Police v Dunstall

The appeal concerned a charge against the respondent, Jason Andrew Dunstall, for driving a motor vehicle with the prescribed concentration of alcohol in his blood, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). The respondent was stopped by police, provided a positive roadside alcotest, and subsequently underwent a breath analysis which indicated a blood alcohol concentration of 0.155 grams of alcohol in 100 millilitres of blood. The appeal was brought by the police to the Supreme Court of South Australia, with Kourakis CJ, Gray and Sulan JJ presiding.

The central legal issue before the court was whether the general discretion to exclude prosecution evidence on the grounds of unfairness was enlivened in the circumstances of the trial, thereby justifying the exclusion of the breath analysis evidence. This involved considering the application and effect of section 47K of the Road Traffic Act 1961, which provides for the admissibility and presumptive proof of breath analysis results, and the limited circumstances under which such evidence could be rebutted or proceedings stayed.

The Court allowed the appeal, setting aside the order of dismissal made in the Magistrates Court and directing that a conviction be recorded. The reasoning was that Regulation 11 did not confer a procedural right to adduce evidence of a blood sample analysis, and the failure to obtain a blood sample was not attributable to police misconduct. Furthermore, the police bore no responsibility for the respondent's choice of medical practitioner or that practitioner's alleged failure to obtain adequate samples. Crucially, there was no evidence casting doubt on the accuracy of the breath analysis itself, and the trial of the elements required to be proven under section 47K RTA had not been compromised. The Court noted that while there might be very limited circumstances where a prosecution could be an abuse of process, such as where the prosecution acted in bad faith by relying on flawed readings due to known issues with an instrument or operating practices, those circumstances were not present in this case.