the analyst's certificate must be sent to or retained on behalf of the Minister;
(p)a copy of the analyst's certificate must also be sent to the Commissioner of Police;
(q)the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood.
The trial
At Mr Dunstall’s trial in the Magistrates Court the prosecution case comprised the following:
·a certificate pursuant to s 47K(3a) and (3b) of the RTA certifying that Mr Dunstall had submitted to an alcotest which indicated the presence of a prescribed concentration of alcohol;
·a Certificate of Authority pursuant to s 47K(3)(a) of the RTA to the effect that the Commissioner of Police had authorised the police officer, Matthew Newlands, to operate a breath analysis instrument;
·an extract from the Government Gazette approving breath analysis instruments of the kind used by Newlands for the purpose of conducting a breath analysis;
·a certificate tendered pursuant to s 47K(5) of the RTA certifying that the respondent submitted to an analysis of a sample of his breath by means of a Drager 7110 breath analysing instrument and that the instrument produced a reading of 0.155 grams of alcohol in 210 litres of breath and that the prescribed statement in writing was provided to him;
·a statement, admitted by consent, of the breath analysis operator that the requirements and procedures in relation to the breath analysing instruments and breath analysis under the RTA were complied with;
·a statement, admitted by consent, of a police officer supported by an extract of a notebook of a police officer, Matt Round, that Mr Dunstall’s vehicle was pulled over at 12.30 am on 8 January 2012, and that after a breath analysis was conducted Mr Dunstall was conveyed to the Christies Beach Police Station and then later to the Noarlunga Hospital for a blood test;
·a statement, admitted by consent, of Newlands that he gave directions to Mr Dunstall to provide samples of breath for the purposes of analysis by a breath analysing instrument and that he had read the prescribed oral advice to Mr Dunstall who then signed a written request for a blood test;
·a certificate of analysis, admitted by consent, indicating that the blood in the sample analysed had denatured and was unsuitable for analysis; and
·a toxicology report, admitted by consent, recording that the blood sample submitted for analysis to the Forensic Science Centre on 16 August 2012 had denatured and was unsuitable for analysis.
The Magistrate’s finding
The Magistrate found that:
·the defendant was driving a motor vehicle on a road when he was stopped by police at 12.30 a.m. on 8 January 2012;
·he submitted to a breath analysis test between 12.51 a.m. and 12.55 a.m.;
·the results of that breath analysis test showed a blood alcohol reading of 0.155 grams in 100 millilitres of blood;
·the defendant requested a blood test kit, and was conveyed to the Noarlunga Hospital by police at about 1.04 a.m.;
·sometime between 1.18 a.m. and 2.24 am Dr Klima, an emergency medical trainee, took blood using the blood test kit which police had provided to the respondent;
·both samples of blood taken by Dr Klima were submitted for analysis for alcohol, one by the police in their usual timely fashion and the other later by the defendant. Both analyses concluded that ‘the blood was denatured and unsuitable for analysis for alcohol’.
The Magistrate found on the balance of probabilities that the blood samples had denatured because of the failure of Dr Klima to take a sufficient sample of blood when Mr Dunstall presented at the Noarlunga Hospital. Dr Klima had no independent recollection of taking the sample. Mr Dunstall gave evidence that Dr Klima seemed to have trouble extracting sufficient blood and that at one point during the procedure she said “that will do”. A forensic pathologist Mr Collins, who was called as a defence witness, gave evidence that the most likely cause of denaturing was that an inadequate sample had been taken. The Magistrate’s finding was therefore well supported by the evidence. That finding not only absolves Mr Dunstall of any responsibility for the denaturing of the sample but it also excludes, as a cause, any defect in the kit provided by the police.
The Magistrate’s reasons for exercising his discretion to exclude the evidence appear in the following paragraphs of his reasons:[1]
It is, however, this case. In this case the defendant has been deprived of his ability to rebut the presumption. He has, despite his best efforts, been denied the only opportunity he had to challenge the only piece of police evidence that implicates him in the offence. He has done all he could do to comply with the requirements necessary to challenge the prosecution evidence, but has been denied of that opportunity, not through his failings, but by the apparent failure of the medical practitioner to comply with the regulations relevant to the taking of a sample of blood. That, in my view, results in a unfairness to this defendant and results in an unfair trial. Accordingly, the evidence of the breath analysis should be disregarded and the charge fails. Accordingly, I order the charge be dismissed. Costs are to be agreed.
[1] Police v Dunstall [2013] SAMC 25 at [16].
The decision of the Magistrate was upheld on appeal by a Judge of this Court who found:[2]
It is my view that the circumstances which arose in this case did provide a proper basis for the exercise of the residual discretion to exclude the prosecution evidence on the basis of unfairness, first, because the failure of the medical practitioner to comply with reg 11(c) effectively placed the respondent in the same position as if no blood sample had ever been taken, second, because the respondent did do everything in his power to exercise the statutory rights which were given to him, and thirdly, there is in fact nothing else he could have done.
[2] Police v Dunstall [2013] SASC 188 at [46].
Abuse of process
A court hearing a charge of a criminal offence has an inherent power to protect a defendant from forensic unfairness in the prosecution of the charge and a power to protect its processes from abuse. The court may achieve those ends by making an order staying the prosecution or by excluding admissible evidence if its receipt would forensically disadvantage a defendant so that there is a perceptible risk of a miscarriage of justice.
In Williams v Spautz[3] Mason CJ, Dawson, Toohey and McHugh JJ said:
The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, “to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial which is unfair”. This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.
However, in the light of the particular object sought to be achieved by an exercise of the jurisdiction in each class of case, it is important to distinguish between them. If a permanent stay is sought to prevent the accused from being subjected to an unfair trial it is only natural that the court should refrain from granting a stay unless it is satisfied that an unfair trial will ensue unless the prosecution is stayed. In other words, the court must be satisfied that there are no other available means, such as directions given by the trial judge, of bringing about a fair trial. Jago was such a case. Consequently, the judgments in that case gave emphasis to the necessity that the court should satisfy itself upon this point before granting the relief sought.
[3] (1991-1992) 174 CLR 509 at 518-519.
In Jago v District Court of New South Wales[4] Mason CJ recognised that a stay of a criminal proceedings for an abuse of process was well recognised in the case of undue delay but that there was no authoritative statement about its application to unfairness caused in other ways. Nonetheless Mason CJ put the scope of the Court’s power widely in the following passages:[5]
[4] (1989) 168 CLR 23.
[5] Jago v District Court of New South Wales (1989) 168 CLR 23 at 30-33.
In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.
For the reasons given, I agree with the approach of Richardson J [in Moevau v Department of Labour] as I have explained it. Bearing in mind his Honour’s relatively broad view of what may amount to an “abuse of process”, I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated:
The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognized purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court.
The continuation of processes which will culminate in an unfair trial can be seen as a “misuse of the Court process” which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg v Derby Crown Court: Ex Parte Brooks. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness. …
The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial: see Barton; Sang; Carver v Attorney-General (NSW). At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. …
(Footnotes omitted)
In Barton v The Queen[6] Wilson J, in a passage which was approved by Mason CJ in Jago, said:
I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. A defect of this kind will ordinarily reside in the nature and content of the charge or charges contained in a particular indictment in the circumstances of the case. I find it more difficult to conceive of an abuse of process arising in cases based, not on a criticism of the charge itself, but on procedures that either have been or are proposed to be followed. …
[6] (1980) 147 CLR 75 at 111.
In Subramaniam v The Queen[7] Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ said:
It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner, the inherent power of a superior court to stay proceedings on the ground of “abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”
Fairness or unfairness has been said to defy “analytical definition” and to “involve an undesirably, but unavoidably, large content of essentially intuitive judgment”. Deane J in Jago posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or admissions; failure to hold committal proceedings; the absence of legal representation of an indigent person facing serious criminal proceedings; and, unreasonable delay.
(Footnotes omitted)
[7] (2004) 79 ALJR 116 at [26]-[27].
The power of a court to stay criminal proceedings as an abuse of process was considered by this Court in Police v Sherlock.[8] Doyle CJ, with whom Sulan and Kourakis JJ, agreed explained:[9]
[8] [2009] SASC 64.
[9] Police v Sherlock [2009] SASC 64 at [65]-[66], [69]-[70].
It is one thing to say that a court may stay the trial of a charge if that trial would be unfair. It is another thing to apply the general proposition to a particular case.
First of all, the exceptional nature of the remedy must be borne in mind. Ordinarily, when a court’s jurisdiction is invoked, that jurisdiction must be exercised. Second, it is not a court’s function to intrude upon the independent discretion of those State officials who have the responsibility to decide whether or not a person should be prosecuted. The power to stay proceedings cannot be used as a disguised or indirect means of stopping the prosecution because the Court considers that the bringing of the prosecution is, in a general sense, harsh or unfair. Moreover, as is emphasised in the authorities, the power to stay proceedings is exercised to prevent unfairness that amounts to injustice. In some cases the power will be exercised because of a risk that a trial will be unfair. But particular care is called for when the Court is asked to stay proceedings, not because they can be shown to be unfair, but because of a risk that they will be unfair to the accused. Finally, the Court must balance the right of the accused to a fair trial, and the public interest in the bringing to trial of a person charged with an offence and the question of innocence or guilt being decided. The decision to grant or to refuse a stay of proceedings is not to be made solely from the point of view of the accused. The public interest must also be considered. …
But ordinarily, as the authorities emphasise, a fair trial is a trial according to law. That is what a court undertakes, and that is what a court should provide. In the course of a trial according to law the court will, of course, apply the relevant law, and the court will exercise such powers as it has to ensure that the trial is fair. So the notion underlying a fair trial is not that of a trial which the casual observer would say was fair, meaning that the accused could not have been better placed than the accused in fact was at the trial, or meaning that in all respects it was an even contest. To many members of the community, a trial might seem unfair because one party is represented by experienced counsel, and the other by inexperienced counsel. Many members of the community might think it unfair if a witness upon whom the defence relies dies before trial, and that witness’s testimony becomes unavailable. But the legal concept of a fair trial is a much narrower one. It is, as I have explained, a trial according to law, the court exercising such powers as it has to make the trial fair. It can only be in exceptional circumstances that a court can decide that, despite the trial proceeding according to law, and despite the court exercising those powers that it has to ensure a fair trial, nevertheless the trial cannot be a fair trial, and that such unfairness will call for the proceedings to be stayed. In that context it is worth repeating the often cited observation by Wilson J in Barton at 111:
I would add, in the interest of clarity in the present context, that in my opinion the concept of abuse of process carries with it the inference of a trial which if allowed to proceed must necessarily be unfair to the accused. It is a fundamental defect which goes to the root of the trial, of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
A court asked to exercise its power to stay proceedings must bear in mind its duty to hear the proceedings according to law. It is not the function of a court to try to achieve some kind of equality as between the parties, or some kind of fairness in the broadest sense referred to above. Earlier in my reasons I set out some observations by Brennan J in Jago, commenting on obstacles to a fair trial that courts encounter and with which they must deal. To the extent that those comments reflect how a court of trial must proceed when faced by general unfairness, I respectfully adopt what his Honour said. In Sedmak v Police [2008] SASC 307 I had cause to consider this matter, and said at [28]-[29]:
A court cannot ensure that each case before it is heard and decided fairly, using that term in the way in which it is commonly used. An important witness might die, or fall ill, or be unavailable when a case comes to trial. One party might have better quality representation than the other. One party might be better resourced than the other. Litigation can be affected by all kinds of events, accidents and influences, many of them being beyond the reach of the powers of the court: see Jago at 49-50 Brennan J.
That is why I emphasise that the power to stay proceedings is not to be approached on the basis that the court will stay proceedings simply because, in a general sense, it can be said that in some respect the proceedings will be unfair from the defendant’s point of view.
I adumbrated some of the considerations affecting an evaluation of whether proceedings are an abuse of process in Police v Pakrou.[10]
[10] [2008] SASC 364 at [60]-[74].
General Unfairness Discretion
In R v Lobban[11] Martin J, with whom Doyle CJ and Bleby J agreed, identified the discretion to exclude evidence which, if admitted, would render the trial process unfair in the following terms:
The warning in Rozenes v Beljajev concerning the need to avoid usurping the function of the jury should be heeded. In addition, as Gaudron J observed in Dietrich in the passage to which I have referred, the inherent powers used to serve the purpose of achieving a fair trial “do not permit of idiosyncratic notions of what is fair and just”. Nevertheless, for these purposes the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of “the rights and privileges of the accused”, which rights “include procedural rights” (at 189 and 197). Both discretions look “to the risk that an accused may be improperly convicted” (at 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (at 501):
[A]s is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person that is the general principle.
[11] (2000) 77 SASR 24 at [82].
Discussion of Principles
Some basic propositions can be drawn from the above statements.
It is for the Parliament to enact such offences as it sees fit and to prescribe, within constitutional limits, the methods of proof of the elements of the offence so created.[12] No contention was advanced in this matter that the provisions of the RTA contravened any constitutional limit.
[12] Nicholas v The Queen (1998) 193 CLR 173.
It is the duty of the courts with jurisdiction to hear and determine charges of offences created by Parliament to determine the admissibility of evidence in accordance with the common law and statutory rules of evidence. A court which is asked to exercise the exceptional power to stay a prosecution, or to exclude otherwise admissible evidence, on the grounds of forensic unfairness should first clearly identify that unfairness by reference to the substantive and evidential matters in issue. It is only unfairness in the adjudication of a criminal charge according to law which can enliven the exceptional power and move a court to exercise it. It is trite, but apparently necessary to emphasise, that a judge must not exercise that power because he or she takes the view that the statutory provisions, in themselves, operate unfairly. In particular, it is not the constitutional function of a court to refuse to hear a prosecution, or to refuse to receive admissible evidence, because the court holds the view that the method of proof prescribed by the Parliament is inferior to common law proofs or that Parliament’s definition of the offence is draconian. As Doyle CJ explained in Police v Jervis,[13] forensic unfairness is not unfairness “considered at large, with some broad idea of fair play or with whether the forensic context is an even one”. A lay conception of unfairness of that kind becomes a charter for subjectivism and arbitrary justice. It is inimitable to the rule of law for the courts to usurp the legislative function of Parliament by invoking a wide discretion to obstruct prosecutions which are brought in accordance with statutory provisions.
[13] (1998) 70 SASR 429 at 446.
Construction and purpose of s 47K and Regulation 11
In this case there is no dispute that the offence against s 47B RTA was proved in accordance with the evidentiary aids enacted by the Parliament in s 47K RTA. Nor was there any suggestion that the conduct of the trial in accordance with the statutory evidential code was in any way compromised by the denaturing of the samples. Nor was it shown that the defendant was in any way disadvantaged in mounting such challenges, severely limited by statute as they undoubtedly are, to the operation of the aids to proof provided by s 47K of the RTA as he wished.
Section 47K(1a), on its terms, gives no procedural or substantive right to a defendant. To the contrary, it restricts the evidence which a defendant may adduce in rebuttal of the presumptions attached to the breath analysis result to evidence of the blood alcohol concentration of a sample of blood taken in accordance with procedures prescribed by regulation. The effect of that restriction is that, for any driver who declines to have a sample of blood taken, no defence case in rebuttal of the presumption can be put. In such a case the absence of a defence case in rebuttal does not make the adjudication of the issues, which arise on the prosecution of a case in reliance of the evidentiary aids found in 47K of the RTA, in any relevant sense forensically unfair. The issues which arise on a prosecution which relies on s 47K of the RTA are limited to proof of the indication given by a breath analysing instrument as defined by the Act and proof of its operation in accordance with the statutory requirements. The evaluation and determination of those issues is not in any way dependent on the existence, or absence, of a defence case in rebuttal of the presumption.
It was not argued in this case, nor as I understand it has it ever been suggested, that the discretion to stay a prosecution, or to exclude evidence, is enlivened in a case where a driver has simply declined to request a blood test kit or to have a sample of his or her blood taken. 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 arising from a motorist’s decision not to request a blood test.
Nonetheless the respondent contends that the discretion to exclude evidence tendered pursuant to s 47K of the RTA is enlivened when a driver takes steps to have a sample of his or her blood taken for the purposes of analysis but is unsuccessful, through no fault of his or her own. If, in any relevant sense, it could be said that a driver has a procedural right 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. If there is such an entitlement, the forensic disadvantage is found in the denial of the procedural right to adduce that evidence.
However, a driver/defendant has no such right. The right cannot be found in s 47K(1a) of the RTA. That subsection simply precludes a driver/defendant from adducing much of the evidence that might otherwise have been admissible to show that the blood alcohol concentration indicated by the breath analysing instrument is unreliable. Section 47K(1a) limits the evidence that a defendant might call, it does not, in any sense, give a right to call that evidence. It can be accepted that s 47K(1a) RTA allows for a check against the operation of the presumptions enacted by the other provisions of that section by not precluding a defendant from adducing evidence of blood test results. It is a completely different proposition to suggest that s 47K(1a) of the RTA confers a right on the defendant to adduce that evidence by imposing an obligation, or authorising regulations which impose an obligation, on third persons to assist a driver/defendant to obtain that evidence. Section 47K(1a) of the RTA does not confer any such procedural right.
In the prosecution of offences to which the common law, or the provisions of the Evidence Act 1929 (SA), apply without modification, the parties may call such evidence as is admissible according to what might be called the generally applicable rules of evidence. However, the passages that I have cited above from the judgment of Doyle CJ in Sherlock show that there is no forensic unfairness in the mere inability to collect or adduce evidence which, it might be supposed, would have assisted a defendant if it were available. At common law that position prevails even for those defendants who have taken all reasonable steps to procure that evidence but fail, through no fault of their own, to do so. Applying that same approach to the prosecution of offences against s 47B RTA there can be no relevant distinction between a driver who simply declines to ask for a blood test and one who takes all reasonable steps to obtain a sample and have it analysed but, through no fault of his or her own, fails to do so. A driver defendant has no more “right” to have evidence of blood analysis received in the defence case in rebuttal than the defendant’s in Pakrou and Sherlock had to the CCTV footage which had been lost in those cases.
The remarks of Doyle CJ in Police v Hall are apposite:[14]
The absence of evidence of the result of an analysis of a sample of blood taken from a driver does not give rise to any risk of the court convicting a defendant on the basis of evidence that is unreliable, is defective, or that the court is unable to assess for itself (although, in this case, no particular assessment is called for).
Nor can it be said that there is a perceptible risk of a miscarriage of justice were the court to act on the evidence that the magistrate excluded. There is simply no basis for saying that.
There is, in the circumstances, no need to examine this aspect of the matter more closely. A discretion to exclude unreliable evidence, simply because it is unreliable, would intrude on the function of a jury, and would compromise the process of finding facts. The scope of the discretion would call for closer examination, if unreliability of the evidence was the basis of its exercise.
[14] (2006) 95 SASR 482 at [49]-[51].
Although Regulation 11 speaks in terms which might appear to cast a duty on medical practitioners, on any analysis it simply cannot do so. It is a trite proposition that a regulation cannot rise above its source. Regulation 11 is made for the purposes of s 47K(1a) of the RTA.
I have already observed that s 47K(1a) RTA excludes any evidence in rebuttal other than a sample of blood taken in accordance with the procedures prescribed by the Regulations. The purpose of Regulation 11 is therefore to prescribe the necessary conditions precedent to the admissibility of evidence adduced pursuant to s 47K(1a).
If s 47K(1a) does not confer that right, Regulation 11 cannot do so. Regulation 11 cannot cast a duty on a medical practitioner if to do so would be to go beyond the purpose for which the regulation was authorised by s 47K(1a).
In Police v Hall[15] Doyle CJ reached the same conclusion:[16]
I do not accept that the fact that a blood sample is not taken, or that the taking of the sample is delayed, without fault on the part of the driver, makes the use of the result of the breath analysis at a later trial unfair. The statutory scheme leaves it to the driver to get a sample of blood taken. It simply permits that to be done. It does not create an enforceable right to have that done. That being so, only in the most general of senses can it be said to be unfair if, through no fault of the driver, the driver does not have a sample of blood taken, or the sample is taken after such a lapse of time that it cannot be of any forensic assistance. Unfairness in that general sense is not, in my opinion, unfairness in the relevant sense.
I emphasise, in this context, that in the kind of situation that I have postulated no procedural right of the driver has been infringed. The so-called “statutory safeguard” is one which, in the nature of things, depends upon the driver having a sample of blood taken within what I will call, for convenience, an appropriate time.
[15] (2006) 95 SASR 482 at [49]-[51].
[16] (2006) 95 SASR 482 at [58]-[59].
The word “must” appearing in Regulation 11 mandates the procedures which “must” be attended to if the blood analysis is to be admissible pursuant to s 47K(1a) of the RTA. It is simply nonsensical to suggest that the regulation purports to impose a duty in any other way. Even if a judge were available to hear a telephone application for an injunction from a motorist in a busy hospital emergency department, no mandatory injunction would be ordered against a medical practitioner to take, and or deal with, the motorist’s blood samples in accordance with Regulation 11. Moreover, if, as is conceded, no duty is imposed on a medical practitioner to take the blood sample in the first place, it is impossible to construe those parts of Regulation 11 which require the samples to be dealt with in a particular way as imposing a duty on the medical practitioner.
A construction of Regulation 11 to the effect that it imposes a positive duty on a medical practitioner is also improbable given the mischief to which it is addressed. It is unlikely that the Governor intended to give motorists detected with more than the prescribed concentration of alcohol an entrenched statutory entitlement to, and priority over, the use of scarce medical resources which are hardly sufficient to treat members of the public suffering from injury or ill health.
To understand the operation of Regulation 11, it is important to understand that s 47K(1a)(b) of the RTA allows a driver/defendant to adduce evidence of the analysis of one of the two blood samples which is given to him. Regulation 11 requires the other of the two samples to be delivered to the Forensic Science Centre. Plainly enough, the purpose of the requirement to deliver a sample to the Forensic Science Centre is not to assist the defendant motorist who receives a sample of his own. The purpose is to give the prosecution access to independent evidence of a blood analysis conducted by the Forensic Science Centre. The Forensic Science Centre’s analysis can then be used, if necessary, to contradict the privately procured analysis of the sample given to the defendant. The purpose of the mandatory language of Regulation 11 as to taking sufficient samples, taking steps to ensure that the samples are not denatured and delivering one of them to the Forensic Science Centre is to ensure that there is a “control” sample to use against an analysis of the defendant’s sample. The effect of the mandatory language is to deny the defendant the right to adduce evidence of the analysis of his or her own sample if the procedures calculated to ensure that a reliable control sample is analysed by the Forensic Science Centre are not followed. In short, if the prosecution is not in a position to contradict the blood analysis reading of the defendant’s sample with a Forensic Science Centre analysis, he or she will not be permitted to adduce evidence of that low reading in rebuttal of the breath analysis certificate received pursuant to s 47K(5) of the RTA. The Regulation 11 procedure safeguards the prosecution, not the defendant.
Indeed, the facts of this case suggest the importance of that safeguard. Suppose that a driver/defendant’s private medical practitioner had provided a sufficient sample to the defendant, but an insufficient sample to the Forensic Science Centre. Suppose further that analysis of the former produced a reading below the prescribed concentration but that the latter denatured precluding analysis. The evidence of the defendant’s analysis would be inadmissible because of the failure to provide a sufficient sample to the Forensic Science Centre as required by Regulation 11. Were it otherwise, there would be some scope for mistaken analysis, if not abuse and fraud, in the driver/defendant’s dealing with his sample. With the exclusion of blood analysis evidence the driver/defendant in such a case would be convicted on the breath analysis certificates tendered pursuant to s 47K RTA even though the failure of his chosen medical practitioner to take an adequate second sample was not his fault. The prosecution of the driver/defendant in such a case could hardly be declared unfair for the failure of his chosen medical practitioner to comply with Regulation 11. Yet, on the respondent’s case, the failure of a medical practitioner to obtain sufficient samples for both the respondent and the Forensic Science Centre leads to the converse result. The lack of coherence in these results exposes the lack of any legal foundation for the respondent’s conception of unfairness. If it is to be contended that in the case I have postulated the defendant’s analysis is admissible, despite non-compliance with Regulation 11, which has denied the prosecution access to an independent analysis by the Forensic Science Centre, the abandonment of any fidelity to the statute and the regulations made thereunder is complete.
Forensic Unfairness and s 47K
The importance of a careful examination of the statutory foundation on which an allegation of forensic unfairness is made cannot be emphasised enough.
In French v Scarman[17] the foundation for the exercise of the discretion was the failure of a police officer to comply with the mandatory requirement of the then s 47f(2) RTA “to do all things necessary to facilitate the taking of the blood sample”. That provision, in effect, made the admissibility of the breath analysis evidence obtained by the officer contingent on the facilitation of the blood test.[18] King CJ expressly referred to The Queen v Ireland[19] as governing the discretion pursuant to which the evidence was excluded. King CJ said:[20]
In one sense, of course, it can be said that the evidence constituted by the breath analysis was not unlawfully or unfairly obtained, because the obligation to submit to the breath test was not dependent upon compliance by the police with subs (2). In my opinion, however, subs (2) is a safeguard for the citizen expressly provided by the legislature and it is so closely connected with the obligation to submit to the breath test that non-observance by the police of the safeguard is a sufficient foundation for the discretion.
[17] (1979) 20 SASR 333 at 337.
[18] See Hall v Police (2006) 95 SASR 482, at [42]-[43] per Doyle CJ, at [94]-[96] per Bleby J.
[19] (1970) 126 CLR 321.
[20] French v Scarman (1979) 20 SASR 333 at 338.
In Police v Jervis,[21] Doyle CJ expressed the view that it was the public policy discretion to exclude improperly obtained evidence which was applied in French v Scarman. With respect, that is inconvertibly so.
[21] (1998) 70 SASR 429 at 439.
In evaluating claims of forensic unfairness under the current statutory scheme, it is important to pay close regard to the history of legislative amendments set out in the judgment of Sulan J and, in particular, to the ultimate removal in 2005 of any duty on police to facilitate the taking of a blood sample other than to provide a blood kit if requested by a motorist. As I have explained, Regulation 11 does not condition the admissibility of the evidence of the breath analysis but, instead, prescribes conditions on the admissibility of a defendant’s evidence in rebuttal of the police evidence.
In Police v Hall[22] Bleby J commented in similar terms on the significance of the change made to the statutory scheme after the decision in French v Scarman.
[22] (2006) 95 SASR 482 at [115]-[118].
The decision in French v Scarman does not assist the respondent at all. The decision in Ujvary v Medwell[23] rests on the same basis. It is wrong to ignore the amendments to the RTA made by the Parliament after the decision in French v Scarman by mechanically applying that case to what is now a very different statutory scheme.
[23] (1985) 39 SASR 418; see also Pacillo v Hentschke (1988) 47 SASR 261.
It is not to the point that the respondent in this case, for quite different reasons to those considered in French v Scarman, is unable to adduce evidence in rebuttal. To approach the problem from the end point, the lack of any evidence in rebuttal, ignores the statutory context in which the forensic issues arise and substitutes a policy laden conception of fairness for the test of forensic unfairness.
The majority in this case have relied on the decision of Nyland J in Police v Erwin.[24]With respect, that decision is something of an outlier which does not sit well with any other decision on this issue.[25]
[24] (1997) 26 MVR 360.
[25] In Police v Jervis Doyle CJ respectfully held that Police v Erwin was wrongly decided. In R v Lobban Doyle CJ modified that overruling. I will return to what Doyle CJ said in Lobban because, in Police v Hall his Honour subsequently qualified his remarks in Lobban. In effect, Doyle CJ in Police v Hall returned to a position which requires Police v Erwin to be overruled.
It is notable that in Erwin there was no close consideration of the purpose and effect of the regulation which governed the taking of blood tests. That regulation is set out and considered in the judgment of Mullighan J in Police v Jelinek.[26]Significantly, Mullighan J confirmed the decision of the Magistrate to exclude the results of the breath analysis on the ground of the police involvement in the nurse’s decision not to give one of the blood samples to the motorist in accordance with the regulation. There was no such police involvement in Erwin.
[26][1998] SASC 6988.
It is necessary to say something more about the relationship between the general unfairness and public policy discretions and their application to drink driving prosecutions. In Police v Jervis[27] Doyle CJ left very little room for the exclusion of evidence of breath tests on the ground of any general unfairness if the police had not acted unlawfully or improperly:
I do not accept that submission. The purpose of Regulation 6 is to lay down a procedure that ensures the integrity of the sample of blood that is taken, and the reliability of any later analysis of that sample. Regulation 6 establishes a procedure that a defendant may utilise, or initiate, if the defendant wishes. But I do not regard participation in that process by a medical practitioner, or by State Forensic Service, as part of the process of detecting possible offenders or part of the process of enforcing the law against possible offenders. To my mind, the nature and purpose of the exercise of the discretion on the grounds of unfairness suggests that the mistake by the doctor cannot enliven the discretion.
Of course, from one point of view it can be said to be unfair that the defendant should, as a result of the mistake of a medical practitioner, lose the opportunity to rebut the statutory presumption in the manner contemplated by section 47G(1a). I mention in passing that, in the first appeal, the defendant did not lose that opportunity altogether. A sample of blood was analysed by State Forensic Service, and I can see no reason why the defendant could not have relied upon the result of that analysis had it suited her to do so. What the defendant lost was the opportunity to have a sample of her blood analysed by an analyst of her own choice: see Regulation 6(q). But, in my opinion, to talk of unfairness in this way is to use that term too loosely. In my opinion, the relevant point is that there is no unfairness in a trial in which the prosecution adduces evidence of the result of a breath analysis, when the loss of the opportunity to challenge the presumption that rests upon the result of the breath analysis is not the product of any illegality, impropriety or failure to observe statutory requirements by a member of the police force or by those responsible for the enforcement of the law. There is nothing improper in the manner in which the evidence was obtained, and no relevant impropriety in the circumstances under which the defendant has lost the opportunity to challenge the presumption that rests upon the evidence.
I repeat that fairness or unfairness is not considered at large. The consideration of fairness focuses upon the trial process and upon the protection of the rights of the defendant. If no right of the defendant has been infringed, at least by the law enforcement authorities, I do not accept that it can be said that the operation of section 47G(1) means that the trial is unfair.
I accept that unfairness can arise through no fault of the law enforcement authorities. The case of an admission made by an accused person who is suffering from severe shock might be unfair, even if the person to whom it was made was unaware that the person was suffering from shock: cf The Queen v Ostojic (1978) 18 SASR 188 at 197 Wells J. But in that situation the authorities seek to use an admission made in circumstances that render its use unfair. In such a case they have, unwittingly, taken advantage of the state of the accused. But I find no analogy between such a case and this one.
In my opinion the case is readily distinguishable from the cases to which I have referred, and from other cases decided under section 47G. In the cases in which evidence of the result of the breath analysis has been excluded, there has been a failure by police to comply with a requirement of the Act, or conduct by the police that can be regarded as at least inappropriate: see, for example, Nolan v Rhodes (1982) 32 SASR 207. In those cases, the member of the police force was obliged to facilitate the taking of the sample, and to be present at the taking. A breach of the former obligation was, at least, an impediment to the exercise of the right given by section 47f. A breach of the latter obligation meant that the blood sample, even if taken without police "facilitation", would not be "taken and dealt with in accordance with section 47f". In those circumstances, failure by a member of the police force to comply with section 47f, or conduct that deterred a person from ensuring the right under section 47f, was clearly linked to the breath analysis procedure, and was clearly conduct by a law enforcement authority that should be discouraged.
[27] (1998) 70 SASR 429 at 447-448.
After tying the unfairness discretion to the police impropriety, Doyle CJ saw no proper basis for the decision to exclude the evidence in Police v Erwin, and, for that reason, overruled it. However, in R v Lobban Doyle CJ accepted that the general unfairness discretion may be wider:[28]
On reflection, my reasons in Police v Jervis (1998) 70 SASR 429 did not adequately identify the availability and scope of what Martin J has described as the general unfairness discretion. The approach which I took to the unfairness discretion in Jervis may, as a result of that, have been more limited than it should have been. In the light of the facts of the two appeals considered by the Court in that case, the approach taken by Martin J does not cause me to have any doubts about the correctness of the decision in Jervis. Mere failure to comply with or to satisfy a statutory requirement connected with the obtaining of evidence, to be used by the prosecution, does not of itself amount to unfairness. The exercise of the unfairness discretion requires a more careful consideration of the circumstances. The scope for the exercise of the general unfairness discretion, in cases like Jervis, 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.
In the light of that, I should add that I remain of the view that in Police v Erwin (2 October 1975, S6375, unreported), 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 in these proceedings.
[28] (2000) 77 SASR 24 at [2]-[3].
Doyle CJ also joined in the following criticism of French v Scarman made in the judgment of Martin J in Lobban. Martin J criticised French v Scarman for extending the public policy discretion to improper conduct which denied a defendant an opportunity to obtain exculpatory evidence:[29]
[29] R v Lobban (2000) 77 SASR 24 at [39]-[41].
In my opinion, the views expressed by Doyle CJ in Question of Law Reserved to which I have referred correctly state the law with respect to the application of public policy discretion and the rationale for the existence of that discretion. It might be said that the application of the public policy discretion to the circumstances in French v Scarman does not extend the area of operation of the discretion very far beyond the limits identified by Doyle CJ. Although the unlawful or improper conduct of the law enforcement authorities in French v Scarman was not directed to the obtaining of the evidence, it occurred immediately after the evidence had been obtained and was committed in connection with a safeguard provided by the legislation directed to the reliability of that evidence. I acknowledge the force of the argument that, in those circumstances, the application of the public policy discretion was justified in order to avoid the appearance of the court giving its imprimatur to the improper conduct of the law enforcement authorities which occurred so soon after the evidence was lawfully obtained. As a more extreme example, if law enforcement officers deliberately sabotage a safeguard with a view to placing an accused at a disadvantage in defending a charge, it can reasonably be argued that, although the evidence was lawfully obtained, the prosecution is indirectly obtaining a curial advantage through that unlawful or improper conduct. To allow such advantage to persist through a trial might be perceived as permitting a misuse of the court which could bring the administration of justice into disrepute.
In my opinion, however, the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities. In identifying the rationale for the existence of the discretion, the High Court and other authorities have emphasised the importance of preventing the courts from being “demeaned” by the use of the “fruits of illegality” or being used “to effectuate the illegal stratagems of law enforcement agents or persons acting on their behalf”. The focus is thus upon bringing the administration of criminal justice into disrepute through the use of the courts in this manner. The courts have not undertaken the role of supervising the conduct of law enforcement authorities generally in circumstances divorced from any attempt by those authorities to use the courts to further the aims of their unlawful, improper or unfair conduct.
The unlawful conduct of the law enforcement authorities in the matter under consideration and in French v Scarman did not offend the rationale identified by Doyle CJ in Question of Law Reserved . The critical element missing in both is an attempt by the prosecution to advance its case by using evidence obtained by or involving unlawful or improper conduct by a law enforcement authority. In my view, the history of the development of the public policy discretion and the rationale now identified for its existence do not sit well with the extension of its area of operation to encompass the possible exclusion of evidence obtained lawfully and without the occurrence of any unlawful, improper or unfair conduct on the part of the law enforcement officers in connection with the obtaining of the evidence. The authorities support the view expressed by Doyle CJ in Question of Law Reserved . If the public policy discretion is confined in the manner described by Doyle CJ in the passage earlier cited, for the reasons later discussed the interests of the accused are protected because circumstances such as those found in French v Scarman can fairly be encompassed within the ambit of a general unfairness discretion which has as its primary focus considerations of unfairness to the accused.
However, in Police v Hall Doyle CJ qualified the criticism of French v Scarman made in Lobban and, in so doing, recognised that the Bunning v Cross police impropriety discretion was applicable to police conduct which caused a defendant not to obtain or analyse a blood sample:[30]
Nevertheless … I have reconsidered the comments made in Lobban about the decision in French v Scarman. By agreeing with the reasons of Martin J I agreed with those observations.
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.
The decision in French v Scarman is based on a conclusion that the relevant safeguard (the obligation on the police officer to do all things necessary to facilitate the taking of a sample of blood, upon a request that a sample be taken) was, as King CJ said (at 338):
… so closely connected with the obligation to submit to the breath test that non-observance by the police of the safeguard is a sufficient foundation for the discretion.
King CJ recognised that in one sense the evidence provided by the breath analysis was not unlawfully or unfairly obtained, but as the passage just cited indicates, took the view that the connection between the obtaining of the evidence and the safeguard was so close that the discretion arose. That is how Chernov JA in Director of Public Prosecutions v Moore approached the matter in the passage that I set out above.
[30] (2006) 95 SASR 482 at [40]-[42].
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. As a result, the position put by Doyle CJ in Police v Hall remains authoritative. I would respectfully overrule the decision in Police v Erwin.
It exceeds the proper bounds of judicial power to superimpose over the legislative scheme provided by the RTA for the summary prosecution of drink driving offences, with the aid of statutory proofs, subjective discretions, lacking any statutory foundation, to deny the prosecution those very statutory aids. It is, of course, simply not to the point to observe that other means of proof might have been available to the prosecution. The statutory facilitation of proof of this serious traffic offence is Parliament’s response to the notorious difficulties which beset the common law means of proof. 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.[31]
[31] (1998) 70 SASR 429 at 446.
To stay this prosecution would open up a pandora’s box of mischief. Doyle CJ remarked on the problematic nature of an unduly vague notion of general unfairness in a s 47B RTA prosecution in Police v Hall:[32]
There might be a number of reasons why a driver who has obtained an approved blood test kit does not have a sample of blood taken that could possibly be used to rebut the statutory presumption. The driver might not be able to find a qualified person at all, or until the time that has elapsed makes the sample useless, as happened here. The person who is asked to take the sample of blood might charge a fee that the driver is unable to meet. Something might happen to the driver on his way to find a qualified person that prevents the driver getting there, or delays him. All of these things might happen through no fault of the driver. In each such case the possibility of challenging the result of the breath analysis will be lost.
[32] (2006) 95 SASR 482 at [57]-[60].
The motorist who wishes to avail himself or herself of the limited statutory window to adduce rebuttal evidence of a kind which is strictly circumscribed by s 47K(1a) RTA and Regulation 11 has the responsibility to ensure that the evidence is obtained in accordance with the regulations. If the prosecution of the respondent is stayed because of the failure of a doctor who is, in effect, his agent to take the samples in a way which procures admissible evidence for the defence, what would the result be in cases such as the following:
·the motorist negligently breaks or loses the ampoules;
·the motorist, by unavoidable accident, breaks the ampoules;
·a courier taking the ampoules to an analyst breaks, or loses, the ampoules;
·the analyst breaks or loses the ampoules;
·the analyst incorrectly performs the analysis.
Subjective views may be expressed one way or another on the outcome in any of the scenarios I have adumbrated. 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. Perhaps even more importantly, there would appear to be no sound basis to distinguish between any of those circumstances and the motorist who is too anaemic, busy, or upset to have a blood sample taken and who, it is accepted, cannot, on any of those grounds, allege forensic unfairness.
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 a s 47B RTA trial. When s 47B RTA is read together with s 47K RTA the offence, in substance, is not an offence of driving with a prescribed concentration of alcohol, but is one of driving within a period of two hours before a breath analysis, conducted in accordance with s 47K RTA, produces a reading of more than the prescribed concentration of alcohol, but with a defence which can be raised by evidence of an analysis of a blood sample taken in accordance with Regulation 11. The failure to raise the defence does not impinge on the fairness of the determination of the primary prosecution case.
I acknowledge that there may be some very limited circumstances which would render a prosecution of a defendant who is unable to adduce evidence of a blood analysis an abuse. If it were shown, for example, that the prosecution had strong reason to doubt the accuracy of a breath analysis instrument because of the subsequent discovery of a latent fault in a breath analysis instrument or the adoption of bad operating practices, and nonetheless proceeded with a prosecution, a different result might ensue. Such evidence might, either alone or together with the inability to obtain a blood sample analysis, provide a foundation for a favourable exercise of the discretion to stay the proceedings as an abuse of process. The stay of the prosecution in such circumstances would be grounded in the prosecution’s bad faith in engaging the criminal jurisdiction of the court intending, or being reckless as to, the use of statutory presumptions, on flawed readings, to secure the imposition of a criminal sanction against a motorist who is shown by credible other evidence to have been unlikely to have exceeded the prescribed concentration of alcohol.
Conclusion
In summary I would allow the appeal for the following reasons. First Regulation 11 does not confer a procedural right to adduce evidence of a blood sample analysis. Secondly, the failure to obtain a sample was not caused by any police misconduct. Thirdly, the police carry no responsibility for the respondent’s choice of medical practitioner or that practitioner’s failure to obtain adequate samples. Fourthly, there is no evidence casting doubt on the breath analysis. Finally, the trial of the elements which the police were required to prove pursuant to s 47K RTA has not been compromised in any relevant way.
I would set aside the order of the Judge and order instead that the appeal against the Magistrate’s order of dismissal be allowed. I would set aside the order of dismissal made in the Magistrates Court. I would direct that a conviction be recorded on the complaint and remit the matter to the Magistrates Court for sentence.
GRAY J:
This appeal by the police raises an issue as to the circumstances in which a court may exclude prosecution evidence. The particular question for this Court is whether the general unfairness discretion was enlivened in the circumstances of the trial such that the evidence of breath analysis undertaken was properly excluded.
The defendant and respondent, Jason Andrew Dunstall, was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol in breach of section 47B(1)(a) of the Road Traffic Act 1961 (SA). At about 12.30 am on 8 January 2012, the defendant was driving on Angel Avenue, Seaford, when he was stopped by a mobile traffic patrol and required to submit to an alcotest. The test returned a positive result. The defendant was taken to a police station and subjected to a breath analysis test at about 12.55 am. The result recorded was a concentration of 0.155 grams of alcohol in 100 millilitres of blood.
The defendant was provided with a blood test kit and, at about 1.04 am, upon his request, the police drove the defendant to the Noarlunga Hospital. A medical practitioner, Dr Lauren Klima, took two blood samples between about 1.18 am and 2.24 am. Both samples were submitted for analysis for alcohol – one by the police and the other by the defendant.
The sample taken by the police was submitted for analysis in a timely fashion. The Forensic Science Centre in Adelaide reported that the blood was denatured and unsuitable for analysis for alcohol. The defendant kept his sample in a refrigerator. On 16 August 2012, he submitted his sample for analysis. The Forensic Science Centre reported that the blood was denatured and was thus unsuitable for analysis for alcohol.
The defendant gave the following evidence at the trial about what happened at the time of the taking of the blood sample:
Q.During the taking of that blood sample did you have any discussions with Ms Klima.
A.Only that she took blood from both arms and seemed to have trouble getting the blood and said that that would be enough.
Q.When you say ‘Seemed to have trouble’ what did you observe.
A.Well she took blood from one arm and the – she just couldn’t seem to get it into the needle or something, so she put that in that vial and took blood from the other one and put it in the other vial and said ‘That will do’.
Q.She said those words.
A.Yeah.
Q.From that you took that there wasn’t enough blood.
A.Yes, yes.
At trial, the defendant called expert evidence to the effect that the most likely cause of the denaturing of both blood samples was the taking of insufficient blood. There was no submission at trial or on appeal that the circumstances raised any suggestion that the blood kit was defective. Dr Klima was called at trial, but had no recollection of the events surrounding the taking of the blood samples.
It is relevant to observe that, had the prosecution chosen to do so, they could have attempted to make out the elements of the offence without the use of the evidentiary statutory aids. No attempt was made to do so. It is also relevant to observe that no complaint had been laid under section 47 of the Road Traffic Act that the defendant was driving while so much under the influence of intoxicating liquor as to be incapable of exercising effective control of his vehicle.
The Magistrate dismissed the complaint. The Magistrate excluded the evidence of the breath analysis certificate in the exercise of the unfairness discretion. He did so having regard to the fact that through no failure of his own, the defendant had been deprived of the opportunity to test the breath analysis evidence. In the Magistrate’s view, the defendant was unable to obtain a fair trial owing to the loss of the opportunity to challenge the blood alcohol reading alleged.
An appeal to a single Judge of the Supreme Court by the police was dismissed.[33] The Judge, in her reasons, reviewed earlier decisions of this Court and concluded:
For these reasons I consider that successive decisions in this Court have left open the door as to whether the residual discretion does have any application in circumstances like the present case. It is to that issue that I now turn.
…
It is my view that the circumstances which arose in this case did provide a proper basis for the exercise of the residual discretion to exclude the prosecution evidence on the basis of unfairness, first, because the failure of the medical practitioner to comply with reg 11(c) effectively placed the [defendant] in the same position as if no blood sample had ever been taken, second, because the [defendant] did do everything in his power to exercise the statutory rights which were given to him, and thirdly, there is in fact nothing else he could have done.
…
For these reasons I consider there was scope for the exercise of the discretion in favour of the [defendant] in this case. …
[33] Police v Dunstall [2013] SASC 188.
The Appeal to the Full Court
The police submitted that no unfairness would arise from the admission of the evidence of breath analysis as no perceptible risk of a miscarriage of justice would ensue. The Solicitor-General, appearing for the police on the appeal, argued that the Magistrate misunderstood the legal principles applicable to the determination of whether or not any trial would be unfair by reason of the defendant’s inability to challenge the results of the breath analysis as a consequence of the denaturing of the blood samples. It was said that it was a mistake to categorise the circumstances as giving rise to the exercise of the unfairness discretion in favour of the defendant. The Magistrate’s decision to do so was said to be at odds with the determination of the Full Court that relevantly similar circumstances, while unfair in the most general sense of that word, did not constitute relevant unfairness in the specific sense required to render the trial unfair.
In Duke v The Queen,[72] Brennan CJ spoke of the impropriety having a material effect upon the person who made the confession. He went on to explain that any impropriety in procuring a confession must be evaluated in all the circumstances of the case but, in his view, its admissibility did not necessarily turn upon its reliability. He referred to the decision of Mason CJ, Dawson, Toohey and Gaudron JJ in Foster v The Queen,[73] in which their Honours observed that the focus of the unfairness discretion will tend to be on the effect of the unlawful conduct on the particular accused, whereas the public policy discretion has its focus on more general questions relating to the conduct of law enforcement bodies. It was acknowledged that there can be an overlap between those discretions.
[72] (1989) 180 CLR 508.
[73] (1993) 67 ALJR 550.
In Swaffield, Toohey, Gaudron and Gummow JJ reviewed the developing jurisprudence and made the following observations:[74]
The term “unfairness” necessarily lacks precision; it involves an evaluation of circumstances. But one thing is clear:
“[T]he question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.”
Unfairness then relates to the right of an accused to a fair trial; in that situation the unfairness discretion overlaps with the power or discretion to reject evidence which is more prejudicial than probative, each looking to the risk that an accused may be improperly convicted. While unreliability may be a touchstone of unfairness, it has been said not to be the sole touchstone. It may be, for instance, that no confession might have been made at all, had the police investigation been properly conducted. And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.
[74] (1998) 192 CLR 159 at [53]-[54] and [66].
...
It has been said, rightly, that fairness is a vague concept. It has also been said that the application of the unfairness discretion is uncertain because courts have failed to define the policy behind the discretion or considerations relevant to it. This, it is argued, makes satisfactory appellate review of the discretion difficult. The criticism has force though the very nature of the concept inhibits great precision. An approach to unfairness which focuses on whether reception of the evidence in question may have jeopardised the accused’s right to a fair trial because the statement was obtained in circumstances affecting its reliability does admit of application by a trial judge and review on appeal. However, the unfairness discretion would achieve nothing beyond what is already required by the general law if it were concerned solely to ensure a fair trial.
[Citations omitted].
They observed that an important aspect of the discretion is to consider the reliability or otherwise of the evidence. However, although reliability or unreliability is an important factor, it was not an exclusive factor. Their Honours said:[75]
Unreliability is an important aspect of the unfairness discretion but it is not exclusive. As mentioned earlier, the purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence. ...
[75] (1998) 192 CLR 159 at[78].
The question of whether there is unfairness to a defendant and whether a defendant has suffered a forensic disadvantage will necessarily depend on the analysis of the facts in each case. Their Honours recognised that reliability was not the only factor, and that the inability of an accused to have his version of events corroborated could be regarded as a forensic disadvantage.[76]
[76] See Foster v The Queen (1993) 67 ALJR 550.
In Swaffield, the Court recognised that evidence may be excluded under the general unfairness discretion if a defendant is placed at a significant forensic disadvantage.
The South Australian decision of R v Lobban,[77] considered the development of the law and, in particular, dealt with the residual general unfairness discretion.
[77] (2000) 77 SASR 24.
There has been considerable commentary about the application of the unfairness discretion in circumstances in which there has been a failure to comply with provisions of the Act, or where there has been an inability on the part of a defendant to obtain samples or have samples of his or her blood tested in accordance with the Act and Regulations.
The threshold question to commence any discussion is the scope of the unfairness discretion, and whether it has application in circumstances such as arise in this case. In Lobban, the defendant was charged with possession of cannabis for sale, following the seizure of material from his motor car and from his residence. The material was analysed and certificates of analysis were prepared which identified the material as cannabis. Later, most of the cannabis was destroyed and no sample was kept for evidentiary purposes, as was required by s 52A of the Controlled Substances Act 1984 (SA). It was conceded that the destruction of the cannabis was unlawful. It was argued at trial that any evidence that tended to identify the seized material as cannabis should be excluded because of the unlawful destruction of the material.
Martin J, with whom Doyle CJ and Bleby J agreed, commenced by discussing what he referred to as the “public policy discretion”, which was articulated in the decision of Bunning v Cross.[78]He observed that the Bunning v Cross discretion had its roots in a statement of Barwick CJ in R v Ireland,[79] in which the Chief Justice spoke of evidence ascertained or procured by means of an unlawful or unfair act. That principle has been developed in a number of authorities.[80] Martin J observed that a court can exclude evidence, other than confessional evidence, in the exercise of that discretion. He stated that the discretion does not arise if the evidence in question was not obtained by unlawful or improper means. The underlying rationale for the discretion is to prevent the curial advantage that would be obtained from the use of the evidence which had been obtained by unlawful or improper means. The Court should not be seen to appear to approve the legality or impropriety by which the evidence has been obtained. He concluded that the discretion arises because allowing the use of the evidence obtained illegally or improperly may appear to condone that conduct and may compromise the Court’s commitment to the upholding of the law.
[78] (1978) 141 CLR 54.
[79] (1970) 126 CLR 321.
[80] See Ridgeway v The Queen (1995) 184 CLR 19; Foster v The Queen (1993) 67 ALJR 550; R v Swaffield (1998) 192 CLR 159.
Martin J observed that a number of decisions had blurred the distinction between the public policy discretion and the unfairness discretion. He went on to consider the unfairness discretion, which is a general discretion to exclude evidence which focuses upon the considerations of unfairness to the accused. The question is whether the unfairness to the accused would result in a trial being unfair.
Martin J observed that Swaffield’s case confirmed that there was an overall discretion to exclude confessional evidence, if to include it would be unfair to the accused. The unfairness discretion to exclude confessional evidence is not confined to unlawfully or improperly obtained evidence. That discretion focuses upon the effect any conduct has had on the particular accused, unlike the public policy discretion which has a wider ambit and focuses upon the conduct of the police or law enforcement agency.
The unfairness discretion focuses on whether it would be unfair to a defendant in the case of confessional evidence, where there has been no fault on the part of the police. For example, if it were established that the defendant suffered from a mental condition and was, therefore, unable to understand the caution administered by a police officer and was unable to make an informed decision as to whether to answer questions, that may give rise to the exclusion of the evidence of the confession. The Court might conclude that it would be unfair in the sense that the confession may be unreliable or that a person may have not adequately understood their rights, even though there was no misconduct or unlawful conduct on the part of the police.
Martin J considered that there was a further head of discretion to exclude admissible evidence which is based upon unfairness to an accused, and which he considered overlaps with the unfairness discretion concerned with confessional evidence. He considered it is a separate discretion to exclude admissible evidence. He concluded that a discretion exists to exclude non-confessional evidence on the grounds that to receive it would be unfair to an accused in the sense that the trial would be unfair.[81] He observed that the existence of this discretion is not dependent upon the conduct of law enforcement authorities. It is based on the principle that an accused person is entitled to a fair trial, and it is the duty of the Court to attempt to ensure that the trial is fair.
[81] See R v Lobban (2000) 77 SASR 24 at [77].
Doyle CJ, who agreed with the reasons of Martin J, observed that a mere failure to comply with or satisfy a statutory requirement connected with the obtaining of evidence to be used by the prosecution does not, of itself, amount to unfairness. He considered that the scope for the exercise of the general unfairness discretion will be limited when the matters relied upon by a 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, he did not state when it would or would not be appropriate for the Court to exercise the discretion to exclude evidence. Bleby J agreed with Martin J.
In Police v Erwin,[82] Ms Erwin was charged with driving a motor vehicle whilst there was present in her blood alcohol exceeding the prescribed limit. Ms Erwin was breathalysed at a breath testing station. The alcotest showed a concentration of alcohol in her blood of 0.179. In accordance with the Act, the police provided her with a blood test kit and correctly advised her to promptly attend at a hospital or a medical practitioner. She was advised that she would be provided with two samples of her blood, one to be retained by her and the other to be analysed by Forensic Science SA.
[82] (1997) 26 MVR 360.
She attended the Royal Adelaide Hospital where a blood sample was taken, but she was never given a sample as required by the Act. The only rational inference to be drawn from the facts were that the medical practitioner erroneously forwarded Ms Erwin’s sample to the police, rather than providing it to her. The Magistrate concluded that there had been a failure to deliver her sample to her in accordance with the Act and Regulations. Relying on Bunning v Cross,[83] he exercised his discretion and excluded the evidence of the result of the breath analysis.
[83] (1978) 141 CLR 54.
The police appealed and argued that the Magistrate was in error in purporting to use the Bunning v Cross discretion, as that discretion only arose where evidence was unlawfully or improperly obtained. Nyland J concluded that the clear intention of the legislation is for medical practitioners to strictly adhere to the provisions of the legislation which require the delivery of the blood samples to the person from whom the sample was taken, as well as to a member of the police force. She concluded that the circumstances of the case gave rise to a Bunning v Cross discretion to exclude the evidence of the breath analysis, and she dismissed the appeal having determined that the Magistrate’s discretion did not miscarry. She did not limit the exercise of the discretion to the failure of a police officer to comply with the Act. As in the case of Scarman, the defendant was deprived of the opportunity of independently having tested the blood sample.
In Lobban, Doyle CJ discussed the decision in Erwin. He said that the Bunning v Cross discretion does not apply in the circumstances outlined in Erwin’s case but, nevertheless, there did exist a general unfairness discretion, and it was that discretion that had been exercised. Doyle CJ said:[84]
In the light of that, I should add that I remain of the view that in Police v Erwin (unreported, S6375, 2 October 1975), 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 in these proceedings.
[84] R v Lobban (2000) 77 SASR 24 at [3].
A number of decisions subsequently dealt with the exercise of discretion in drink driving cases. Those decisions led to the convening of a five judge court in Police v Hall.[85]
[85] (2006) 95 SASR 482.
Mr Hall was involved in a minor motor vehicle collision. He was required to submit to an alcotest at the scene. The test was positive. Mr Hall was taken to the Sturt Police Station where he was subjected to a breath analysis test. The testing commenced some 48 minutes after the accident and concluded approximately nine minutes later, with the result being a reading of 0.081. Mr Hall was then provided with written notice and oral advice that he could obtain a blood test. He was provided with a blood test kit. Mr Hall attended at the Royal Adelaide Hospital, about two and a half hours after the accident and approximately one hour after he had left the police station. Approximately four hours and 20 minutes later, he was seen by a medical practitioner. Blood was taken from him about four and a half hours after he had arrived at the hospital. The blood samples were tested and the analysis detected no alcohol in Mr Hall’s blood. At the trial, expert evidence established that Mr Hall’s blood alcohol concentration would have reached zero approximately one hour before the blood was taken by the doctor.
The Chief Magistrate concluded that Mr Hall had attended the hospital promptly and that the delay in the taking of a sample of blood had been occasioned by delays within the hospital system. The Chief Magistrate concluded that, by attending promptly at the hospital, Mr Hall was hopeful of obtaining a blood sample that would have permitted him to challenge the breath analysis result. The Chief Magistrate concluded that the evidence had established that Mr Hall had done all that he could have done to secure the evidence that he hoped would be available to him. The Chief Magistrate concluded that it would be unfair to admit into evidence the result of the alcotest and the breath analysis test.
A primary argument of the then Solicitor-General, who appeared for the appellant in Hall, was that Lobban was wrongly decided and that the general unfairness discretion to which Martin J referred was not in accord with authority. Doyle CJ, Bleby, Nyland and Gray JJ rejected that argument and reaffirmed the existence of the residual general unfairness discretion referred to in Lobban. Doyle CJ said:[86]
I am not persuaded that the decision in Lobban should be reconsidered. I refer here to the two propositions referred to earlier.
There is no suggestion that the case was decided in ignorance of any relevant authorities. It has not been demonstrated that the decision is inconsistent with any binding authority. In particular, inconsistency with the reasons of the High Court in R v Swaffield (1998) 192 CLR 159 has not been demonstrated. The decision in Lobban is not inconsistent with a line of persuasive authority.
Nor am I persuaded that the decision in Lobban is wrong, let alone plainly wrong. The correct delineation of the scope of the various discretions available to a court conducting a criminal trial is a matter of some difficulty and of some complexity. There is some force in some of the points made by Mr Kourakis. I acknowledge also the force of the points made by the majority judges in Director of Public Prosecutions v Moore about the scope of the Bunning v Cross discretion. But, while recognising that views can legitimately differ on how the line should be drawn as between the Bunning v Cross discretion and the unfairness discretion, I am not persuaded that the court erred in Lobban, let alone that it is plainly wrong.
[86] (2006) 95 SASR 482 at [35]-[37].
Bleby J said:[87]
By concurring with Martin J in R v Lobban, I agreed with his identification and his description of the scope of a general unfairness discretion applicable to the admissibility of all evidence. This extended beyond the unfairness discretion identified by the majority of the High Court in R v Swaffield applicable to confessional evidence. Largely for reasons identified by the Chief Justice, I am not persuaded that Lobban should be revisited for the purpose of limiting the scope of that general unfairness discretion. Rather, its expression in Lobban gains support from the decision of the Victorian Court of Appeal in Director of Public Prosecutions v Moore. (Citations omitted).
[87] (2006) 95 SASR 482 at [94].
Doyle CJ, whilst acknowledging that the residual general unfairness discretion does exist, concluded that the fact that there was a delay in the taking of a blood sample without fault on the part of Mr Hall did not make the use of the result of the breath analysis unfair at a later trial. He concluded that the statutory scheme did not create an enforceable right of a defendant to have his blood sample taken and analysed. He accepted that it may be perceived that that creates unfairness, but unfairness in the general sense is not unfairness in the relevant sense. He accepted that the application of the unfairness discretion is not dependent upon the conduct of the law enforcement authorities, but that the scope for the exercise of that discretion will be limited if the circumstances do not raise as an issue either the reliability of the evidence in question, or some kind of misconduct by the law enforcement authorities.[88] He concluded that the Magistrate erred in exercising his discretion to exclude the evidence.
[88] Police v Hall (2006) 95 SASR 482 at [77].
Bleby J concluded that the discretion had miscarried. He considered that, because the defendant had a responsibility and a control over the process to have his blood sample taken within the prescribed time, that was a factor which was relevant. He observed that the defendant chose the facility from which to have the blood sample taken and, if those at the facility did not take the sample within the required time, that ultimately did not make the trial unfair. He was concerned that, if that were the case, the fairness of the trial would be dictated by the defendant’s choice of medical practitioner or outpatient clinic and that, therefore, the failure of the doctor to promptly take a sample of blood was not a basis upon which the unfairness discretion should be exercised. He observed that the defendant had the same opportunity to obtain rebuttal evidence as anyone else who is required to undertake a breath analysis and, therefore, it was not a case in which the discretion should be exercised. Vanstone J agreed with the reasons of the Chief Justice.
Gray J, with whom Nyland J agreed, discussed the development of the common law discretion commencing with a discussion of R v Ireland,[89] Bunning v Cross,[90] Harriman v The Queen,[91] and Dietrich v The Queen.[92] He concluded that the Chief Magistrate had a discretion to exclude otherwise admissible evidence, which could be enlivened by circumstances of unfairness or by reason of matters of public policy, or by the combination of both. Gray J held a contrary view to the majority. He considered that the statute had provided a safeguard for a defendant to rebut the presumption created by the statute. That presumption had been rendered nugatory through no fault of the defendant and he had been, therefore, denied the ability to test the reliability of the breath analysis. He said:[93]
This is a case where, for the reasons expressed in Evans, Shearer and Singh, there was an artificiality – the presumed accuracy of a breath analysis reading. Parliament itself has recognised the superiority of a blood test. This was a statutory safeguard. This was the check provided to safeguard the citizen. This was the check, the maintenance of which has been described as a matter of paramount concern for the courts. In the present case, on the unchallenged factual findings of the Chief Magistrate, the respondent lost his statutory opportunity to have a blood test. He lost that opportunity through no fault of his own, because the test could not be undertaken in a timely way due to stretched public hospital resources. The respondent was unaware of these problems. The problem is not isolated. It arises regularly on an ongoing basis. Parliament envisaged that a public hospital would be a place at which a driver could reasonably expect a test to be taken in a timely way.
Once it is accepted that the Chief Magistrate had a general discretion to exclude the evidence of the breath analysis, the question becomes whether in the circumstances it could be said that the exercise of the discretion miscarried. No error of principle has been identified. The magistrate has not been shown to have had regard to any immaterial consideration or to have failed to have regard to any material consideration. The exercise of his discretion to exclude the evidence was one that was open to him and should not be interfered with by this Court.
[89] (1970) 126 CLR 321.
[90] (1978) 141 CLR 54.
[91] (1989) 167 CLR 590.
[92] (1992) 177 CLR 292.
[93] Police v Hall (2006) 95 SASR 482 at [211] – [212].
Gray J’s approach did not centre on the accuracy, or otherwise, of the breath analysis. He was of the view, with which I agree, that the statutory scheme provided a defendant with a right to test the accuracy of the breath analysis by having his blood taken and tested. If, through no fault of the defendant, he or she is deprived of exercising that right, that is a sufficient basis to enliven the residual general unfairness discretion.
The Solicitor-General submits that the general unfairness discretion has been misapplied by the Magistrate. He submits that the question which must be asked is whether there is a perceptible risk of a miscarriage of justice deriving from the admission of the evidence.
In developing the argument, the Solicitor-General submits that the general notion of unfairness is not the test. Rather, the correct question is: has there been a forensic disadvantage in the admission of the breath analysis evidence? He submits that no such forensic disadvantage can be discerned where the defendant is denied, by reason of error of a doctor, the ability to obtain evidence of his blood alcohol concentration that may or may not give rise to a conclusion, on the balance of probabilities, that the breath analysis reading is exaggerated.
The Solicitor-General submits that if the correct question is asked, then the admission of the evidence does not give rise to a perceptible risk of a miscarriage of justice. The Solicitor‑General linked the perceptible risk of a miscarriage of justice to a forensic disadvantage which he accepts means the ability to contest forensic disadvantage. He submits that the defendant in this case was deprived of the possibility of challenging what is presumed to be reliable evidence of the concentration of alcohol in his blood. The Solicitor-General sought to rationalise the judgment of King CJ in Scarman on the ground that the police conduct was pivotal to the reasoning of King CJ. I reject that submission.
In my view, the submission of the Solicitor-General is circular. He starts from the position that the evidence of the breath analysis is admissible, and the presumptions in s 47K apply, therefore the evidence is reliable. He contends that the defendant has not been forensically disadvantaged, and the unfairness discretion is not enlivened because there is no forensic unfairness.
In my view, the statutory scheme gives a defendant a limited ability to test the accuracy of a breathalyser analysis. If there is a failure, through no fault or conduct of the defendant, to exercise his right then that is a proper basis to enliven the unfairness discretion as the trial will be unfair because the defendant is deprived of that right. The analysis, as submitted by the Solicitor-General, amounts to circular reasoning, because it assumes the accuracy of the breath analysis. The statutory scheme is based upon a recognition that the breath analysis is not necessarily the most accurate method of analysing the level of alcohol in a person’s blood.
The facts in Hall contrasted with the facts in Erwin demonstrate how the balancing of the public policy considerations referred to in Ireland can lead to different results. In Lobban, Doyle CJ observed that in Erwin the general unfairness discretion arose. He did not consider it necessary to decide whether it was appropriate to exercise the discretion to exclude the evidence in that case. Nevertheless, in Erwin, the rationale of the decision was that the defendant had been deprived of the opportunity to independently test the sample.
In this case, the defendant had done all that could reasonably be required of him to avail himself of the opportunity to have the breath analysis reading tested.
The Act and Regulations provide a procedure which is required to be followed if a defendant seeks a blood test. If that procedure is not followed and results in the defendant being unable to avail himself of the safeguard provided by the Act, then the discretion is enlivened. In considering whether it is to be exercised, the Court will have regard to the conduct of the defendant. If the defendant has done all that could reasonably be expected of him or her and is deprived of the opportunity to rebut the presumption, that is a significant fact in the Court’s consideration of the discretion.
If the conduct of the defendant is such as to deliberately or by negligence cause a sample not to be taken promptly, or for that sample to be denatured, or if the defendant acts in an unreasonable way, then that would be a factor which may result in the Court refusing to exclude evidence which triggers the application of the presumption.
The effect of excluding the evidence sought to be established by use of the presumptions contained in s 47K does not result in the prosecution necessarily failing. It simply cannot rely on the presumption. It is able to prove its case, but simply cannot rely on the presumption and the reversal of the onus of proof. In circumstances where a defendant is deprived of the common law right to have a charge proved against him beyond reasonable doubt, and where the prosecution can establish a case against a defendant by use of a number of presumptions which, in effect, reverse the onus of proof, then a failure to avail a defendant of safeguards recognised by the legislature may result in a court excluding evidence which relies upon those presumptions to establish the charge.
It was open to the Magistrate to exercise his discretion to exclude the evidence. I agree that he was correct in exercising his discretion in the manner in which he did. I agree with the Judge who heard the matter on appeal at first instance that the discretion did not miscarry.
I would dismiss the appeal.
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