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 188Magistrates 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 sample of his blood taken at a hospital. Both samples of blood taken were found to have denatured and were unsuitable for analysis. At trial the Magistrate dismissed the complaint on the basis that the respondent was unable to obtain a fair trial owing to the loss of the opportunity for him to challenge the blood alcohol reading alleged against him.
The Magistrate reasoned that the respondent was deprived through no fault of his own of a chance to challenge the breath analysis reading and that this fact necessarily led to the conclusion that the trial would be unfair in the relevant sense.
In reasoning to that conclusion the Magistrate relied on a statement by Bleby J in Parker v Police:[1]
It was always open to the defendant in this case to have her sample tested. She chose, perhaps on bad advice from friends, not to do so. She deprived herself of the opportunity of rebutting the presumption. Of course, if, despite careful handling and storage, her part of the sample had also denatured, that might have led to other inferences being drawn about the adequacy of the test kit, and to a consideration as to whether, in those circumstances, she would be denied a fair trial. However, that is not this case.
[1] (2002) 83 SASR 267 at [29].
On appeal the appellant contends that the Magistrate misunderstood or misapplied the legal principles applicable to the determination of whether or not any trial would be unfair by reason of the respondent’s inability to challenge the results of the breath analysis by reason of the denaturing of the blood samples.
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
I did not understand the appellant to be mounting any challenge to the finding made by the Magistrate on the balance of probabilities, that in the circumstances, the taking of the blood did not comply with reg 11(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (“the Regulations”). For convenience that regulation is set out in full below:
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.
Before turning to the appellant’s main contention, that the Magistrate misunderstood or misapplied the relevant legal principles, I shall discuss briefly the decision in Parker on which the Magistrate placed reliance.
In Parker the facts were that on 5 May 2000 the defendant was required to submit to a breath analysis which recorded the presence of 0.127 grams of alcohol per 100 millilitres of blood. She exercised her right to have a blood test and on 9 May 2000 the police sample was analysed and found to be denatured. Upon receiving advice about the first blood sample the defendant subsequently disposed of her sample without ever having it tested. The reasons were not apparent and no finding about the cause of the denaturing was ever made.
The Magistrate declined to exercise the discretion to exclude the evidence of the breath analysis on the basis of unfairness because he found that the defendant had been given her sample and could have had it analysed but chose not to.
In upholding the Magistrate’s decision Bleby J made the remarks cited by the Magistrate.[2]
[2] See above at [4].
It is plain that the approach of Bleby J in Parker was predicated on the assumption that if the defendant had tested both samples and if both had been denatured that may have led to an inference about the adequacy of the blood test kit. Contrary to the Magistrate’s finding, that is not the case here. On the facts in this case it was proved on the balance of probabilities (and there was no challenge to that finding) that there was no problem with the blood test kit. The problem lay with the failure of the medical practitioner to comply with reg 11(c) of the Regulations. To that extent then, the Magistrate’s reliance on the observations of Bleby J in Parker, was misplaced, however for the reasons which follow I am not persuaded that the Magistrate’s ultimate conclusion was wrong.
The ratio of Parker is the same as Singh v Police,[3] an earlier decision of a single Judge, which the Court in Parker followed. In Singh Martin J determined that it was not appropriate to exercise the discretion to exclude the evidence of the breath analysis on the basis of unfairness, because the defendant had the opportunity to positively demonstrate the existence of unfairness or the realistic possibility that unfairness may exist by choosing to have his blood sample analysed and the results tendered in court.
[3] [2000] SASC 114.
In both Singh and Parker the defendant declined to take that course preferring to rely on the technical breaches of the relevant provisions of the Act and Regulations by the medical practitioner in each case. It is not surprising that in both cases the Court concluded there was no relevant unfairness as a consequence of the actions of the medical practitioner.
In so deciding the respective Courts were doing no more than applying the observations of Doyle CJ in R v Lobban[4] that something more than a mere failure to comply with a statutory requirement is required before the discretion should be exercised.
[4] (2000) 77 SASR 24.
I regard it as significant that in Singh Martin J relied on the comments of Doyle CJ in Lobban before concluding that “a defendant who is deprived of the opportunity of having a sample of blood taken is in a different position from [Singh]”.
I turn now to consider the appellant’s submission 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. In order to evaluate the appellant’s submission it is necessary to examine with some care the authorities referred to and relied on by the appellant. The most recent authority referred to is Police v Hall.[5]
[5] (2006) 95 SASR 482.
In Hall the motorist exercised his right to obtain a blood sample. Mr Hall attended promptly at a hospital but had to wait for a number of hours before a blood sample could be taken. The sample which was eventually taken upon analysis revealed that there was no alcohol in the blood. That result was not inconsistent with the results of the breath analysis which had been taken the previous evening at about 11.20 pm.
In Hall Doyle CJ discussed the circumstances in which the residual unfairness discretion identified by the Court in Lobban may fall to be exercised.
Doyle CJ (with whom Bleby and Vanstone JJ agreed, Nyland and Gray JJ dissenting) held that the absence of evidence of the result of an analysis of a sample of blood taken from a driver does not in itself 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. Nor can it be said that there is a perceptible risk of a miscarriage of justice were the court to act on the evidence which the Magistrate in that case excluded.
In the course of his reasons Doyle CJ explicitly acknowledged that the purpose of the unfairness discretion previously identified in Lobban is not limited to circumstances in which the police or law enforcement authorities act unlawfully, improperly or unfairly but can include those circumstances. He made the observation that the purpose of the unfairness discretion includes to protect the rights and privileges of a defendant and procedural rights. In this context Doyle CJ discussed the principles to be applied to the facts in Mr Hall’s case. Doyle CJ, in explicitly rejecting the need to reconsider the decision in Lobban, and in particular the scope of the residual discretion identified in that case, closely examined the nature of the suggested unfairness in the context of the facts in Mr Hall’s matter. His Honour concluded that no statutory safeguard had been denied to Mr Hall. All which could be said was that because of the delay in taking the sample the analysis could not assist the defence and whether an earlier sample would have yielded evidence to assist his defence could not be determined.
In the course of his reasons Doyle CJ postulated a number of circumstances which might result in a driver not having a blood sample taken which might otherwise be used to rebut the statutory presumption. He concluded:[6]
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.
[6] Police v Hall (2006) 95 SASR 482 at [58].
He then emphasised that in the kind of situation he had postulated “no procedural right of the driver has been infringed”. Ultimately he concluded that the facts of Mr Hall’s case fell within the principles enunciated by him in Lobban. Significantly in my view Doyle CJ concluded:[7]
If the delay in the taking of a sample of Mr Hall's blood had been the result of a failure by a member of the police force to comply with the requirements of s 47G(2a) of the RTA, the unfairness discretion might have been enlivened. If it was enlivened, that would be because of the implication of the member of the police force in the loss or denial of a possible safeguard provided by the RTA, and in the consequential production of a forensic disadvantage. But that is not the situation here, and such a case can be left to be considered if and when it arises, and in the light of all of the facts.
[7] Police v Hall (2006) 95 SASR 482 at [73].
Bleby J, who agreed with the reasons of Doyle CJ, discussed the obligation which arises on the part of a defendant if he or she wishes to take advantage of the legislative provisions to rebut the statutory presumption contained in s 47G of the Road Traffic Act. He said a defendant must take all reasonable steps to obtain the necessary evidence and even then the rebuttal evidence will only succeed if it demonstrates, on the balance of probabilities, that the breath analysis gave an exaggerated reading.
His Honour went on to say:[8]
[T]his Court has consistently upheld the exclusion of prosecution evidence where some irregularity has occurred on the part of police officers, either through non-compliance with their statutory obligations or through being instrumental in non-compliance by others, and where the defendant has thereby been denied the opportunity to have a blood analysis performed. However, failure by someone else not acting under police supervision to comply with the statutory procedures will not necessarily justify reliance on the general unfairness discretion to exclude evidence of the breath analysis. That is not to say that failure by someone else to comply with the statutory requirements will not amount to unfairness in the relevant sense. …
[footnotes omitted; emphasis added]
[8] Police v Hall (2006) 95 SASR 482 at [118].
Bleby J emphasised the shift between 1979 and the present time in responsibility for obtaining what is now the only evidence that may be used in rebuttal of the presumption contained in s 47G of the Road Traffic Act. The defendant has more control over the process. Bleby J concluded:[9]
The present legislative scheme contemplates that there may be all sorts of reasons why a suitable sample of blood may not be able to be obtained. The Chief Justice has identified some of them. Those reasons may have nothing to do with the conduct of law enforcement authorities or compliance with regulations by those to whom the taking and processing of blood samples is committed. They may also have nothing to do with the reliability of the evidence justifying the conviction. Where the defendant has greater control over the process which has failed for some reason, the less likely it is that the defendant will be able to engage the unfairness discretion to exclude proof of the offence.
[emphasis added]
[9] Police v Hall (2006) 95 SASR 482 at [120].
In concluding that the circumstances of Mr Hall’s case did not result in any relevant unfairness, Bleby J observed that Mr Hall had been provided with the same opportunity to obtain possible rebuttal evidence as anyone else required to undertake a breath analysis.
Vanstone J, who also agreed with Doyle CJ’s reasons, made some observations about the reach and effect of the reasons in Lobban. Vanstone J expressed the view that there is a real question whether Lobban did sketch the scope of the residual discretion too widely. In any event, consistent with the majority view, Vanstone J concluded that the discretion has a very limited role to play where the evidence sought to be excluded is real evidence.
Noting that the ambit of the circumstances enlivening the exclusionary discretion is not susceptible to precise definition and continues to evolve, Vanstone J nevertheless did not consider that the case provided a suitable factual context in which to attempt a wide-ranging elucidation of the discretion to exclude evidence in order to secure a fair trial.
In my view the facts of this case do provide a suitable vehicle to attempt to elucidate the precise ambit of the residual discretion identified in Lobban and acknowledged by all members of the Court (with the possible exception of Vanstone J) in Hall. I shall therefore return to the observations of Doyle CJ in Lobban, clarifying his earlier remarks in Police v Jervis.[10]
[10] (1998) 70 SASR 429.
The observations of Doyle CJ in Lobban are in my view significant:[11]
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 (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.
[11] R v Lobban (2000) 77 SASR 24 at [2]-[3].
In Police v Erwin[12] there was a failure on the part of the medical practitioner to comply with the Regulations insofar as there was a failure to give the defendant a blood sample. However in Erwin, unlike in this case, there was a blood sample given to the police and that blood sample had apparently been analysed however no certificate was tendered in evidence.
[12] (1997) 26 MVR 360.
In Police v Jervis[13] a similar error led to the analysis of one blood sample only because, again, the second sample was not given to the defendant by the medical practitioner as required by the Regulations. In this respect the facts in Jervis were not relevantly different to the facts in Erwin.
[13] (1998) 70 SASR 429.
In Lobban, Doyle CJ expressly confirmed that he was not in doubt about the correctness of the decision in Jervis. Doyle CJ did express the view that upon reconsideration the Judge in Erwin, while wrong to treat the facts in that case as engaging the Bunning v Cross[14] discretion, was nevertheless correct to conclude that the general unfairness discretion did arise for consideration.
[14] (1978) 141 CLR 54.
I consider it of significance that he failed to take the next step and conclude whether Erwin was ultimately rightly or wrongly decided. Doyle CJ simply said it was not necessary for him to consider whether the exercise of the discretion was or was not properly exercised in that case. I cannot think that his silence about that was inadvertent. In my view, his Honour was careful both in Lobban and in the later case of Hall to acknowledge the existence of a residual discretion which was not dependent on proof of some misconduct on the part of the police.
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.
For present purposes I consider that it is significant that the unfairness which arose in Hall did not involve any effective denial to Mr Hall of the statutory safeguards to be found in reg 11 of the Regulations. Mr Hall did obtain a blood sample which upon analysis did not reveal any alcohol in his blood. In this case, the respondent in being effectively denied the ability to analyse either sample has been denied the statutory safeguard to be found in reg 11(c). I can see no reason in principle why the failure of a medical practitioner to comply with the obligation to take a sufficient blood sample should not give rise to the exercise of the residual discretion in that contrary to the earlier case the respondent has been denied a procedural safeguard. In my view, the respondent here was in no different situation than if the doctor had refused to take the sample. Contrary to the position in Hall, the respondent here was not given the same opportunity to obtain possible rebuttal evidence as anyone else required to submit to a breath analysis.
During submissions on appeal, counsel for the appellant conceded that it would be difficult to imagine circumstances where the residual discretion would arise absent some circumstance which raised a question about the reliability and or accuracy of the breath analysis. In other words, as I understood the appellant’s argument, the circumstances which may give rise to the exercise of the residual discretion in a case involving the failure for one reason or another of a defendant to obtain a blood sample for analysis absent misconduct on the part of the police or the law enforcement authorities generally will never arise.
In making that concession the appellant was in effect submitting that the reasoning of Vanstone J in Hall is correct. However, on that particular point, Vanstone J was in the minority. The Court by majority has declined to limit the exercise of the general unfairness discretion only to matters which affect the reliability of the prosecution evidence or which involve some impropriety or misconduct or relevant failure on the part of the police and law enforcement authorities generally.
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.
In the end, although I consider that the Magistrate misunderstood the remarks of Bleby J in Parker, on which he relied, I am not prepared to say that his conclusion was wrong.
Before I conclude I should comment on the appellant’s submission that in this case there was some evidence in the matter which the Magistrate ought to have taken into account when considering whether there was any evidence which supported the breath analysis. The appellant referred to the respondent’s evidence at trial that he had been drinking at a hotel and did not intend to drive home that night. He only did so because ultimately he missed a bus. It was also suggested that a tick in the box on the certificate completed by the breath analysis operator which said “moderately affected” was significant.
I am not prepared to accept that the evidence pointed to by the appellant corroborates the results of the breath analysis. It would have been very easy to have given evidence of the observations of the respondent that night. There is a usual way of doing that, it was not done and I do not think it appropriate on appeal to draw conclusions from what amounts to no more than a tick in a box unexplained by the author.
For these reasons I consider there was scope for the exercise of the discretion in favour of the respondent in this case. If I am wrong about that and the circumstances in fact did not give rise to any proper basis to exercise the residual discretion in favour of the respondent, then, to borrow the language of Vanstone J in Hall, perhaps it is time for the Full Court to elucidate further the ambit of circumstances in which the residual discretion would ever arise in the context of s 47B(1) of the Act.
The appellant’s appeal is dismissed.
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