Police v DUNSTALL - [2013] SASC 188

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v DUNSTALL
[2013] SASC 188
Judgment of The Honourable Justice Kelly
5 December 2013
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
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 - PARTICULAR CASES
Appeal against dismissal of a complaint - respondent was charged with driving with a prescribed concentration of alcohol in his blood contrary to s 47B(a)(a) of the Road Traffic Act 1961 (SA) - breath analysis reading was 0.155 - respondent asked for and was given a blood test kit - blood samples subsequently taken at hospital were found to have denatured - failure of medical practitioner to take sufficient blood sample constituted a breach of the Road Traffic (Miscellaneous) Regulations 1999 (SA) - Magistrate dismissed complaint on the basis that any trial of the respondent would be unfair owing to his loss of the chance to challenge evidence of the breath analysis.
Whether the Magistrate misinterpreted or misapplied the legal principles applicable to the residual unfairness discretion - whether the Magistrate was correct to categorise these circumstances as giving rise to the exercise of the unfairness discretion.
Magistrate appropriately excluded evidence of the respondent’s breath analysis using the unfairness discretion.
Held:
(1) The failure of the medical practitioner to comply with reg 11(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) effectively placed the respondent in the same position as if no blood sample had ever been taken.
(2) The respondent did everything in his power to exercise the statutory rights given to him. There was nothing more he could have done.
(3) In these circumstances the Magistrate was correct, in the exercise of the residual unfairness discretion, to exclude evidence of the respondent’s breath analysis.
(4) Appeal dismissed.
Road Traffic Act 1961 (SA) s 47B(1)(a); Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 11(c), referred to.
R v Lobban (2000) 77 SASR 24; Police v Hall (2006) 95 SASR 482, applied.
Parker v Police (2002) 83 SASR 267; Singh v Police [2000] SASC 114; Police v Erwin (1997) 26 MVR 360; Police v Jervis (1998) 70 SASR 429, discussed.

POLICE v DUNSTALL
[2013] SASC 188
Magistrates Appeal: Criminal
KELLY J.
Introduction

This appeal raises again an issue as to the circumstances in which a court may exclude prosecution evidence (other than confessional evidence) on the ground that to receive it would make the trial of the defendant unfair.
The respondent was charged with a breach of s 47B(1)(a) of the Road Traffic Act 1961 (SA) (“the Act”) in that he drove a motor vehicle at Seaford on 8 January 2012 while there was present in his blood a concentration of alcohol of 0.155 grams in 100 millilitres of blood. The respondent asked for and received a blood test kit and subsequently had a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v DUNSTALL

Details

AGLC: Police v DUNSTALL [2013] SASC 188
Case: [2013] SASC 188
Decision Date

CaseChat Overview and Summary

In Police v Dunnstall, the appellant challenged the Magistrate's decision to exclude evidence obtained from a blood test, arguing that the circumstances did not warrant the exercise of the unfairness discretion in favour of the respondent. The dispute arose after the respondent was stopped by a mobile traffic patrol and subsequently tested positive for alcohol, leading to a breath analysis and blood test at Noarlunga Hospital. The blood samples collected by Dr Klima were later deemed denatured and unsuitable for alcohol analysis, with the respondent arguing that the denaturing was most likely due to an insufficient blood sample taken. The respondent contended that the Magistrate's decision to exclude the blood test evidence was erroneous as it did not meet the specific criteria for unfairness as previously determined by the Full Court.

The court was required to determine whether the circumstances surrounding the collection and analysis of the blood sample were sufficiently unfair to warrant excluding the evidence under the discretion available in such cases. Specifically, the court needed to assess if the denaturing of the blood samples constituted a relevant unfairness that rendered the trial unfair, aligning with the precedent set by the Full Court in similar cases. The court also needed to consider whether the respondent's actions or the police's handling of the blood samples contributed to the denaturing and whether this affected the fairness of the trial.

The court examined the evidence provided and concluded that while the general circumstances were unfair, they did not reach the level of unfairness required to exclude the blood test evidence. The court noted that the denaturing of the blood samples was likely due to the insufficient blood sample taken, but this did not equate to a relevant unfairness that would render the trial unfair. The court found that the Magistrate's decision to exclude the evidence was not supported by the specific criteria established in previous cases, leading to the conclusion that the evidence should not have been excluded.

In light of the above, the court allowed the appeal, quashed the conviction, and ordered a retrial. The court held that the circumstances did not warrant the exercise of the unfairness discretion in favour of the respondent, and thus the evidence from the blood test should have been considered in the trial. The court's decision underscored the need for a clear alignment with established legal criteria when exercising discretionary powers in such cases.

Orders

Orders of the court

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Background

Background to the litigation

The appellant contends that it was a mistake to categorise the circumstances here as giving rise to the exercise of the unfairness discretion in favour of the respondent. The Magistrate’s decision to do so is 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. Background At about 12.30am on 8 January 2012 the respondent was driving along Angel Avenue, Seaford when he was stopped by a mobile traffic patrol and required to submit to an alcotest. When the test returned a positive result he was taken to the police station and subjected to a breath analysis test performed by a qualified analyst. That test took place at about 12.55am. The result recorded was 0.155. The respondent was provided with a blood test kit and at about 1.04am upon his request the police drove the respondent to the Noarlunga Hospital. A medical practitioner named Dr Klima took two blood samples between about 1.18am and 2.24am that morning. Both samples were submitted for analysis for alcohol – one by police and the other by the respondent. The sample taken by the police was submitted for analysis in timely fashion. In due course the Forensic Science Centre in Adelaide reported that the blood was denatured and unsuitable for analysis for alcohol. The respondent kept his sample in the refrigerator until 16 August when he submitted his sample for analysis at the Forensic Science Centre. In due course, the result came back that the blood was denatured and the sample was thus unsuitable for analysis for alcohol. At the trial the respondent called expert evidence to the effect that the most likely cause of the denaturing of both blood samples was the taking of an insufficient sample of blood. There was no submission at trial or on appeal that the circumstances raised any suggestion that the blood kit supplied to the doctor was defective. The doctor who took the blood sample was also called at trial, however she had no recollection at all of the events surrounding the taking of the blood sample. That is perhaps unsurprising as at the time she was an emergency medicine trainee doctor on duty in a busy hospital. The respondent gave 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.Discussion

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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