Police v Hall - [2006] SASC 281

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v HALL
[2006] SASC 281
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland, The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice Vanstone)
11 September 2006
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
The appellant appeals against the exclusion by a Magistrate of evidence of a breathalyser test relied upon by the appellant as evidence of the concentration of alcohol present in the respondent’s blood – the respondent was required to submit to a breathalyser test following a motor vehicle accident in which he was involved - respondent charged with having in his blood the prescribed concentration of alcohol contrary to s 47B of the Road Traffic Act 1961 (SA) – the respondent elected to proceed directly to a hospital in order that the concentration of alcohol present in his blood might be tested, a course of action contemplated by the legislation – a sample of blood was not taken by the hospital until after the time at which any alcohol present in his blood had been eliminated – the respondent argues that he has lost the only opportunity to rebut evidence of the breathalyser test which evidence, in the absence of a blood test administered after the breathalyser test, must be presumed accurate pursuant to s 47G(1) of the Road Traffic Act 1961 (SA) - whether the respondent will receive a fair trial if the court refrains from exercising its discretion to exclude evidence of the result of the breathalyser test – consideration of whether any relevant unfairness discretion can be enlivened by the circumstances of the case – the unfairness discretion requires the respondent to demonstrate that the trial itself would be unfair if the evidence of the breathalyser test was admitted – the fact that the only possible source of evidence to rebut the statutory presumption that the breathalyser test is accurate is now not available to the respondent does not of itself render the trial unfair - parliament provides for proof of guilt in this manner - appeal allowed.
Road Traffic Act 1961 (SA) s 47B, 47G(1), 47G(1a), 47G(1a)(a), 47G(1a)(b), 47G(2a)(a), 47G(2a)(b), 47G(2), 47DA, 47E, 47EB, 47K, 47F; Road Traffic Act Amendment Act 1979 (SA); Road Traffic Act Amendment Act (No 3) 1984 (SA); Road Traffic (Breath Analysis) Amendment Act 1993 (SA); Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994 (SA) s 4, s 5, s 6; Motor Vehicles Act 1959 (SA); Road Traffic (Miscellaneous) Regulations 1999 (SA); Australian Road Rules (1999) r 62(c); Motor Vehicles Act 1959 (SA) s 124A; Civil Liability Act 1936 (SA) s 46, referred to.
R v Lobban (2000) 77 SASR 24; Bunning v Cross (1978) 141 CLR 54; Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281; French v Scarman (1979) 20 SASR 333; Director of Public Prosecutions v Moore (2003) 6 VR 430; R v Swaffield (1998) 192 CLR 159; Pashalis v Workcover Corporation (1994) 63 SASR 71; Police v Jervis (1998) 70 SASR 429; R v Clarke (2003) 87 SASR 203; Rozenes v Beljajev [1995] 1 VR 533; Ujvary v Medwell (1985) 39 SASR 418; Pacillo v Hentschke (1988) 47 SASR 261; Police v Jelinek (1998) 200 LSJS 441; Police v Holland (1998) 70 SASR 429; Police v Erwin (1997) 26 MVR 360; Burton v Police (2004) 88 SASR 152; The Queen v Ireland (1970) 126 CLR 321; Driscoll v The Queen (1977) 137 CLR 517, discussed.
Van der Meer v The Queen (1988) 82 ALR 10; Harriman v The Queen (1989) 167 CLR 590; Dietrich v The Queen (1992) 177 CLR 292; NRC [1999] 3 VR 537; Shearer v Hills (1989) 51 SASR 243; Police v Henwood (2005) 92 SASR 15; Evans v Benson (1986) 46 SASR 317; Police v Shelmerdine (2000) 76 SASR 199; Tonkin v Police [2006] SASC 145; Singh v Police (2000) 31 MVR 279; Tann v Schild (1990) 54 SASR 523; Robin v Police (2002) 81 SASR 253; Parker v Police (2002) 81 SASR 240; 83 SASR 267 (FC), considered.

POLICE v HALL
[2006] SASC 281
Full Court: Doyle CJ, Nyland, Bleby, Gray and Vanstone JJ

DOYLE CJ: This appeal raises the scope of the power of a court, on the trial of a charge of an offence, to exclude prosecution evidence (other than confessional evidence) on the ground that to receive it would make the trial of the defendant unfair. Subject to the decision on that point, the appeal raises the question of how the discretion (for convenience I will refer to it as the unfairness discretion), should be exercised in circumstances such as arose in this case.
The Full Court was constituted by five judges because the Solicitor-General, Mr Kourakis QC, appearing for the appellant, wished to submit that the Court should reconsider what was said in R v Lobban [2000] SASC 48; (2000) 77 SASR 24 about the scope of the unfairness discretion.
The case is one in which Mr Hall was charged with driving a motor car while there was present in his blood the prescribed concentration of alcohol, contrary to s 47B of the Road Traffic Act 1961 (SA) (“the RTA”). The Prosecution relied on the result of a breath analysis and on the presumption created by s 47G(1) of the RTA to prove the charge. The issues that I have identified arise because of the circumstances in which Mr Hall had a sample of his blood taken for the purposes of analysis as contemplated by s 47G(1a) of the RTA.
Facts and legislation
There is no dispute about the facts. I will confine the following summary to the matters essential to identify the issues.
At about 10.20 pm on 11 December 2005 Mr Hall was driving a motor car that was involved in a collision with another motor car. At 11.21 pm that day he was required to submit to a breath analysis using a breath analysing instrument: s 47E of the RTA. The breath analysing instrument indicated that the concentration of alcohol present in his blood was 0.081 grams of alcohol in 100 millilitres of blood: s 47EB and s 47G(1).
The requirements and procedures referred to in s 47G(1) of the RTA were complied with. They included reading to Mr Hall the prescribed oral advice pursuant to s 47G(2a)(a). That included advice that if Mr Hall asked for and was given a blood test kit he should “take the kit promptly to a Hospital or medical practitioner in order to have a sample of your blood taken”. Mr Hall was also given the prescribed written notice which includes a statement that if he was supplied with an approved blood test kit he should “then proceed promptly to a Hospital or a medical practitioner of your choice and request that a sample of your blood be taken …”.
The Magistrate found that Mr Hall arrived at the Royal Adelaide Hospital, intending to have a sample of blood taken for analysis, at about 1.00 am on 12 December. On the way to the Hospital he stopped at the accident scene to collect his car (his parents were with him by then) which had in it some expensive equipment belonging to his employer. He wanted to make sure that the equipment was safe. The Magistrate found that this caused a delay of about 20 minutes in getting to the Hospital. The Magistrate found that Mr Hall was not open to criticism for what he did: [27]. He found that Mr Hall attended promptly at the Hospital: [31].
Once at the Hospital Mr Hall waited until 5.30 am before a sample of blood was taken. The Magistrate found the Hospital staff were dealing with patients whose needs were more urgent than those of Mr Hall. By implication the Magistrate found that Mr Hall was not at fault in relation to the time that elapsed.
The sample of blood taken at 5.30 am was dealt with “in accordance with the procedures prescribed by regulation”: s 47G(1a)(a).
Upon analysis there was no alcohol in the blood.
The Magistrate found that at 1.20 am, when Mr Hall first spoke to a staff member at the Hospital, there was alcohol in his blood that would have been detected had a sample been taken then: [26] and [31].
The Magistrate heard expert evidence from Mr Lokan, a forensic scientist. Mr Lokan said that there was no way of knowing the rate at which Mr Hall’s body eliminated alcohol from his blood on the night in question. Mr Lokan assumed for the purposes of his evidence that Mr Hall consumed no alcohol in the hour preceding the breath test; that an average alcohol elimination rate was 0.016 per cent (which I take to mean a rate of 0.016 grams of alcohol in 100 millilitres of blood per hour); that at the assumed average rate of elimination, and assuming that the result indicated by the breath analysing machine was correct, there would have been no alcohol left in Mr Hall’s blood as from 4.20 am; that for any alcohol to remain in Mr Hall’s blood at 5.30 am the rate at which alcohol was eliminated would have to have been less than 0.0135 per cent. Mr Lokan told the Magistrate that the rate at which alcohol was eliminated from blood was known to range between a low of 0.006 per cent (the lowest rate recorded) and about 0.03 per cent (which he described as “a reasonable maximum rate of elimination”). The Magistrate accepted this evidence.
It is necessary to refer only to three of the subsections of s 47G of the RTA. They are as follows:
47G(1)     Without affecting the admissibility of evidence that might be given otherwise than in pursuance of 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.
(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 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.
…
(2a)   Where 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.
The Magistrate’s decision
There is no need for me to revisit the cases dealing with the operation and effect of the presumption that arose in the circumstances by virtue of s 47G(1) of the RTA. I refer to my summary of these matters in Police v Henwood [2005] SASC 209; (2005) 92 SASR 15 at [32]-[37].
The only way in which Mr Hall could rebut the presumption under s 47G(1) was by proving the result of the analysis of the sample of blood that was taken from him and by proving that when the result of that analysis was explained by expert evidence about alcohol elimination rates (what is colloquially called a “back calculation”), the result of the blood analysis demonstrated not just that the concentration of alcohol in Mr Hall’s blood at the time of the breath analysis was less than that indicated by the breath analysing instrument, but that the difference was such as to lead to a conclusion that the breath analysing instrument had given “an exaggerated reading of the concentration of alcohol” present in Mr Hall’s blood: Evans v Benson (1986) 46 SASR 317; Police v Shelmerdine [2000] SASC 45; (2000) 76 SASR 199 and Tonkin v Police [2006] SASC 145. The back calculation would have to be based on assumed rates of alcohol elimination, having regard to the fact that the actual rate of elimination on the night in question could not be known.
Mr Hall was unable to do this. The finding that there was no alcohol in the sample of blood taken at 5.30 am was not inconsistent with the result obtained by breath analysis at 11.20 pm on the preceding evening.
However, I add by way of comment on Mr Lokan’s evidence, that if Mr Hall’s alcohol elimination rate was relatively low, a little less than 0.0135 per cent, alcohol might have been detected in the sample of blood taken from him. That result, that is, a finding of alcohol in his blood at 5.30 am, would not have assisted him to rebut the statutory presumption. It would tend to support the prosecution case.
The Magistrate accepted that if a sample of Mr Hall’s blood had been taken earlier than 4.20 am, on Mr Lokan’s evidence it was probable that alcohol would have been detected in his blood, assuming that the breath analysis result was accurate and assuming the same average alcohol elimination rate. That would not have assisted Mr Hall either.
If a sample of his blood had been taken earlier than 4.20 am, and no alcohol was detected, or even if alcohol was detected, the result might have led to a conclusion that the reading indicated by the breath analysing instrument was higher than it should have been. That would depend upon the time that had elapsed since 11.20 pm, and on the assumption made as to the alcohol elimination rate that should be adopted. Whether a finding that no alcohol was present at a particular time, or that alcohol was present, would have led to a conclusion that the instrument had given an exaggerated reading is another matter. That would again depend upon the elapsed time, the assumed elimination rate, and the extent of the difference between the result of the breath analysis and the result of the back calculation.
As I have said, the Magistrate found that Mr Hall attended at the Royal Adelaide Hospital promptly. He found that the delay in the taking of the blood sample deprived Mr Hall of the opportunity to obtain a sample of blood “that would have permitted him to be in a position to challenge the breath analysis result …”: [32].
The Magistrate said he had a discretion to exclude the prosecution evidence if reception of that evidence would be unfair to Mr Hall, in the sense of making the trial unfair: [23]. The Magistrate relied on the decision in Lobban for that proposition. The Magistrate exercised the discretion to exclude proof of the result of the breath analysis, and then dismissed the charge because without proof of that result the charge could not be proved.
Submissions on appeal
The reasons of Martin J (with whom the other members of the Court agreed) in Lobban contain two propositions that are relevant to this case.
The first is that the discretion to exclude prosecution evidence on the grounds of public policy, often referred to as the discretion in Bunning v Cross (1978) 141 CLR 54, is enlivened “only when the evidence is obtained by unlawful, improper or unfair conduct on the part of law enforcement authorities”: [40]. In Lobban the Court affirmed a statement made by Doyle CJ to that effect in Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 at 287-288. As well, Martin J criticised an earlier decision of this Court in French v Scarman (1979) 20 SASR 333. In that decision, the Court applied the Bunning v Cross discretion, even though the breath analysis reading in question had been obtained lawfully and properly, on the basis that the discretion arose because the obtaining of that evidence was very closely connected to a statutory safeguard that the police ignored after obtaining the breath analysis reading: French v Scarman at 338; Lobban at [37]-[41]. The legislation under consideration in French v Scarman required a police officer, on request by a person required to submit to breath analysis, to “do all things necessary to facilitate …” the taking of a sample of blood by a medical practitioner.
The second proposition is that a court has a separate discretion to exclude prosecution evidence, this discretion being distinct from any discretion relating to confessional evidence. The discretion can be exercised if the reception of the evidence would make the trial unfair to the defendant. This discretion is not limited to circumstances in which the police or law enforcement authorities act unlawfully, improperly or unfairly, but can include such circumstances. The purpose of the discretion includes the protection of rights and privileges of the defendant, and procedural rights: Lobban at [60], [77], [82].
In Lobban Martin J summarised his conclusions relating to the various bases on which a court hearing a charge of an offence has a discretion to exclude evidence. Like any summary, it must be read with the more detailed exposition of the relevant principles. However, it is convenient to repeat that summary. At [89] Martin J said:
[89]By way of summary, the following is an outline of the conclusions I have reached concerning discretionary exclusion of evidence:
(i)    A court has a discretion to exclude confessional evidence in the exercise of the overall discretion enunciated in the majority judgment and by Kirby J in Swaffield.
(ii)     Until the High Court determines otherwise, the overall discretion should be regarded as limited to confessional evidence.
(iii)     Prior to Swaffield, discretionary exclusion of confessional evidence was based upon two independent but overlapping discretions, namely, the public policy discretion and a discretion which had as its focus unfairness to an accused.
(iv)    The public policy discretion also extends to non-confessional evidence.
(v)     The public policy discretion, whether in the context of confessional or non-confessional evidence, is enlivened only if the evidence was obtained by unlawful or improper conduct or if the criminal offence was induced by unlawful or improper conduct on the part of law enforcement authorities.
(vi)    The authorities are not consistent as to whether the unfairness discretion formerly applicable to confessional evidence was enlivened only if some unlawful or improper conduct on the part of law enforcement authorities resulted in the making of the confession.
(vii)    A discretion exists to exclude non-confessional evidence on the ground that to receive it would be unfair to an accused in the sense that the trial would be unfair:
ithe purpose of this discretion is to ensure that an accused person receives a fair trial and is not improperly convicted;
ithe operation of this discretion is not dependent upon the conduct of law enforcement authorities;
iin principle, this discretion applies to any evidence, but in those areas where special bodies of law exist with respect to the admissibility and discretionary exclusion of particular types of evidence, this discretion may be subsumed by or overlap with well established principles.
(viii)   I agree with the observations of Doyle CJ concerning the application of and scope for the exercise of the general unfairness discretion.
(ix)    The Christie discretion based upon a comparison of probative and prejudicial values should be seen as an example of the application of the general unfairness discretion.

Mr Kourakis submits that the unfairness discretion arises only if the admission of the relevant prosecution evidence would create a perceptible risk of a miscarriage of justice, as a result of some difficulty in evaluating the tendered evidence, meaning that the capacity of the court to adjudicate fairly on the evidence is unacceptably compromised. To put it a little differently, the unfairness that gives rise to this discretion is unfairness in the adjudicative process, something that creates such a risk of error or miscarriage arising from the admission of the evidence that it would be unfair to the accused to receive the evidence. And so it is matters such as unreliability, or the fact that evidence is unduly prejudicial that would give rise to the need to consider the exercise of the unfairness discretion.
Mr Kourakis submits that the unfairness discretion does not extend to the protection of procedural rights or privileges, that it is not concerned with what might be called forensic disadvantage. Nor, he submits, does the unfairness discretion permit the excusion of evidence on the grounds that the admission of the evidence would, in a general sense, compromise a statutory procedural right.
Mr Kourakis further submits that French v Scarman was correctly decided. He submits that the Bunning v Cross discretion should be held to arise if, as a result of unlawful or improper conduct by the police or law enforcement authorities, the conduct being associated with the obtaining of the evidence in question (but not necessarily enabling the evidence to be obtained), the effect or weight of prosecution evidence is enhanced or some forensic advantage is obtained as a result of the admission of the evidence. In particular, he submits that the Bunning v Cross discretion should not be limited, as it is by Lobban, to circumstances in which the evidence (which it is sought to exclude) is literally obtained by unlawful or improper conduct.
In part his submission is that if that extension is made (assuming it to be an extension) to the scope of the conduct enlivening the discretion in Bunning v Cross, it then becomes unnecessary to treat the unfairness discretion as applying to situations in which there has been non-compliance with or a failure to meet procedural or statutory safeguards after the obtaining of the evidence which it is sought to exclude.
In support of that submission he relies upon the decision of the Court of Appeal of the Supreme Court of Victoria in Director of Public Prosecutions v Moore [2003] VSCA 90; (2003) 6 VR 430. That was a case, under similar legislation, in which the operator of a breath analysing instrument advised the defendant that a blood alcohol reading obtained from a blood sample was likely to be higher than the result of a breath analysis, thus dissuading the defendant from exercising a statutory right to have a sample of blood taken and analysed. The Court considered the decision in Lobban in some detail. Two members of the Court took the view that the Bunning v Cross discretion did arise, even though the conduct complained of, the advice about the likely result of a blood analysis, occurred after the result of the breath analysis was obtained. Chernov JA agreed that ordinarily the Bunning v Cross discretion will not arise where the conduct complained of takes place after the challenged evidence is obtained, but said at [55] that there were cases in which the conduct complained of:
… so closely follows that by which they have obtained the evidence and so closely relates to the value and effect of that evidence that there can be no meaningful separation between the two aspects of their seemingly continuous conduct for the purpose of determining if the public policy discretion is enlivened.
Accordingly, he preferred the reasoning in French v Scarman to that extent, and treated the case before him as enlivening the Bunning v Cross discretion: at [56]. Eames JA took the same approach: at [91] and [93]. Batt JA preferred the reasoning in Lobban, and restricted the application of the Bunning v Cross discretion in the same way as did Martin J: at [29]-[32]. However, all three members of the Court took the view that the unfairness discretion also arose in the circumstances of the case, and two, and possibly three members of the Court agreed with the approach of Martin J to the scope of the unfairness discretion: Batt JA at [34]-[35], Chernov JA at [61]; cf Eames JA at [95].
In effect, Mr Kourakis submits that the Court should extend the scope of the Bunning v Cross discretion beyond the scope that was given to it in Lobban, and should limit the scope of the unfairness discretion more closely than it was limited in Lobban.
Turning to the circumstances of this case, the Bunning v Cross discretion does not require consideration, whether the touchstone for the discretion is correctly described in Lobban or should be described as submitted by Mr Kourakis. Mr Kourakis argues that if his submissions are accepted, the unfairness discretion does not arise in the present case. The evidence on which the Prosecution relies, the result of the breath analysis, is not unreliable evidence. To the contrary, the statutory scheme is that ordinarily it is to be treated as reliable, and will provide the basis for an irrebuttable presumption. The inability of Mr Hall to challenge the result of the breath analysis using the result of an analysis of his blood does not involve any unfairness in the sense of raising a risk of the Court acting on unreliable evidence, or on evidence that the Court cannot adequately assess. On the approach taken by Mr Kourakis, the fact that a procedural safeguard or statutory right was not able to be exercised by Mr Hall is neither here nor there, because on his approach the unfairness discretion does not operate to protect such rights or protections. Accordingly, because there is no relevant unfairness, the unfairness discretion does not fall for consideration.
In the alternative, if the law as stated in Lobban is to be applied, Mr Kourakis submits that the Court should hold that there is no relevant unfairness. Mr Kourakis submits that the only relevant right is the statutory right to be supplied with a blood test kit and to have the opportunity to have a sample of blood taken and analysed. That right was given to Mr Hall. There is nothing in the statutory scheme to indicate that Parliament intended to condition the admissibility of the result of a breath analysis on the person whose breath is analysed actually having a sample of blood analysed under circumstances such that there is a possibility of successfully challenging the result of the breath analysis. To treat the present case as giving rise to a relevant unfairness is, in effect, to create a condition of admissibility that is inconsistent with the statutory scheme. The case is no different, Mr Kourakis argues, from one in which the defendant is unable to afford a fee that might be charged for the taking of a blood sample, or in which the defendant, through some misfortune not of his making, loses the blood test kit or for some other reason is unable to have a blood sample taken.
Mr Kourakis submits that the effect of the Magistrate’s approach is, through the unfairness discretion, to add to the statutory scheme an unstated and inconsistent limitation on the admissibility of the result of a breath analysis.
Should the Court reconsider the decision in Lobban?
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] HCA 1; (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.
It follows that none of the recognised bases for this Court reconsidering one of its decisions have been established: see Pashalis v WorkCover Corporation (1994) 63 SASR 71 at 73 King CJ, at 82 Perry J and at 85 Debelle J.
It is worth making the further point that the aim of Mr Kourakis is to narrow the scope of the unfairness discretion. While the decision in Director of Public Prosecutions v Moore supports the submissions advanced by Mr Kourakis in relation to Bunning v Cross, it seems to be against him in relation to his main submission, the scope of the unfairness discretion.
Nevertheless, in light of the submissions by Mr Kourakis, and of the decision in Director of Public Prosecutions v Moore (above), 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.
I acknowledge the force of that reasoning. While it introduces an element of imprecision, and requires an assessment of the legislation, I agree that there may be cases in which the statutory safeguard is so closely connected to the obligation to submit to a breath test that the obtaining of that evidence cannot meaningfully be separated from the observance of the safeguard.
To that extent I would modify what was said in Lobban.
The present case is not such a case. It does not fall within the scope of the Bunning v Cross discretion, as explained in French v Scarman. The present case is to be decided by reference to the second of the propositions in Lobban that I set out earlier in these reasons.
Decision on appeal
Accordingly, I approach the matter on the basis of the law as stated in Lobban.
That requires consideration of the question of whether, in the circumstances, the trial would be unfair if the result of the breath analysis was not excluded in the exercise of the unfairness discretion.
A starting point is that the evidence of the concentration of alcohol indicated as being present by the breath analysing instrument is not unreliable evidence. Section 47G treats it as reliable evidence. It may be that the provisions of s 47G reflect an assumption that the result of the analysis of a sample of blood is more reliable than the result indicated by a breath analysing instrument: see Evans v Benson at 324 King CJ. But that does not make the result obtained from a breath analysing instrument unreliable evidence in the relevant sense. If that is the only evidence, s 47G(1) requires that it be admitted (subject to the exercise of a relevant discretion), and treats it as reliable evidence. This Court could not hold otherwise.
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.
There has been no misconduct or impropriety by the police, or by anyone who can be identified as a law enforcement authority. Indeed, there was no misconduct by anyone. The Magistrate found that the Hospital staff on the night in question dealt with patients according to their understanding of the patients’ needs.
If there is any unfairness, it has to be found in the circumstances that Mr Hall went promptly to the Hospital, but without any fault on his part a sample of blood was not taken quickly enough to preserve the possibility of the sample providing a basis to demonstrate that the “breath analysing instrument gave an exaggerated reading …”. That was the Magistrate’s approach.
The suggested unfairness needs closer examination.
Mr Hall’s statutory rights were accorded to him. Upon request he was provided with an approved blood test kit. He was given the prescribed oral advice and the prescribed written notice. The RTA does not give a driver a right, in the sense of an enforceable right, to have a sample of blood taken. It allows a driver to have a sample of blood taken, and to give evidence of the result of the analysis of that sample if the statutory conditions are met: s 47G(1a). As it happens, a sample of Mr Hall’s blood was taken by a qualified person. The sample was dealt with “in accordance with the procedures prescribed by regulation”: s 47G(1a)(a).
No statutory safeguard was denied to Mr Hall. Because of the delay at the Hospital the analysis of the blood sample could not assist his defence. Whether analysis of his blood (if taken earlier) would have assisted his defence cannot be known.
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.
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.
Another point to bear in mind is that it cannot be said that the delay deprived Mr Hall of evidence that would assist his defence. All that can be said is that the result of the analysis of his blood, if the sample was taken within an appropriate time, might have assisted his defence. There is no way of knowing if it would.
But quite apart from that, the Magistrate’s finding that delay prevented Mr Hall being in a position to challenge the result of the breath analysis requires closer examination.
Dr Lokan’s evidence proceeds on the basis that, assuming no further alcohol is consumed, a person’s body will eliminate alcohol from the blood at a rate that will vary at least from person to person, and possibly according to other circumstances. As I mentioned earlier, Dr Lokan identified “the normal rate of elimination” as lying between 0.006 per cent per hour (the lowest rate recorded) and 0.030 per cent per hour (a reasonable maximum rate).
In any given case, if the time that elapses between the analysis of a driver’s breath and the taking of a blood sample is such that, applying an average or normal elimination rate (which must be assumed), the concentration of alcohol found by breath analysis might have been eliminated from the driver’s blood, then the analysis of that sample of blood cannot assist the driver forensically. The analysis of a sample of blood taken at or after that time cannot be inconsistent with the result indicated by the breath analysing instrument. The presence of alcohol after that time will, if anything, tend to support the prosecution case.
For any case there will be a period of time after which, applying an average elimination rate of alcohol, one will expect to find no alcohol remaining in the driver’s blood. The length of that period will depend upon the concentration of alcohol indicated by breath analysis (the higher the concentration, the longer the period), and the elimination rate or range of rates that is applied. The lower the concentration of alcohol recorded by breath analysis, the shorter will be the period within which one would expect to find all of the alcohol has been eliminated from the individual’s blood.
On Mr Lokan’s evidence, if the breath analysing instrument had indicated that Mr Hall had present in his blood 0.051 grams of alcohol in 100 millilitres of blood, one would have expected all of that alcohol to be eliminated from his blood in a little more than three hours. Accordingly, in those circumstances a blood sample taken after 2.20 am could not have been of any forensic utility. Moreover, as a range of possible elimination rates must be assumed, the relevant period of time would have to be expressed as a range. It is also necessary to recognise that the closer one gets to the time at which the alcohol might be eliminated from the blood, the more difficult it must be to draw a conclusion from a finding on analysis of a sample of blood that no alcohol was present.
This highlights the fact sensitive nature of the enquiry that the Magistrate’s approach would require in any case like the present one.
To say that Mr Hall was deprived from obtaining a sample of blood “that would have permitted him to be in a position to challenge the breath analysis result”, does not fully expose what it is that Mr Hall asserts.

Mr Hall asserts, in effect, that his trial is unfair if, through no fault of his own, a sample of his blood is not taken within such a time that, having regard to the concentration of alcohol found in his blood on breath analysis, and allowing for an average elimination rate of alcohol, the time that elapses cannot render the analysis of the sample of blood pointless. It will be pointless if the concentration of alcohol found by breath analysis might have been, or could have been, naturally eliminated within the time in question, or might have been or could have been reduced to that found on analysis of the blood sample. The length of the period will depend upon the concentration of alcohol present and the elimination rate that is, or the rates that are, assumed for these purposes. The length of the period is something that is unlikely to be known to the driver, or to the qualified person to whom the driver goes to have a sample of blood taken.
When this aspect of Mr Hall’s submission is exposed, it is difficult to say that a trial becomes unfair because the sample of blood is not taken within the relevant period of time. To say that Mr Hall was deprived of his right to challenge the accuracy of the blood test conceals the true nature of the claim that he makes.
As I said earlier, I accept that in a general sense it can be said to be unfortunate that a sample of Mr Hall’s blood was not taken sooner than it was. And I accept that it is possible, but no more than possible, that if a sample of blood had been taken soon after he attended the Hospital the result of the analysis of the sample would have assisted his defence. But I am unable to take the next step and to conclude that, in any relevant sense, the trial of the charge was thereby made unfair. In my opinion the unfairness discretion did not arise.
In Lobban I said at [2] that the scope for the exercise of this discretion:
… 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.
Martin J agreed with that point in para (viii) of his summary of conclusions (above). While those observations do not determine the outcome of this case, the case falls within them.
In Police v Jervis (1998) 70 SASR 429 the defendant had a sample of blood analysed, but the medical practitioner failed to comply with the applicable regulations. That meant that the result of the analysis could not be used to rebut the statutory presumption. In another case, argued at the same time, and reported under the same name, the defendant decided not to have a sample of blood analysed after a member of the medical staff told him that the analysis of the sample of blood would indicate a higher concentration of alcohol than the blood than did the breath analysis. This Court held that in neither case did the unfairness discretion call for the exclusion of the result of the breath analysis: at 449-450. Although the decision was given before the scope of the relevant discretions was clarified in Lobban there is nothing in Lobban to cast any doubt on the correctness of the decision. A similar approach was taken by this Court in R v Clarke [2003] SASC 380; (2003) 87 SASR 203, although there the unfairness argument was even weaker. In Director of Public Prosecutions v Moore the unfairness discretion was held to be available, emphasis being given to the fact that the driver had “lost the possibility of being able to lead evidence of a lower blood alcohol concentration”: Batt JA at [35]. Chernov JA took a similar approach at [61]. Eames JA said that the matter should be referred back to the Magistrate: at [96]. It is unclear from their Honours’ reasons how much weight they put for this purpose on the fact that the operator of the breath analysing instrument advised the defendants against having a blood sample taken.
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.
For these reasons, the trial would not have been unfair had the Magistrate acted on the result indicated by the breath analysing instrument. The Magistrate erred in exercising his discretion to exclude the evidence.
Since preparing my reasons I have had the opportunity to consider the reasons of Gray J.
As our approaches differ, I make the following further points.
I accept that the application of the unfairness discretion is not dependent upon the conduct of the law enforcement authorities: see Martin J in Lobban at [89]. However, as I said in Lobban at [2], the scope for the exercise of the unfairness 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. As I have already said in my reasons at [74], the unfairness discretion might have been enlivened in this case if a member of the police force was implicated in the loss or denial of a safeguard provided by the RTA.
There has been no failure by a member of the police force to comply with a statutory requirement, and no interference by a member of the police force with the exercise by Mr Hall of his statutory entitlements, or with him taking such action as he thought appropriate in his own interests. A number of the cases relied on by Gray J are cases in which the police have failed to observe statutory requirements, or have placed obstacles in the path of the driver who wishes to exercise a statutory entitlement. Nor is there any basis for criticising the staff of the hospital or the procedures followed at the hospital, even if that is a relevant matter.
I do not know whether or not hospital staff regularly fail to take promptly a blood sample from a driver who asks that one be taken for the purposes of s 47G of the RTA. But I do not regard that as a relevant matter.
The issue in the present case is whether Mr Hall is able to receive a fair trial if the evidence of the result of the breath analysis is not excluded. The issue is not whether a conviction could be said to involve unfairness in a more general sense: see Lobban at [73], citing Rozenes v Beljajev [1995] 1 VR 533.
Obtaining a conviction on the basis of the result of the breath analysis and the statutory presumption under s 47G(1) of the RTA cannot be said to make the trial unfair. Parliament provides for proof of guilt in this manner.
The fact that the only possible source of evidence to rebut the statutory presumption is not available to Mr Hall cannot, of itself, be a reason to describe the trial as unfair.
The reason why that evidence is unavailable (the circumstances surrounding the taking of the blood sample) does not provide a basis for describing the trial as unfair. The statutory scheme, for better or worse, leaves it to a driver whose breath has been analysed to attend to the taking of a blood sample using an approved blood test kit. A blood sample, from which a conclusion about the blood alcohol level at the time of the breath analysis can be drawn, might not be obtained for all sorts of reasons. They might range from the driver changing his or her mind and not having a blood sample taken (and that change of mind might be attributable to all sorts of factors), through to circumstances such that one could say that the driver’s intention to have a sample taken has been defeated. Categorising those circumstances in terms of whether or not they reflect the fault of the driver is, in my opinion, a rather elusive task, and introduces an element that is difficult to reconcile with the statutory scheme. Quite apart from that I cannot agree that the trial is unfair if the explanation for the failure to obtain a blood sample, from which a conclusion about the blood alcohol level at the time of the breath analysis can be drawn, involves no fault of the driver. There can be all sorts of mishaps that attend the trial of an offence. It would have far reaching consequences if the inability of the defence to pursue a line of enquiry that might assist the defence, through no fault of the defendant, was said to make a trial unfair. Perhaps that is expressing it too broadly. Mr Hall has been unable to make use of the only line of enquiry that might have assisted him. But the statutory scheme involves the risk of that happening. I remain unpersuaded that the recording of a conviction on the basis of the result of a breath analysis in those circumstances would amount to a trial that is unfair. It is simply a case in which the defendant has been unable to present evidence that provides a basis to attack the statutory presumption.
In my respectful opinion the circumstances relied upon by Gray J to enliven the unfairness discretion lie in the realm of general unfairness, rather than in unfairness of the trial itself.
Conclusion
The appeal should be allowed. The order dismissing the charge of driving while there was present in Mr Hall’s blood the prescribed concentration of alcohol should be set aside. The matter should be remitted to the Magistrates Court for further consideration.
NYLAND J: I have had the benefit of reading the reasons for decision of the Chief Justice (including the Addendum) and of Bleby, Gray and Vanstone JJ.
I agree with the reasons given by Gray J and with the approach taken by him. I would dismiss the appeal. I would, however, like to I add the following comments.
I agree with Gray J that the inability to adduce evidence rebutting the statutory presumption contained in s 47G Road Traffic Act 1961 (the Act), not connected to any impropriety or unlawfulness on the part of the police, enlivens the unfairness discretion to exclude otherwise admissible evidence. The Solicitor-General’s argument to the contrary is, in my view, inconsistent with the long established discretion of a criminal court to reject otherwise admissible evidence because of unfairness (Jago, Driscoll, Van Der Meer, Harriman, Dietrich and Swaffield). Whatever terminology is used, there exists a general discretion to reject otherwise admissible evidence if the circumstances call for its exclusion. In my opinion, this discretion is not fettered by the operation of the Act, and is in fact recognised by s 47G(1) of the Statute.
Whilst many cases in which evidence has been excluded in the exercise of this discretion have involved impropriety or unlawfulness on the part of a third party, I do not think the discretion should be limited in such a way as to confine it to closed a category of circumstances.
I remain of the view that I expressed in Police v Erwin (1997) 26 MVR 360 (at p 364):
… I consider that the failure to comply with such an important statutory requirement can be categorised as being unfair and therefore does give rise to the discretion to exclude on the grounds of unfairness. I also agree with the submission made by Mr Peek that whether one is considering the exercise of a “fairness” discretion or a discretion more concerned with breach or non-performance of a statutory requirement, it is not necessary to establish that the police themselves were responsible for the breach or the non-performance. In Bunning v Cross, Stephen and Aickin JJ referred to conduct by ‘the authorities’ not just by the police. In some cases the unfairness may arise from the objective impact of the state of affairs of an accused person, quite apart from any causal behaviour or failure by the police.
Clearly, the situations in which the exclusion of evidence in the exercise of the discretion will be warranted will be many and varied. It is the position Mr Hall found himself which in this case gives rise to the unfairness discretion. Mr Hall did all that he was required to do by the statute in order to obtain a blood test by attending at the Royal Adelaide Hospital. There is no evidence to suggest that the blood sample could have been taken any more promptly somewhere else. As a result of the delay at the hospital, Mr Hall was denied the only opportunity afforded to him to dispute the breath analysis reading.
The circumstances of the case therefore gave rise to a discretion in the magistrate to exclude the evidence of Mr Hall’s breath analysis evidence. Although views might differ as to how that discretion should be exercised, I am not persuaded that in the circumstances of this case error has been demonstrated in the way in which the magistrate exercised his discretion so as to require this court to interfere.
BLEBY J: The facts giving rise to this appeal and the relevant provisions of the Road Traffic Act 1961 and Regulations have been adequately stated in the judgments of the Chief Justice and of Gray J. I will not repeat them.
By concurring with Martin J in R v Lobban[1], 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[2] 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 DPP v Moore.[3]
[1] (2000) 77 SASR 24.
[2] (1998) 192 CLR 159.
[3] (2003) 6 VR 430, Batt JA at 444 – 446, [34] – [35]; Chernov JA at 455 [61]; Eames JA at 460 – 462, 464, [79] – [86], [94].
It must be remembered that the essence of the unfairness discretion relates not to a general sense of unfairness but to the fairness of a defendant’s trial.[4]
[4] R v Lobban (2000) 77 SASR 24 at 51, [89].
By my concurrence with Martin J, I also joined in his criticism[5] of part of the reasoning (but not the result) in French v Scarman.[6] I am persuaded that the non-observance by the police in that case of the then statutory obligation to facilitate the taking of the blood sample was sufficiently connected with the obligation to submit to the breath test that the public policy discretion could be relied on. However, it was pointed out in R v Swaffield[7] that there will be inevitable overlapping of the public policy discretion and the unfairness discretion identified in that case. So it will be also with the general unfairness discretion identified in R v Lobban. This was also recognised by the Victorian Court of Appeal in DPP v Moore[8] by the Court’s acceptance of the general unfairness discretion as an alternative ground for excluding the evidence in that case. Whether that means that in reality there should be only one general unfairness discretion having a number of different manifestations or whether the different categories of discretionary rejection of evidence should remain does not matter much for present purposes.
[5] Ibid at 32 – 34.
[6] (1979) 20 SASR 333.
[7] (1998) 192 CLR 159, Brennan CJ at 182; Toohey, Gaudron and Gummow JJ at 196.
[8] (2003) 6 VR 430.
However, there can be no overlap in this case. The Bunning v Cross[9] discretion cannot apply. There is not that necessary close connection between the obligation to submit to the breath test and any other act or default said to give rise to the exclusion of evidence in this case. The police complied in every respect with their obligations under the Act and Regulations. The breath analysis was lawfully performed. The prescribed oral explanation was given. The prescribed blood test kit was supplied and the prescribed written notice was given. What prevented the obtaining of a useful blood sample was the delay that the respondent encountered in his choice of facility in which to have the sample of blood taken. He was not required to have it taken at the Royal Adelaide Hospital. There was no evidence as to the availability of alternative facilities, but the legislation assumes, and one could take judicial notice of the fact, that in the Adelaide metropolitan area there are a number of public and private 24-hour outpatient hospital facilities and many 24-hour medical clinics where a sample of blood could be taken in accordance with the requirements of the Act and Regulations.
[9] (1978) 141 CLR 54.
The evidence derived from a blood analysis is not required to be used by the prosecution to prove the case against a defendant. It is evidence that can be used by a defendant by way of rebuttal of the statutory presumption required by s 47G(1) of the Road Traffic Act. It is evidence in respect of which there lies an evidentiary burden on the defendant. It therefore behoves a defendant, if he or she wishes to take advantage of the provision, to ensure that he or she is in a position to do so and to take all reasonable steps to obtain the necessary evidence, in order that the necessary back-calculation can be applied with the aid of appropriate expert evidence. Even then, the rebuttal evidence will only succeed if it demonstrates, on the balance of probabilities, that the breath analysing instrument gave an exaggerated reading.[10]
[10] Evans v Benson (1986) 46 SASR 317; Police v Shelmerdine (2000) 76 SASR 199.
It is no doubt in order to assist a defendant in that regard that the prescribed notices which must be given advise the intended defendant that he should take the test kit supplied “promptly” to a hospital or medical practitioner in order to have the sample of blood taken. It is common knowledge, that in time and without replenishment, the body eliminates all alcohol from the blood, and that the lower the concentration of alcohol in the blood, the shorter will be the time taken to eliminate that alcohol from the blood, thereafter rendering a blood test useless for the purposes of s 47G(1a).
It has not always been the case that the responsibility for obtaining a prompt blood test has been on the defendant.
Prior to 1979, s 47g of the Road Traffic Act 1961 [11] relevantly provided:
(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given in any proceedings for an offence against this Act of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorized to operate the instrument by the Commissioner of Police and, where the provisions of subsection (2) of this section have been complied with, it shall 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 period of two hours immediately preceding the analysis.
(2)As soon as practicable after a person has submitted to an analysis of his breath by means of a breath analysing instrument, the person operating the instrument shall deliver to the person whose breath has been analysed a statement in writing specifying –
(a) the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams in a hundred millilitres of blood;
and
(b) the day on and time of the day at which the analysis was made.
[11] Section 47g was enacted by Act No 43 of 1967
The section did not contain any provisions relating to the taking of a blood sample. They were contained in s 47f:
(1)A person required in accordance with this Act to submit to an alcotest or breath analysis may request that a sample of his blood be taken at his expense by a medical practitioner nominated by him.
(2)A member of the police force to whom a request is made under subsection (1) of this section shall do all things necessary to facilitate the taking of the sample and if that sample is taken by the medical practitioner he shall so take it in the presence of a member of the police force.

Subsection (3) provided what was to happen to the sample of blood taken.
There were no regulations relating to the form of request for a blood analysis or any specified procedures relating to the taking of the sample. However, it will be noted that there was an obligation on a police officer to “do all things necessary to facilitate the taking of the sample” and to be present when the sample was taken. There was no restriction on the nature of rebuttal evidence that could be led.
By the Road Traffic Act Amendment Act 1979[12] s 47g(1) was amended to include a reference to the need to comply with “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act including subsections (2) and (2a).” A new subsection (1a) was inserted as follows:
(1a)In any proceedings for an offence against this Act no evidence shall be adduced in rebuttal of the presumption created by subsection (1) of this section except evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of his blood taken and dealt with in accordance with section 47f or 47i of this Act.
[12] Act No 42 of 1979 which commenced on 1 April 1979.
After subsection (2) the following new subsection was inserted:
(2a)Where a person has submitted to an analysis of his 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 shall forthwith –
(a) inform that person of his right pursuant to section 47f of this Act to have a sample of his blood taken by a medical practitioner;
and
(b) warn him that if he does not exercise that right it may be conclusively presumed for the purposes of proceedings for an offence against this Act that the concentration of alcohol in his blood during the period of two hours preceding the analysis was the concentration as indicated by the breath analysing equipment.
There were no relevant amendments to s 47f. There were still no relevant regulations relating to the procedures under those subsections or under s 47f.
By the Road Traffic Amendment Act (No 3) 1984[13] s 47f of the Act was amended by deleting subsections (1) and (2) and by substituting the following:
[13] Act No 84 of 1984 which commenced on 1 January 1985.
(1)A person required in accordance with this Act to submit to a breath analysis may request of a member of the police force that a sample of his blood be taken by a medical practitioner.
(2)Where a request is made by a person under subsection (1), a member of the police force shall do all things reasonably necessary to facilitate the taking of a sample of the person’s blood –
(a)     by a medical practitioner nominated by the person;
or
(b)     if –
(i)it becomes apparent to the member of the police force that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within one hour of the time of the request at some place not more than ten kilometres distant from the place of the request;
or
(ii)the person does not nominate a particular medical practitioner;
by any medical practitioner who is available to take the sample.
(2a)The taking of a sample of blood pursuant to this section –
(a)     shall be carried out by the medical practitioner in the presence of a member of the police force;
and
(b)     shall be at the expense of the person from whom the sample is taken.
There was no attempt at that time to prescribe by regulation any further detail. No relevant amendments were made to s 47g. There was still an obligation on a police offer to facilitate the taking of the sample and to be present at its taking.
By the Road Traffic Act (Breath Analysis) Amendment Act 1993[14] s 47f of the Act was amended so that it only applied to blood tests where there had been a failure or refusal to undertake a breath analysis by reason of some physical or medical condition. The regulation of the taking of voluntary blood tests was transferred to s 47g.
[14] Act No 86 of 1993 which commenced on 1 February 1994.
Section 47g(1a) was amended to strike out any reference to s 47f, and subsection (2a) was amended to read as follows:
(2a)Where a person has submitted to an analysis of his 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 shall 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 to the person a blood test kit in a form approved by the Minister for facilitation of the taking and analysis of a sample of the person’s blood.
The obligation on police to facilitate the taking of a blood sample was removed.
Subject to the later amendment to subsection (1a) and the insertion of subsections (1ab) and (1b), that is when s 47g relevantly took its present form. It is also when regulations were first enacted in the form of the Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994. Regulations 4, 5 and 6 of those regulations and the accompanying schedules containing the prescribed oral advice and written notice are in substance the same as regulations 9, 10 and 11 and the accompanying schedules presently contained in the Road Traffic (Miscellaneous) Regulations 1999.
The present statutory scheme places an onus on the defendant to ensure that a relevant useful sample of blood is obtained in the relatively short time available. In some cases, this could be very short, as any concentration of alcohol in the blood is a prescribed concentration of alcohol for a person who is not authorised under the Motor Vehicles Act 1959 to drive the vehicle and for a person who is driving a prescribed vehicle.[15]
[15] Section 47A of the Road Traffic Act 1961.
I mention that history of the statute for two reasons. First, it was in the pre 1993 statutory setting that French v Scarman[16] decided that the failure of a police officer to arrange for the taking of the sample blood justified the exercise of the public policy discretion to exclude evidence of the breath analysis. That obligation on the part of the police officer was described by King CJ[17] as a “safeguard” to protect the exercise by the defendant of his right to have a blood test performed. The failure to perform that obligation removed that protection and justified exclusion of the evidence of the breath analysis.
[16] (1979) 20 SASR 333.
[17] Ibid at 341.
Similarly, cases like Ujvary v Medwell[18] and Pacillo v Hentschke[19] were decided under that statutory regime, again in favour of the exclusion of the breath analysis evidence, because of the failure of the police to comply with the obligation to facilitate the taking of the blood sample. Each of these cases relied on the failure to comply with a statutory obligation designed to protect the defendant’s right to have the blood sample taken.
[18] (1985) 39 SASR 418.
[19] (1988) 47 SASR 261.
Since the provisions have been in their current form and the obligation on police to facilitate the taking of the sample has been removed, Police v Jelinek[20] has shown that failure to comply with the Regulations in their current form by a nurse who took the blood sample gave rise to the exercise of a discretion to exclude the prosecution evidence because of the nurse’s reliance on incorrect advice from the police. In that respect, Mullighan J distinguished Police v Jervis; Police v Holland[21] where irregularities relating to the taking of the blood sample by hospital staff were insufficient to justify the exclusion of evidence of the breath analysis.
[20] (1998) 200 LSJS 441.
[21] (1998) 70 SASR 429.
It is evident that this 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.[22] That is not say that failure by someone else to comply with the statutory requirements will not amount to unfairness in the relevant sense.[23] However, as Doyle CJ said in Lobban:[24]
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.
[22] For example, Singh v Police (2000) 31 MVR 279; Police v Jervis; Police v Holland (1998) 70 SASR 429 as qualified in R v Lobban (2000) 77 SASR 24.
[23] R v Lobban (2000) 77 SASR 24 at 25 [2], 39 [58].
[24] Ibid at [2].
The second reason for noting that legislative history is that, with the provision since 1979 that evidence of blood analysis taken in accordance with the requirement of the Act is the only means of rebutting the s 47G presumption and with the removal in 1993 of the obligation of a police officer to facilitate the taking of the blood sample, there has been a noticeable shift in responsibility for obtaining what is now the only evidence that may be used in rebuttal. The blood test kit must be requested. The police are no longer required to facilitate the obtaining of the blood sample. It is left to the person requesting the blood test kit to make his or her own arrangements. Responsibility for doing so has moved to the defendant. The defendant has more control over the process. He or she must take greater responsibility to discharge the evidential onus. As the responsibility shifts, the opportunities for the exercise of the discretion will diminish. The discretion is less likely to be exercised in relation to activities undertaken and choices exercised by the defendant.
The present legislative scheme contemplates that there may be all sorts of reasons why a suitable sample of blood may not be able to be obtained. 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.
It cannot be said, in the circumstances of this case, that the delay in taking the blood sample brought about by the respondent’s choice of facility and intervention of other priorities at that facility rendered the respondent’s trial unfair. Otherwise, the fairness of the trial would be dictated by the defendant’s choice of medical practitioner or outpatient clinic, the availability of the medical practitioner or the busyness of that clinic at the time. The present respondent was provided with the same opportunity to obtain possible rebuttal evidence as anyone else required to undertake a breath analysis which reveals a concentration of alcohol over the prescribed concentration.
Accordingly, I consider that the magistrate took into account an irrelevant consideration in exercising his discretion to exclude the evidence and the decision and acquittal must be set aside. As there was no other ground identified which would justify the exercise of the discretion to exclude the prosecution evidence, there must be a retrial. It follows that the appeal should be allowed, the order dismissing the charge should be set aside and the matter should be remitted to the Magistrates Court for further hearing.
GRAY J:
Introduction
It is the duty of the court to ensure that an accused receives a fair trial. This case calls into consideration a fundamental principle of our legal system – that a person should not be convicted of an offence save after a fair trial according to law.
This appeal raises the extent of the obligation of the court to protect civil liberties. From the point of view of the respondent, it is contended that material unfairness arose. If the Crown is successful, the respondent, Damien Wayne Hall, asserts that through no fault of his own, he stood trial in circumstances where his only avenue of defence had been rendered nugatory.
The respondent was initially charged with driving without due care in contravention of rule 62(c) of the Australian Road Rules and with driving a motor vehicle whilst there was present in his blood a prescribed concentration of alcohol pursuant to section 47B of the Road Traffic Act 1961 (SA).[25] It was alleged that the relevant concentration of alcohol was 0.081.
[25] Section 47B(1) of the Road Traffic Act provides:
The matter proceeded to trial. At the conclusion of the prosecution case, the Chief Magistrate ruled that there was no case to answer on the count of driving without due care. At the conclusion of the trial, the Chief Magistrate dismissed the count involving a contravention of section 47B of the Road Traffic Act. This appeal is against the dismissal of the second count.
The Crown Solicitor requested a hearing of the appeal by a Full Court. The grounds advanced for the request were that the decision of the magistrate raised matters of public importance that were not isolated but were frequent occurrences.[26] The problem arose through a continuing overload on public hospital resources not through any accident or slip.[27] Further, it was submitted that the Court should review an earlier decision of the Full Court - Lobban.[28] Subsequently, a request was made for convening a Full Court of five Justices.
[26] On 2 May 2006 the Crown Solicitor wrote to the Registrar of the Supreme Court requesting that the Chief Justice refer the appeal to the Full Court. The letter included the following:
I confirm the application. The learned Chief Magistrate excluded evidence of a breath analysis in exercise of the general unfairness discretion: R v Lobban (2000) 77 SASR 24. The respondent submitted to a breath analysis at 11:18pm on 11 December 2004. His Honour found that the respondent attended “promptly” at the Royal Adelaide Hospital in order to provide a sample of blood. The evidence indicates that a blood sample was not taken from the respondent until 5:30am following day (transcript, 27). The blood test indicated a zero blood alcohol level. His Honour found that “[T]he delay in obtaining the sample has meant that as a result of other hospital demands for other patients, and as a result of priority given to (the respondent’s) particular request, that he has been deprived not by his own conduct but by the conduct of others, from obtaining such a sample” (Reasons at 7). This raises an issue of general importance as to whether the learned Chief Magistrate erred in applying the general unfairness discretion in the circumstances.
The appellant challenges the applicability of the general unfairness discretion in relation to delayed blood sampling where the only evidence of “unfairness” is the fact of the failure of a defendant to obtain a timely blood sample in a busy hospital. The appellant contends that a far wider inquiry is required in such circumstances before it could be said that “unfairness”, in the Lobban sense, would result in a particular case. To suggest that the mere fact of a defendant being unable to have a timely blood sample taken, amounts to unfairness, indicates a misunderstanding of the discretion as explained in Lobban.
I have been instructed by South Australia Police that applications by defendants for the exclusion of breath analysis in circumstances similar to the case at bar are being made about twice per month and are invariably successful. In addition some sections of South Australia Police are withdrawing drink driving charges prior to a contested hearing where such applications are foreshadowed by defence counsel.
In view of the above, I respectfully submit that this matter is worthy of consideration by the Full Court.
[27] Bunning v Cross (1977) 141 CLR 54.
[28] R v Lobban (2000) 77 SASR 24.
The Facts
On 11 December 2004 at approximately 10.30pm, the respondent was involved in a minor motor vehicle collision at a suburban intersection. He was travelling home from a house warming function. The vehicle he was driving belonged to his employer. It was his work vehicle. The vehicle sustained minor damage.
Police attended the scene and spoke to the respondent and the driver of the other vehicle involved in the collision. Police required both drivers to submit to an alcotest. The respondent’s alcotest was positive.
The respondent contacted his parents who attended at the scene. In the course of his reasons, the magistrate explained that initially the respondent’s parents attended out of concern for the safety of their son but that, having ascertained that he was safe, their attention turned to the vehicle and the equipment within it. The magistrate summarised the evidence upon this topic:
Mr Hall senior ... acknowledged that he had received a telephone call from [the respondent] and that he and his wife attended at the scene of the accident concerned about [the respondent] and on their attendance there, their concern having satisfied themselves that he was safe, then turned to assisting him in connection with his responsibilities towards his employer and that involved them in obtaining from the surface of the road and placing within the car the pieces of equipment that had been [dislodged] during the motor accident and which [were] now spread about the road surface. [The respondent] in his evidence described that process and said that items spilled on to the road, that he was concerned about them, there was because of the damage to the car a very limited manner in which this valuable equipment that was not his property could be secured and it was placed within the car. The process was assisted initially by a bystander, a lady who lived nearby and at some stage the motor car was moved I think by Mr Hall senior to a place very near to where that lady was living.
Police subsequently conveyed the respondent to the Sturt Police Station for a breath analysis test. The testing commenced at 11.18pm and at 11.27pm produced the result of 0.081 grams of alcohol in 210 litres of breath. A concentration at this level would constitute a contravention of section 47B of the Road Traffic Act.
The Police then provided the respondent with a written notice as required by section 47G(2a)(a) of the Road Traffic Act and delivered the prescribed oral advice, advising the respondent of his right to obtain a blood test kit and to have a blood test. Under the heading “Procedures for Optional Blood Test”, the written notice contained the following information:
You may have a sample of your blood taken and analysed if you wish.
For that purpose, you must request the breath analysis operator to supply you with an approved blood test kit (you must sign a written request form for the kit and should retain a copy of the signed request form).
You should then proceed promptly to a hospital or a medical practitioner [*or registered nurse] of your choice and request that a sample of your blood be taken (using the blood test kit).

In Swaffield, the High Court considered the operation of the general unfairness discretion in the context of confessional evidence. Toohey, Gaudron and Gummow JJ described in the following terms the discretion to exclude evidence in circumstances where to admit the evidence would result in unfairness to the accused:[65]
The term “unfairness” necessarily lacks precision; it involves an evaluation of circumstances. …
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. … And once considerations other than unreliability are introduced, the line between unfairness and policy may become blurred.
However, notwithstanding the above remarks, it is well accepted that whilst reliability is important, fairness is not limited to questions of reliability.[66]
[65] R v Swaffield (1998) 192 CLR 159 at [53]-[54] (footnote original).
[66] B Selway, “Principle, Public Policy and Unfairness – Exclusion of Evidence on Discretionary Grounds” (2002) 23 Adelaide Law Review 1 at 4. See Duke v The Queen (1989) 180 CLR 508 at 513 (Brennan J).
Given that the unfairness discretion is a general discretion, based upon the general, yet fundamental principle that an accused person has the right to a fair trial, and does not arise from any more specific principle, it is difficult to be prescriptive regarding its operation. As the discretion is of broad and general application, and is open to adaptation “to changing circumstances as well as evolving community values”,[67] it follows that it lacks precision. As is clear from the above discussion of the authorities, the discretion is not limited to circumstances of police impropriety, nor is it limited to evidence that is deemed unreliable.
[67] R v Swaffield (1998) 192 CLR 159 at [131] (Kirby J).
Cross on Evidence describes a “residual” discretion to reject any evidence if the strict rules of admissibility would operate unfairly against the accused.[68] In other words, it is within the discretion of a court to reject evidence on the ground that to receive it would be unfair to the accused, in the sense that the trial would be unfair.
[68] J D Heydon (ed), Cross on Evidence (7^th ed, 2004) at 353-354.
The foregoing High Court decisions support the existence of a discretion available to the Chief Magistrate to exclude the evidence of the breath analysis in the present case.
The Chief Magistrate in the present case had a discretion to exclude otherwise admissible evidence. That discretion could be enlivened by circumstances of unfairness or by reason of matters of public policy or by a combination of both.
Before coming to discuss whether the Chief Magistrate’s discretion miscarried in the present case, it is convenient to address the decision of Lobban.
As is apparent from earlier observations in these reasons, the analysis of Toohey, Gaudron and Gummow JJ in Swaffield supports the existence of a discretion in the court to exclude otherwise admissible evidence and that that discretion may be enlivened by a variety and combination of circumstances. As earlier discussed, although at times separate discretions have been identified, there is now recognised a general discretion enlivened by different categories of circumstances. No doubt new circumstances, yet unforeseen, will arise that are said to enliven this general discretion.
In Lobban, Martin J, with whom Doyle CJ and Bleby J agreed, considered that King CJ in French v Scarman had applied principles applicable to the public policy discretion rather than those applicable to the exercise of a general discretion based upon considerations of unfairness to the accused. Martin J reasoned:[69]
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.
[69] R v Lobban (2000) 77 SASR 24 at [39]-[41].
In French v Scarman, King CJ took the view that there was such a close connection between the breathalyser reading and the circumstances pertaining to the improper conduct that the public policy discretion was enlivened. King CJ considered that the improper behaviour occurred immediately after the breathalyser reading with the consequence that the police were not able to rely on the breathalyser significant in the prosecution of the charge.
The Solicitor-General submitted that King CJ was correct in French v Scarman in his analysis and application of Bunning v Cross. The exercise of discretion was appropriate to the circumstances by reason of the close temporal connection between the police misconduct and the breath analysis that had been obtained. It was contended that the Lobban analysis of King CJ should be rejected.
This submission should be accepted. As a matter of principle, there is no reason why public policy considerations should not lead to the exclusion of otherwise admissible evidence. I see no valid basis for the criticism of the reasoning of King CJ. The argument that the improper conduct took place after the obtaining of the evidence does not eliminate the need for curial disapproval of the police conduct on public policy grounds. This accords with the view taken by Chernov and Eames JJA in DPP v Moore. Chernov JA observed:[70]
It seems to me, however, that situations such as those in this case and in French v Scarman are altogether different. In this case, there was such a close connection between the breathalyser reading and the circumstances pertaining to the improper conduct that the public policy discretion could be said to have been enlivened. The statutory right given to the respondent by s 55(10) of the Act was, as King CJ recognised in French v Scarman, closely connected with the obligation to submit to the breathalyser test. Furthermore, the improper behaviour occurred immediately after the breathalyser reading was obtained and it had the consequence of enabling the police to rely only on the breathalyser certificate in the prosecution of charge 1 and to avoid the prospect of having to lead evidence of blood test results which might have contradicted the reading that was produced in the certificate. Moreover, if a blood test had been taken, the respondent might have given notice to Senior Constable Steele pursuant to s58(2) of the Act to attend court in which case, of course, the certificate would not have constituted conclusive proof of the respondent’s blood alcohol content.
Thus, I remain of the view that, in the circumstances of this particular case, the public policy discretion was enlivened (and, as I have said, the magistrate did not relevantly err in excluding the certificate from the evidence in the exercise of her discretion). (emphasis original)
Eames JA commented:[71]
In French v Scarman King CJ concluded that the discretion in Bunning v Cross should be applied because, although the improper conduct in that case occurred after the breath analysis evidence had been obtained, the safeguard of the blood test “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”. In that case the police were obliged to advise the driver of his right to a blood test once the breath test had concluded. In the present case no such obligation was imposed but, by s 55(10) if the driver “immediately” after the breath test requested a blood test then it had to be facilitated. Despite those differences in the legislative regimes, for the reasons stated above I consider that the analysis of King CJ is equally applicable in this case in explaining why the public policy discretion applied. To that extent, I am therefore at odds with the conclusion reached by the court in Lobban.
I agree with their Honours’ reasoning and conclusions.
[70] DPP v Moore (2003) 6 VR 430 at [56]-[57].
[71] DPP v Moore (2003) 6 VR 430 at [91] (footnotes omitted).
The Solicitor-General further submitted that an issue on the present appeal was whether an inability to adduce evidence rebutting the statutory presumption, which is not connected to any impropriety or unlawfulness on the part of the police, enlivens the unfairness discretion to exclude otherwise admissible evidence. In the Solicitor’s submission, it does not. The submission seeks to limit the long established discretion of a criminal court to reject otherwise admissible evidence because of unfairness. Properly understood, this submission is far-reaching and seeks to limit the pronouncements of the High Court in such cases as Jago, Driscoll, Van Der Meer, Harriman, Dietrich and Swaffield. It does so by characterising the respondent’s position in the present proceedings as not giving rise to any “unfairness at law”.
The Solicitor General further submitted that the general unfairness discretion does not extend to the exclusion of real evidence in the present case as the unfairness was said only to arise from the loss of a statutory procedural right. The Solicitor contended that the general unfairness discretion to exclude evidence does not extend to circumstances where a procedural right alone is compromised.
These submissions should be rejected. The discretion to reject otherwise admissible evidence on grounds of unfairness is well established. In Swaffield, Toohey, Gaudron and Gummow JJ identified that the purpose of the unfairness discretion was to protect the rights and privileges of the accused including procedural rights. Their Honours observed:[72]
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.
[72] R v Swaffield (1998) 192 CLR 159 AT [78].
In Lobban, Martin J discussed three discretions. One he referred to as the public policy – or Bunning v Cross discretion. Another, Martin J referred to as the general discretion being the discretion discussed by the High Court in Swaffield. Martin J concluded that this discretion did not apply to real evidence and was confined to confessional evidence. However, Martin J opined that in addition to the unfairness discretion, there was another discretion, which he described as the “general unfairness discretion” and which, in his view, applied to evidence in any and all forms.
However, as Bradley Selway QC commented:[73]
Apart from attempting to justify the approach that had been previously taken in Police v Jervis this creation of another species of unfairness discretion seems an unnecessary complication. This is particularly so when the new general unfairness discretion would seem to be indistinguishable from that as it applied to confessional evidence prior to the decision in R v Swaffield.
The clearer view is that there is but one unfairness discretion. However, it is a flexible discretion, and its application will depend upon the circumstances.
[73] B Selway, “Principle, Public Policy and Unfairness – Exclusion of Evidence on Discretionary Grounds” (2002) 23 Adelaide Law Review 1 at 7.
Although the unfairness discretion has been developed in the context of confessional evidence, there is no reason why it should be so restricted. Once it is accepted that the discretion flows from the inherent requirement that criminal trials be fair, supported as it is by the power of an appeal court to set aside a verdict or conviction that is unfair, then it necessarily follows that the discretion must apply to all evidence and also to procedure.
Unreliability
Unreliability has been treated by the courts as important when considering the discretion to exclude otherwise admissible evidence. Much of the discussion has taken place when addressing the admissibility of confessions. Other examples include the discretion to exclude accomplice evidence and in the debate about limiting the right of cross-examination, in the course of alleged sexual offending. The underlying principles evident in these authorities are of assistance to the present proceedings.
In the present case, the suggested basis for the exercise of the discretion to exclude the evidence of the breath analysis reading, was that its reception would be unfair to the accused in the sense that the trial would be unfair. The unfairness was said to arise from the unreliability of the breath analysis evidence. Unreliability was not said to mean the inaccuracy of the evidence. It was contended that unreliability was a reference to potential unreliability brought about by the inability to test or check the accuracy of the reading.
In Dietrich, Gaudron J said that evidence might be excluded[74]
because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury.
[74] Dietrich v The Queen (1992) 177 CLR 292 at 363 (footnotes omitted).
In Rozenes v Beljajev,[75] when dealing with the discretion to exclude the evidence of an accomplice, the Victorian Court observed:[76]
In the present case the suggested basis of exclusion is the discretion to exclude evidence on the ground that its reception would be unfair to the accused in the sense that the trial would be unfair, and the unfairness is said to exist by reason of the unreliability of the evidence having regard to the strong motive which the accomplice has for falsely implicating the accused in the offence charged. “Unreliability” for this purpose does not mean the actual falsity or inaccuracy of the evidence: it means the risk or probability that, by reason of the position of the accomplice, his evidence will be false or inaccurate. “Unreliability” means what has been described by the High Court as “potential unreliability” on a number of occasions in considering whether the position of a witness required that a warning about corroboration, or some similar warning, be given. See Bromley v R (1986) 161 CLR 315 at 319 per Gibbs CJ (“potentially unreliable”); Pollitt v R (1992) 174 CLR 558 per Deane J at 586 (“liable to be unreliable”; “prima facie unreliability”) and 587 (“potential unreliability”); per Dawson and Gaudron JJ at 599 (“potentially unreliable”); per Toohey J at 605 (“potentially unreliable”); per McHugh J at 614 (“potentially unreliable”).
“Unreliability” of evidence is a matter of degree: almost all evidence is, we suppose, unreliable in the sense that there is a risk or probability that it will not be accurate in every respect. The expression is used in the cases dealing with warnings to be given to juries to convey that the evidence in question is unreliable to what might be called an uncommon degree.
[75] Rozenes v Beljajev [1995] 1 VR 533.
[76] Rozenes v Beljajev [1995] 1 VR 533 at 549-550.
In NRC,[77] Charles JA in the context of a discussion about rights of cross-examination in alleged sexual offending matters observed:[78]
[77] NRC [1999] 3 VR 537.
[78] NRC [1999] 3 VR 537 at 560-561.
... The right of an accused to receive a fair trial according to law is a fundamental element of the criminal justice system in Victoria: Jago v District Court (NSW) (1989) 168 CLR 23 at 29, 56, 72 and 75; Dietrich v R (1992) 177 CLR 292 at 299, 326, 353 and 362. A natural assumption is that Parliament intended by s 37B(4) to preserve the existence of a discretion in a court to exclude evidence of this kind at least in so far as necessary to ensure a fair trial. Relevant for present purposes is, first, the discretion to exclude evidence where its prejudicial effect exceeds its probative value and, secondly, the residual discretion to reject any evidence if the strict rules of admissibility would operate unfairly against the accused. Cross on Evidence, 5^th Australian edition, (1995), gives in para. 11125, as an example of the latter, the case where the weight and credibility of the evidence cannot be tested at the same time observing that the unreliability of a witness has been held not to attract the discretion on the ground that this would interfere unduly with the division of function between judge and jury. See, eg Rozenes v Beljajev [1995] 1 VR 533 at 556-7.
…
Pattenden, Judicial Discretion and Criminal Litigation, 2^nd ed, (1990), at p 233 also says that:
“Evidence is prejudicial ... if there is a real risk that it will contribute to an erroneous verdict, either because its weight and credibility cannot be effectively tested by the defence or because it may be misused by the jury.
In Rozenes v Beljajev, Brooking, McDonald and Hansen JJ, after quoting both these observations, said at 557 that:
“It is the inability to cross-examine that may in all the circumstances of a given case cause the statement to be excluded in the interests of a fair trial. It may be possible to bring the example, as Pattenden would, within the ‘prejudice outweighing probative value’ principle, but we are disposed to think it is better to say that, if such a statement is excluded, this is done to secure a fair trial.”

In the present case, the right or opportunity to have a blood test was of critical importance. This was the only way in which the charge could be defended. If circumstances arise where through no fault of his own a defendant is unable to exercise the right to a blood test and thereby test the breath analysis reading, it can be seen that a relevant unfairness may arise. Effectively, there can be no trial of the issue. The statutory safeguard has become illusory.
The artificiality of the presumed accuracy of the breath analysis equipment and of the other presumptions were the subject of comment by Martin J in Singh v Police:[79]
Section 47G(1a) must be considered in the context of the overall scheme of the drink-driving provisions in the Act. Parliament has taken the view that strict measures of control and ease of proof for the prosecution are required because of the prevalence of drinking and driving and the disastrous consequences that ensue. For the purposes of the drink-driving provisions, parliament has required the courts to attribute an artificial accuracy to the readings given by the breath analysing instruments. The artificial nature of the scheme is well demonstrated by the presumption that, for up to 2 hours preceding the analysis, the concentration of alcohol indicated by the breath analysing instrument was present in the blood throughout that period.
In the context of that scheme, parliament has sought to ameliorate the strict operation of the provisions and to ensure that a defendant has the capacity to rebut the artificial presumption in specified circumstances. As an ameliorating provision, in my opinion, it should not be subjected to an unduly restrictive interpretation adverse to a defendant in respect of the issue now under consideration. Parliament was not concerned with whether the sample of blood upon which a defendant might seek to rely in rebutting the presumption was taken compulsorily or voluntarily. The fact that the blood was taken voluntarily does not mean that it was not “taken and dealt with in accordance with s 47I”. The purposes of the legislature are achieved if either procedure is followed.
[79] Singh v Police (2000) 31 MVR 279 at [21]-[22].
The Solicitor General further submitted that the mere inability to rebut the statutory presumption created by section 47G(1) of the Road Traffic Act did not, of itself, create any unreliability or a risk that the respondent might be improperly convicted. The Solicitor argued that cases where, for example, blood is not taken because the motorist is not well enough to give it or because the motorist cannot afford to have blood taken privately, do not involve any unfairness in the relevant sense.
The Solicitor emphasised that all previous cases where evidence tendered pursuant to section 47G(1) had been excluded had involved a failure by a police officer, doctor or nurse to comply with a statutory requirement. For example, in Police v Erwin, a nurse had failed to deliver the blood sample to the driver. In Ujvary v Medwell, a police officer failed to facilitate a blood test by saying that the defendant would not be brought home. French v Scarman involved police failure to facilitate a blood test. In Burton v Police, a police officer made a statement that detracted from the prescribed advice to obtain a sample promptly and in Robin v Police, the driver was not given a blood sample.
The Solicitor argued that in this case there was no relevant unfairness because the opportunity to have a blood test was provided and that it was of no relevance or consequence that the defendant went to a public hospital that did not have the facilities at the time to arrange for a blood sample to be taken in accordance with the statutory scheme. It was argued that the respondent could have attended elsewhere for the sample to be taken and that relevantly there was no unfairness.
These submissions should be rejected. They overlook the practical reality that the statutory safeguard had been rendered nugatory and that the defendant had, through no fault of his own, been unable to test the reliability of the breath analysis.
The importance of the blood test and its intrinsic superiority to a breath analysis test was discussed by King CJ in Evans v Benson: [80]
The suggestion was canvassed during argument that this result might be avoided by construing subs (1a) as carrying with it the implication that any variation between the result of the blood analysis and that of the breath analysis would be sufficient to displace the presumption. I feel no difficulty in accepting as an implication of subs (1a), that the result of the blood analysis is to be accepted as intrinsically superior to the result of the breath analysis. But to hold that any variation would ipso facto displace the presumption would produce the absurd result in practice that the presumption would be displaced in almost every case in which there was a blood analysis. The result of the blood analysis will differ from the result of the breath analysis in almost every case if only for the reason that the blood test is necessarily made at a different time. It is clear to my mind that that is not what Parliament intended. If Parliament intended that the force of the presumption was to cease upon an analysis of a blood sample being made, it would have been easy to say so. The evident intention disclosed by the subsections is that the presumption is displaced if, and only if, the result of the blood analysis, aided by a conclusive presumption as to the intrinsic superiority of a blood analysis as the means of determining the quantity of alcohol in the blood, proves the result of the breath analysis to be wrong in the sense of having indicated a concentration which is higher than the actual concentration. The "contrary" which must be proved by the defendant to displace the presumption is not a mere difference between the result of the breath test and the actual concentration as indicated by the blood analysis, properly interpreted, at the time of the breath test, but a difference which indicates that the actual concentration, so indicated, at the time of the breath test, was lower than that indicated by the breath analysis instrument. If the concentration indicated by the breath analysis is lower than the actual concentration, as indicated by the blood test properly interpreted, at the time of the breath test, the relevant "contrary" has not been proved and the presumption stands as to the concentration indicated by the breath analysis instrument.
[80] Evans v Benson (1986) 46 SASR 317 at 320-321.
King CJ returned to this issue in Shearer v Hills in an authoritative analysis that is of equal force today:[81]
The results of a test made by means of a scientific instrument are admissible at common law if there is expert evidence to explain the function of the instrument and to vouch for its accuracy: Philpott v Boon [1968] Tas SR 97 per Burbury CJ at 99-100; Mehesz v Redman (No 2) (1980) 26 SASR 244 esp at 246. There was no such evidence before the magistrate in the present case. If an instrument, however, is one of a class which is so well known that its accuracy may be assumed as a matter of common experience, the court is entitled to presume its accuracy without evidence: Porter v Kolodzeij [1962] VR 75; Barker v Fauser [1962] SASR 176; Skalde v Evans [1966] SASR 176; Mehesz v Redman (No 2) (supra) at 247-248. Judicial notice is taken of the accuracy of such an instrument. The Solicitor-General contended that the time had come to include breathalysers in that class of instrument. This issue was discussed but not decided in State Government Insurance Commission v Whyatt (1984) 37 SASR 454. The Solicitor-General conceded that his researches had failed to disclose any case here or elsewhere in which the breathalyser had been accorded that status. He argued, however, that there has now been over 20 years experience in this State of the use of breathalysers with parliamentary sanction and that there is now sufficient familiarity with them to justify judicial notice of their accuracy. I am far from persuaded by this argument. I find no clear indication in the Road Traffic Act that Parliament has been prepared to vouch for the accuracy of the breathalyser.
On the contrary the provisions of s 47g itself tend to suggest that Parliament regards blood analysis as producing a more accurate result than breath analysis by means of the breath analyser: see Evans v Benson (1986) 46 SASR 317 at 320. To my mind the place which the breathalyser occupies in the legislative scheme does not necessarily imply any vouching on the part of the legislature for the accuracy of the breathalyser, but is just as readily explicable on the footing that the legislature has found it necessary to sanction the use of the breathalyser and to validate its results irrespective of precise and consistent accuracy in order to combat the notorious social evil of drink driving. I would be unwilling in my present state of knowledge to take judicial notice of the supposed accuracy of the breathalyser result. I am aware of controversy over the years as to the accuracy of the instrument. Contentions have been raised in this Court disputing the accuracy of the instrument. Expert evidence was adduced in one case as to the alleged effect of radio interference from passing motor vehicles on the operation of the instrument, Evans v Benson (supra). The report of Richardson v Fingleton (1980) 24 SASR 511 at 516 discloses that expert evidence was given in that case the effect of which was described as follows:
"The effect of his evidence was that there was likely to be an error in any breathalyser test and he said that "for a reading of .155 there is only a 5 per cent chance or probability that the true value would be below .141 per cent but further there is only a 5 per cent chance that the true value would be above .169 per cent. In other words there is a 95 per cent chance that the actual blood alcohol level lies somewhere between .141 per cent and .169 per cent"."
I draw attention also to the evidence challenging the accuracy of the breathalyser given in Lamb v Morrow [1986] VR 623 and Miles v Gilmore [1989] VR 413. Contentions based upon such evidence have been stifled in this Court by the conclusive nature of the legislative presumption. I have no knowledge as to whether there is substance in such questioning of the accuracy of the breathalyser. I cannot ignore, however, the existence of such views. I do not believe that it can be said with truth that the breathalyser has become an instrument whose accuracy may be assumed as a matter of common experience so that judicial knowledge may be taken of it. I think that it remains in the class of instruments whose function and reliability would have to be proved by evidence if its results were to be admitted into evidence on common law principles.
[81] Shearer v Hills (1989) 51 SASR 243 at 247. See also Police v Jelinek (1998) 200 LSJS 441 at 448-449, Singh v Police (2003) 31 MVR 279 at [21].
This was a case where the respondent sought to genuinely and responsibly follow the advice he was given. Although it was pointed out to him that he might go to a hospital or a doctor of his choice, his decision to attend at the major Adelaide public hospital was an entirely appropriate course to follow. The citizen would think that this was the ordinary course to be followed. Once at that hospital, he could not be criticised in the circumstances for not attending elsewhere.
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 the 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.
Conclusion
For these reasons this appeal should be dismissed.
VANSTONE J: I have had the advantage of reading the reasons for decision of the Chief Justice (including the Addendum) and of Bleby J and Gray J.
I agree with the reasons given by the Chief Justice. I too would allow the appeal, set aside the Magistrate’s order and remit the matter for further consideration.
I add these comments. In my view the criticism to which French v Scarman was subjected in Lobban was unwarranted. I think the decision in French v Scarman represented a modest and appropriate amplification of the notion of illegally obtained evidence.
Second, in relation to what Martin J referred to in Lobban’s case as the “general unfairness discretion” and the request of the Solicitor-General now to reconsider that subject, I make these observations.
In my view this case illustrates the very limited role such a discretion could play where the evidence sought to be excluded is real evidence. Real evidence is not intrinsically unreliable. Of course it may be of limited probative value (which might lead to exclusion on the basis of it being more prejudicial than probative) and it might give rise to competing inferences. Even where the evidence is said to be unreliable, perhaps through some deterioration of the “thing” in issue – R v Clarke providing an example of such a case – there seems to be no justification to deny the jury its usual role of evaluating it, having regard to its limitations. Where there is an impropriety associated with the obtaining of such evidence, and a consequent impact on the defendant’s “procedural rights”, it would seem that the defendant’s stronger argument, and the more suitable context in which to consider it, would likely be the Bunning v Cross discretion.
Accordingly, in my respectful opinion, there may be a real question as to whether in Lobban’s case Martin J sketched the scope of this residual discretion too widely. But in Lobban Martin J would not in any event have exercised that discretion and the outcome of the case would not therefore have differed.
The ambit of the circumstances enlivening the exclusionary discretions is not susceptible to precise definition and, moreover, continues to evolve. I do not think that this case provides 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.

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.