Police v Jervis; Police v Holland No. Scgrg-97-1415, Scgrg-97-1483 Judgment No. S6596
[1998] SASC 6596
•20 March 1998
POLICE v JERVIS
POLICE v HOLLAND
FULL COURT: Doyle CJ, Matheson and Prior JJ
DOYLE CJ
Introduction
The Court has before it two appeals. Each appeal raises the same two questions. The first is a question of the availability of a statutory presumption as an aid to proof of guilt of an offence. The second raises the discretion of a court to exclude evidence, otherwise admissible, of the reading given by a breath analysis instrument.
In the appeal by Ms Jervis ("the first appeal"), the first question is this. Is it to be presumed that the concentration of alcohol, indicated as being present in the blood of the defendant by a breath analysing instrument, was present at the time of the breath analysis? The question is to be answered on the basis that the requirements and procedures, imposed upon members of the police force, in relation to breath analysing instruments and breath analysis were complied with, but that a blood sample that the defendant wished to have analysed was not dealt with in accordance with the procedures prescribed by Regulation; that non-compliance occurring as a result of conduct for which neither a member of the police force nor the defendant was responsible. In the appeal by Mr Holland ("the second appeal") the first issue arises in a similar way. The issue is whether the presumption operates when, as a result of inappropriate advice given by an assistant to the person whom the defendant wished to take a sample of blood, the defendant desisted from having a sample of blood taken.
The discretion question which arises in each appeal is the same question. It is whether, assuming the operation of the presumption that the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument was in fact present at the time of the analysis, the court nevertheless has a discretion to exclude evidence of the breath analysis reading, upon which the presumption rests, because of the irregularity (that is a convenient term to indicate what happened in each case) that subsequently occurred in relation to the taking of a blood sample.
The Legislation and the Regulations
Section 47G of the Road Traffic Act ("the Act") is a well known provision relating to proof of the concentration of alcohol present in the blood of a person, the proof being by means of a reading indicated by a breath analysing instrument. The section provides for the admissibility of evidence of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument (as defined by the Act) when operated by an authorised person. The section provides for proof of these matters by certificate.
The section also establishes a presumption, in the absence of proof to the contrary, that the concentration of alcohol indicated by the breath analysing instrument is the concentration present in the blood of the defendant at the time of the analysis. It specifies the procedures to be followed before that presumption arises. It provides for proof of compliance with those statutory procedures by the tender of certificates.
The section strictly limits the evidence that can be adduced by a defendant to rebut that presumption. In the appeals in question, the only way in which either defendant could rebut the presumption was by having a sample of blood analysed in accordance with procedures prescribed by Regulation.
For present purposes it suffices to set out subsections (1), (1a), (1ab), (2), (2a), (4) and (8). None of the other sub-sections of section 47G are directly relevant to these appeals. The subsections in question provide 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."
"(1ab) If it is proved in proceedings that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis, it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood throughout the period of two hours immediately preceding the analysis."
As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying -
(a) the concentration of alcohol indicated by the analysis to be present in the blood expressed in grams in 100 millilitres of blood; and
(b) the date and time of the analysis.
"(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."
Subject to subsection (6) a certificate purporting to be signed by an analyst, certifying as to the concentration of alcohol, or any drug, found in a specimen of blood identified in the certificate expressed in grams in 100 millilitres of blood is, in the absence of proof to the contrary, proof of the matters so certified."
A prosecution for an offence will not fail because of a deficiency of a kit delivered to the defendant in purported compliance with subsection (2a)(b) and the presumption under subsection (1) will apply despite such a deficiency unless it is proved -
(a) that the defendant delivered the kit unopened to a medical practitioner for use in taking a sample of the defendant’s blood; and
(b) by evidence of the medical practitioner, that the medical practitioner was, because of a deficiency of the kit, unable to comply with the prescribed procedures governing the manner in which a sample of a person’s blood must be taken and dealt with for the purposes of subsection (1a)."
Regulations have been made under section 47G (2a). They are the Road Traffic (Breath Analysis and Blood Test) Regulations 1994 ("the Regulations").
Regulation 4 prescribes the oral advice and written notice referred to by section 47G (2a) (a) of the Act. It is not necessary to set out the terms of the oral advice or the terms of the written notice. Suffice it to say that each of them outlines the procedure that a defendant may follow. Each of them specifically refers to the ability of the defendant to have a sample of blood taken and analysed. Each of them refers to the right of the defendant to receive one of two containers of blood taken from the defendant. Assuming that the advice is understood, it amounts to a convenient summary of the defendant’s rights.
Regulation 6 is the critical Regulation for present purposes. It sets out the procedures to be followed if a defendant is to have a blood sample analysed.
Section 47I of the Act, referred to in section 47G (1a)(a), can be put to one side for present purposes. That deals with the compulsory taking of blood from persons admitted to hospital after an accident, and the analysis of such blood. It imposes a duty upon a medical practitioner, attending such a person, to take a sample of blood for analysis. In neither of the present cases was the defendant admitted to hospital.
Regulation 6 provides as follows:-
The following are the prescribed procedures in accordance with which a sample of a person’s blood must be taken and dealt with for the purposes of section 47G(1a) of the Act:
(a) the person must cause the sample to be taken by a medical practitioner of the person’s choice and must deliver the blood test kit supplied to the person under section 47G(2a)(b) to the medical practitioner for use for that purpose;
(b) the medical practitioner by whom the sample of the person’s blood is taken must place the sample, in approximately equal proportions, in two containers (being the containers provided as part of the blood test kit);
(c) each container must contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood and the sample of blood taken by the medical practitioner must be such as to furnish two such quantities of blood;
(d) the medical practitioner must seal each container by application of the adhesive seal (bearing an identifying number) provided as part of the blood test kit;
(e) it is the duty of the medical practitioner to take such measures as are reasonably practicable in the circumstances to ensure that the blood is not adulterated and does not deteriorate so as to prevent a proper assessment of the concentration of alcohol present in the blood of the person from whom the sample as taken;
(f) the medical practitioner must then complete a certificate in the form set out in schedule 3 (being a form provided as part of the blood test kit) by inserting the particulars required by the form;
(g) the certificate must be signed by the medical practitioner certifying as to the matters set out in the form;
(h) the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner;
the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with one of the sealed containers containing part of the blood sample;
(j) a copy of the signed certificate must be delivered by the medical practitioner together with the other sealed container containing part of the blood sample to a member of the police force who must, in turn, deliver that copy of the certificate and the blood sample container to State Forensic Science;
(k) the blood sample container and copy of the certificate referred to in paragraph (j) must not be delivered into the possession of the person from whom the sample was taken;
(l) on receipt of the blood sample container and certificate at State Forensic Science, the blood in the container must be analysed as soon as reasonably practicable by or under the supervision of an analyst to determine the concentration of alcohol present in the blood expressed in grams in 100 millilitres of blood;
(m) the analyst must then complete and sign a certificate as to the following matters:
the date of receipt at State Forensic Science of the blood sample container and the certificate accompanying the blood sample container;
the identifying number appearing on the adhesive seal used to seal the blood sample container;
the name and professional qualifications of the analyst;
the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood;
any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
any other information relating to the blood sample or analysis or both that the analyst thinks fit to include;
(n) the analyst’s certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person’s address on the certificate accompanying the blood sample container;
(o) a copy of the analyst’s certificate must be sent to or retained on behalf of the Minister;
(p) a copy of the analyst’s certificate must also be sent to the Commissioner of Police;
(q) the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood."
Facts
In the first appeal the defendant’s breath was analysed by a breath analysing instrument. The result of the analysis was a reading of 0.188 grams of alcohol in 100 millilitres of blood. It is common ground that the breath analysis was properly conducted by the police officer concerned. It is common ground that the police officers involved complied with all statutory requirements applicable to them, including the giving of the prescribed oral advice and the delivery of the prescribed written notice. The defendant requested, and was given an approved blood test kit. The defendant took the blood test kit to a medical practitioner, a blood sample was taken and the blood sample was placed in the two containers provided. Its suffices to say that the medical practitioner complied with each of the requirements in Regulation 6 as far as and including sub-regulation (h).
However, the medical practitioner did not deliver the original of the signed certificate to the defendant, nor did the medical practitioner deliver to the defendant one of the sealed containers containing part of the blood sample. The medical practitioner did not comply with sub-regulation (i).
I gather that the medical practitioner did deal with one of the sealed containers in accordance with sub-regulation (j) and the following sub-regulations. The departure from the scheme prescribed by Regulation 6 was confined to sub-regulation (i). That meant, of course, that the defendant did not receive a blood sample which the defendant was at liberty to have analysed if she so wished: see Regulation 6(q). On the other hand, a sample of the defendant’s blood was analysed by State Forensic Science. What the defendant lost was the chance to have her blood analysed by a person of her own choice, and to use that analysis, if favourable, to rebut the presumption under s47G(l): see Regulation 6(q). She also lost the chance to check the analysis carried out by State Forensic Centre. However, as a certificate relating to that analysis was not tendered, that is of no practical significance.
In the second appeal, the defendant’s breath was analysed by a breath analysing instrument. On this occasion, the concentration of alcohol indicated as being present was 0.080 grams of alcohol in 100 millilitres of blood. The findings of the magistrate indicate or imply that all statutory requirements were complied with by the police officers concerned. Again, the defendant requested and was provided with an approved blood test kit.
The defendant went to Modbury Hospital with a view to having a sample of blood taken. The magistrate appears to have accepted evidence from the defendant that a nursing sister, who was involved in the taking of the sample of blood from the defendant, said to the defendant something like:-
"Just off the record, every blood test taken is a lot higher than what you blow."
The defendant understood that to mean that the result of an analysis of his blood would be a concentration of alcohol higher than that indicated by the breath analysing instrument. The magistrate found that, influenced by that comment, the defendant decided not to have a sample of blood taken. The result of that was that the defendant lost the opportunity to have his blood analysed.
In the case of Ms Jervis it was argued before the magistrate that the evidence of the concentration of alcohol indicated as being present in the blood of the defendant by the breath analysing instrument was inadmissible, because of the irregularity in question. That submission was apparently rejected. It was not pursued before the Court.
Before this Court it was argued that, by reason of the same irregularity the statutory presumption did not arise.
In each case it was argued that the irregularity gave rise to a discretion on the part of the magistrate to exclude the evidence, in the form of the reading from the breath analysing instrument, as to the concentration of alcohol in the defendant’s blood. In each case the magistrate held that such a discretion arose, excluded the evidence and found the defendant not guilty.
In each case the prosecutor has appealed, and the appeal has been referred to the Full Court.
The Statutory Scheme
It is convenient to begin with some remarks about the statutory scheme relating to breath analysis, and with a reference to some of the decided cases. For present purposes I assume a basic familiarity with the legislative scheme.
When considering the decided cases, it is necessary to bear in mind that section 47G, and other provisions relating to breath analysis, have been amended from time to time. It is necessary to take account of the form of the relevant provision at the time it was considered in a decided case.
Section 47G(1) has two main aspects. First, it renders admissible evidence of a reading obtained from a breath analysing instrument. That reading is a reading indicating the concentration of alcohol present in the blood of a person. Secondly, the sub-section creates a statutory presumption that that concentration of alcohol was present in the blood of the person at the time of analysis. In other words, unless the statutory presumption is rebutted, there is no need for the prosecution to prove how the breath analysing instrument operates, nor to prove the relationship between a measurement of alcohol in the breath of a person and alcohol in the blood of a person.
If the presumption under section 47G(1) arises, and is not rebutted, a conclusive presumption arises under sub-section (1ab) thereof. This sub-section was enacted in 1995. That conclusive presumption enables a link to be made between the result of the breath analysis and an event, such as the driving of a motor vehicle, during the period of two hours immediately preceding the breath analysis. A somewhat similar presumption arises under section 47B(2). It is not necessary in this case to consider the relationship between the two presumptions.
From 1972 until 1979 the presumption under section 47G(1) was available:
"... where the provisions of sub-section (2) of this section have been complied with ..."
Sub-section (2) is in substantially the same form now as it was in 1972.
In 1979, section 47G(1) was amended. Since that time, the presumption has been available:
"... where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including sub-sections (2) and (2a), have been complied with ..."
Sub-section (2a) was first introduced in 1979, when the amendment just mentioned was made. At that time it provided as follows:
"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."
Sub-section (2a) has been amended since that time. It is set out in its present form earlier in this judgment.
In Taylor v Daire (1982) 30 SASR 453, the Full Court held that the availability of the presumption under section 47G(1) depended upon compliance with "... the requirements and procedures in relation to breath analysing instruments and breath analysis ...". By the time of that decision, those words had been added to section 47G(1). On this point, King CJ said at 463:
"What is clear is that the operation of the statutory presumption as to the correspondence of the breath analysis reading with the concentration of alcohol actually present in the blood at the relevant time, depends upon compliance with the prescribed procedures including the procedures as to blood tests prescribed in ss.47f and 47g(2a)."
At that time, sub-section (2a) was in its original form. On the same point, Wells J said at 473:
"In short, whether or not the prosecution will be able to rely on the presumption will depend exclusively upon whether it can be proved that the police officers concerned obeyed the injunction laid on them by sub-section (1) of section 47g to comply with the requirements and procedures in relation to breath analysing instruments and breath analyses under the Act - in particular, sub-sections (2) and (2a) (supra)."
It was not suggested by either counsel before us that Taylor v Daire (supra) was wrongly decided. The terms of section 47G(1) have not changed since it was decided. Sub-section (2a) has been amended since then, as has section 47F.
I proceed on the basis that, in the cases under appeal, the statutory presumption is available only if the relevant "requirements and procedures" have been complied with. However, it remains necessary to identify those requirements and procedures: cf. Weerts v Daire (1982) 32 SASR 270 at 284 Legoe J; Eubel v Martin (1982) 57 SASR 290 at 299 Bollen J; Capasso v Police (1996) 66 SASR 365 at 395 Lander J; (1997) 190 LSJS 126 Full Court. In particular, it will be necessary to return to the question of whether the procedures prescribed by Regulation 6 of the Regulations are "requirements and procedures" referred to by section 47G(1).
For the moment, I say no more about the availability of the statutory presumption. I now turn to the issue of the discretion to exclude evidence of the reading indicated by a breath analysing instrument.
In French v Scarman (1979) 20 SASR 333 the Full Court considered section 47G as it stood before section 47G(1) was amended as described above. I repeat that at that time section 47G(1) referred only to compliance with the provisions of sub-section (2).
At that time, section 47F of the Act was in a substantially different form. It provided as follows:
"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.
(3) A sample of blood taken by a medical practitioner in accordance with a request under subsection (1) of this section shall be divided by that practitioner into approximately two equal parts and placed in sealed containers of which -
(a) one shall be handed to the member of the police force present at the taking of the sample;
and
(b) one shall be retained by the medical practitioner and dealt with in accordance with the directions of the person from whom it was taken.
Nothing in this section contained shall absolve a person from the obligation imposed on him by subsection (3) of section 47e of this Act."
It can be seen that section 47f, as it then stood, imposed an obligation upon the relevant member of the police force to "facilitate the taking" of a blood sample. The sample had to be taken in the presence of a member of the police force. The section anticipates that the member will remain while the sample is divided into two equal parts. But, at the relevant time, the operation of s47G was not expressed to depend in any way upon compliance by a member of the police force with the requirements of section 47F.
It is convenient to mention here that section 47F (it is no longer section 47f) is now in a substantially different form. The obligation imposed upon a member of the police force to facilitate the taking of a blood sample has been done away with, except in one specified situation. What is required now in the usual case is the provision of information under section 47G(2a) and the provision of a blood test kit. Regulation 6 can be seen as in some senses the successor of section 47f, but a member of the police force has no part to play in the procedures prescribed by regulation 6, nor would any of them ordinarily occur in the presence of a member of the police force. Regulation 6(j) provides for delivery of the sample to a member of the police force, but that could be done without the member being present at any of the preceding steps.
In French v Scarman (supra) a person required to submit to a breath analysis requested that a sample of his blood should be taken by a medical practitioner. On the findings of the magistrate, although that request was made, the member of the police force to whom the request was made did nothing to facilitate the taking of the blood sample. As King CJ later said in Taylor v Daire (1982) 30 SASR 453 at 463, with reference to the position when French v Scarman (supra) was decided:
"The sections did not then provide for any consequence to flow from failure of the police to comply with section 47f."
In French v Scarman (supra) the Full Court held that although the breath analysis was lawfully and properly administered, and the reading lawfully and properly obtained, a discretion arose under which the court had power to exclude evidence of the reading, because of the failure of the member of the police force to comply with the requirements of section 47f. King CJ described the provisions of section 47f as a "safeguard" (at 337). A little later he said, again referring to section 47f (at 338):
"In one sense, of course, it can be said that the evidence constituted by the breath analysis was not unlawfully or unfairly obtained, because the obligation to submit to the breath test was not dependent upon compliance by the police with subsection (2). In my opinion, however, subsection (2) is a safeguard for the citizen expressly provided by the legislature and it is so closely connected with the obligation to submit to the breath test that non-observance by the police of the safeguard is a sufficient foundation for the discretion."
As to the nature and exercise of the discretion, King CJ referred to the High Court decisions of The Queen v Ireland (1971) 26 CLR 321 and Bunning v Cross (1978) 141 CLR 54. He said (at 339):
"The exercise of the discretion to exclude evidence which is unlawfully improperly or unfairly obtained involves the weighing of a number of competing considerations."
He went on to hold that, in the case in question, the special magistrate had correctly exercised his discretion to exclude the evidence of the result of the breath analysis, by reason of the failure of the member of the police force to comply with the obligations imposed by section 47f.
In my opinion it is clear that King CJ had in mind the exercise of a discretion based upon conduct which is unlawful or improper, rather than the exercise of a discretion based upon unfairness to the defendant. In saying that I acknowledge the area of overlap between what has been described as a discretion based on unfairness and a discretion based upon policy considerations: see The Queen v Swaffield (1998) 151 ALR 98. What I mean is that, in my opinion, it was the so called Bunning v Cross (supra) discretion that King CJ had in mind.
As to the exercise of the discretion, King CJ said (at 340-341):
"In this case, I consider that there was a conscious reluctance to implement the safeguard which resulted in actual, if perhaps unintended, illegality. The section imposes no penalty upon a police officer who fails to comply with sub-section (2). [of s47f] . . . The absence of any sanction other than the exclusion of the evidence of the breath analysis must be an important factor in considering whether to exercise the discretion. Factors against excluding the evidence are slight. The offence charged, although serious in its way, is not a grave crime. The cogency of the evidence can be of little significance in the circumstances, especially as the non-observed safeguard was directed precisely towards enabling the respondent to check the cogency of the evidence."
Since the decision in French v Scarman (supra), there has been a number of cases in which judges of this Court have relied upon a discretion to exclude evidence of a reading obtained from a breath analysing machine, even though the reading is admissible under section 47G(1). The decisions have not always distinguished between the policy discretion identified in Bunning v Cross (supra) and the discretion based upon unfairness to the defendant. By way of explanation, I add that the distinction has not always been drawn as clearly as it has been in recent years, and there is the further point that there is in any event an area of overlap between the two discretions: see The Queen v Swaffield (supra).
Taylor v Daire (1982) 30 SASR 453 was not one of those cases just referred to. In that case the magistrate found that a request that a sample of blood be taken, a request that would have attracted the operation of section 47f, was withdrawn by the person who made the request. Accordingly, there was no failure on the part of the member of the police force concerned to comply with the obligations imposed by section 47f. Nor was the withdrawal of the request vitiated by the provision of inappropriate advice or incorrect information: see King CJ at 464. This case was, therefore, simply one in which the presumption under s47g(1) operated, and there was no discretion to exclude the evidence of the reading given by the breath analysing machine.
Ujvary v Medwell (1985) 39 SASR 418 is an example of the exercise of the discretion to exclude, and is a decision of the Full Court. There, after a breath analysis was carried out, upon being informed of the right to have a sample of blood taken, the defendant enquired how he would get home if he went to a place where a blood sample could be taken. Upon being told by the police officer concerned that he would not be brought home, the defendant decided not to have a blood sample taken. It was held by a single judge that, in so acting, the member of the police force had failed to "facilitate" the taking of the sample. However, the judge held that the proper exercise of the relevant discretion did not require the exclusion of the evidence of the result of the breath analysis test.
There is some divergence in the reasoning of the members of the Full Court on appeal from the single judge. King CJ held that the obligation imposed by section 47f to facilitate the taking of a blood test did not arise because the appellant did not ultimately request that a blood sample be taken: at 419. He was of the view that the conduct of the police officers concerned "... amounted to an improper deterring of the appellant from taking advantage of his legal right" (at 419). Accordingly, he considered that a discretion to exclude the evidence of the reading arose. But in the end, he was not prepared to interfere with the exercise of the discretion by the single judge, which he identified as arising under Bunning v Cross (supra), not to exclude the evidence. Bollen J was of the opinion that the member of the police force failed to facilitate the taking of a sample. Although Taylor v Daire (supra) would suggest that the statutory presumption therefore did not arise, Bollen J took the view that what was in issue was the exercise of a discretion to exclude the breath analysis reading: at 425. Bollen J agreed that it was right not to exercise that discretion to exclude the relevant evidence. Prior J, like King CJ, took the view that as no request had been made for a sample of blood to be taken, the statutory presumption arose and the only question was the exclusion of evidence in the exercise of a discretion: at 426. He was of the opinion that the member of the police force concerned had done nothing unlawful or unfair or improper, and accordingly there was no basis upon which the discretion to exclude could be exercised: at 427.
In my respectful opinion, the approach of King CJ and Prior J is the correct approach. However, there are other cases in which judges, like Bollen J, have relied upon a failure to comply with the statutory requirements and procedures as a basis for the exercise of a discretion to exclude, rather than as preventing the statutory presumption arising: see, for example, Pacillo v Hentschke (1988) 47 SASR 261 at 266-269 O’Loughlin J.
In Brain v Froude (1992) 61 SASR 65 the requirement to submit to a breath analysis was found to have been made unlawfully, because the relevant member of the police force did not have the belief required before a person could be required to submit to an alcotest or breath analysis. A question then arose as to the admissibility of the evidence of the result of a breath analysis. Cox J, with whom Mohr J agreed, considered a number of the decided cases. He concluded (at 73) that:
"... the failure of a police officer to comply in all respects with the provisions of sub-s(1) of section 47e, so that his requiring a driver to submit to a breath analysis is unlawful, does not render evidence of the result of a breath analysis inadmissible in a prosecution under section 47b of the Act. It will simply raise a question whether the evidence should be excluded, in the exercise of the court’s discretion, on the ground that it was unlawfully obtained."
He went on to say that the exercise of the "Bunning v Cross discretion" required a consideration of all of the relevant circumstances (at 73). He made the point that unlawfulness did not necessarily connote inadmissibility. He noted that in French v Scarman (supra) the failure of the police to comply with section 47f had "deprived the defendant of an important safeguard against the possibility of error". He saw that as a significant factor in favour of the exercise of the discretion to exclude evidence. Legoe J agreed in substance with Cox J.
Finally, I refer to Nolan v Rhodes (1982) 32 SASR 207. Factually, that case is very similar to the second appeal. A breath analysis test was administered, and the member of the police force then informed the defendant of his right to have a sample of blood taken. It was found that the police officer, like the nurse in the present case, advised the defendant not to have a sample of blood taken because the resultant reading was always higher than the breath analysis. The defendant acted on that advice. At this time section 47F was is its earlier form, and the obligation to facilitate the taking of a sample was still in operation. Bollen J held that the decision not to request the taking of a sample was reached on the basis of advice which should not have been offered. The police officer had not been guilty of unlawful conduct, but there was unfairness in offering bad advice which resulted in the defendant not having a blood sample taken. He held (at 214) that the evidence of the breath analysis should be excluded in the exercise of the Bunning v Cross discretion.
It was not submitted that any of these cases were wrongly decided. They, and other cases to a like effect, represent a substantial body of authority. Under the circumstances I consider that we should follow them.
I therefore proceed on the basis that even though the result of the breath analysis may be admissible, and even though the statutory presumption might arise, there having been compliance with the "requirements and procedures" referred to in section 47G(1), the Court may nevertheless have a discretion to exclude evidence of the breath analysis reading.
That discretion is a discretion that is available to a court in any criminal proceedings. It is not a discretion peculiar to the Act or to section 47G.
There are two aspects to the discretion: see The Queen v Swaffield (supra) at par 70 Toohey J, Gaudron J and Gummow J.
One aspect requires a consideration of public policy or of the public interest. It leads to the exclusion of evidence obtained by unlawful or improper conduct. The rationale underlying this aspect of the discretion is that convictions obtained by relying upon such evidence are obtained at too high a price: The Queen v Swaffield (supra) at par 57-61.
The other aspect of the discretion rests upon the concept of unfairness, in the sense of unfairness that denies the defendant the right to a fair trial. The Court is not here confined to a consideration of unreliable evidence. The relevant unfairness includes protection:
". . . against forensic disadvantages which might be occasioned by the admission of confessional statements improperly obtained:" Swaffield (supra) at par 70.
In the light of the decisions of this Court previously referred to, I treat that discretion as extending to evidence relied upon by the prosecution, apart from confessional statements.
I repeat that it was not suggested in argument that the relevant discretion could not be exercised in relation to the reading obtained from a breath analysing machine. Not having heard argument on the point, I am not to be taken as deciding that the unfairness discretion is in fact available. I propose to proceed on the assumption that it is available.
In fact, it is not clear that the fairness discretion extends to real evidence, that is, evidence other than confessional evidence.
As far as I am aware the only member of the High Court to have addressed the issue specifically is Dawson J in Cleland v The Queen (1982) 151 CLR 1 at 36. It is clear from his Honour’s remarks there that he considered the fairness aspect of the discretion to be "limited to evidence of confessional statements."
In Foster v R (1993) 67 ALJR 550 at 534; 113 ALR 1 at 6-7 a majority of the High Court (Mason CJ, Deane, Toohey and Gaudron JJ) when identifying the nature of and relationship between the fairness and public policy discretions said:
"The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence. The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or "real". It is the discretion to exclude evidence of such a confessional statement on public policy grounds." (My emphasis)
As that passage indicates, the High Court has hitherto confined the operation of the fairness discretion to confessional statements. In my opinion, the above statement read as a whole is not favourable to the extension of the fairness discretion to non-confessional evidence, such as the Court has in the two appeals before it.
The majority judgment in Foster was approved by all members of the High Court in Swaffield (supra) and the passage above was specifically quoted by Brennan CJ at 24 and Kirby J at par 128. Nothing in the judgment of Toohey, Gaudron and Gummow JJ cast doubt on anything said in Foster. It should also be noted that their re-expression of the discretions was tied to confessions: at 69 & 70 and 119 Kirby J.
I am conscious that one must be cautious about taking a general statement from a High Court judgment in isolation, that is, divorced from its factual context, and treating that statement as constituting an exhaustive description of the scope of a particular legal principle. This is especially so when the legal principle in issue relates to a discretion, rooted in the requirements of a fair trial. Further, the High Court cases on the discretion have dealt with confessional material, and were not cases concerning the operation of the fairness discretion in the context of an elaborate statutory scheme. Nevertheless, the general tenor of High Court pronouncements in this area leaves me with a doubt as to whether the discretion is of the breadth contended by the respondents. I am not suggesting that such an extension should not be made. I merely observe that the thrust of High Court statements appears to confine the operation of the fairness discretion to the realm of confessional statements. At the least it leaves a question mark over the applicability of the discretion to non-confessional material.
On the other hand, the Court of Criminal Appeal of New South Wales and the Victorian Court of Appeal have not treated the above High Court statements as an impediment to the application of the fairness discretion to non-confessional material. In R v Edelsten (1990) 21 NSWLR 542 at 554 the Court of Criminal Appeal was of the view that, granted the discretion is grounded in ensuring the accused a fair trial, there was no reason in principle for confining the ambit of the discretion to confessional material. The Victorian Court of Appeal reasoned along similar lines in Rozenes v Beljajev [1995] 1 VR 533 at 549. It held:
"The proposition must be accepted that there is a discretion in a criminal case to reject any evidence, whether or not a confession, on the ground that to receive it would be unfair to the accused in the sense that the trial would be unfair. So much must be accepted both on principle and by reason of the authorities."
I see the force in the reasoning of those decisions. Then can be no doubt that the discretion relates to the fundamental common law right of an accused to a fair trial: Swaffield (supra) at par 54. Given this it would be strange if the common law sanctioned the admission of evidence which eroded that right, yet in relation to confessional evidence protected that right.
For present purposes, I leave the matter there.
There is one further matter to which I should refer. In considering section 47G and surrounding sections, the Court is, to a considerable extent, engaging in a process of statutory interpretation. It does so, however, in the context of a system of legal rules that regulate the trial of an offence. These rules may, of course, be displaced by Parliament if it so chooses. If it were the intention of Parliament that, provided the result of the breath analysis was admissible and the presumption available, the presumption should then operate, that would be the end of the matter. In other words, if Parliament intends to exclude the exercise of the discretion to which I have referred, a discretion to exclude evidence of an otherwise admissible breath analysis reading, that intention must be implemented by the Courts.
As I have said, there is a long list of cases in this Court that treat section 47G as not excluding the discretion usually available in a criminal case to exclude otherwise admissible evidence. We were not asked to depart from them. In Taylor v Daire (1982) 30 SASR 453, Wells J said (at 473) that if the requirements and procedures under section 47G(1) were met, then:
"... in my opinion, no question of judicial discretion arises when a Court is determining whether the presumption is to be applied; if the foregoing conditions precedent to its successful invocation have been proved, the presumption ipso facto applies; if that proof fails, the presumption is lost."
There is, with respect, something to be said for that view. But that was not the view of the majority. King CJ referred to the amendment to section 47g(1), referring to compliance with the "requirements and procedures in relation to breath analysing instruments and breath analysis". He said (at 463):
". . . Parliament has amended section 47g to provide certain consequences which are to follow non-compliance with section 47f. Those consequences do not affect the admissibility of the breath analysis instrument reading nor do they affect the judicial discretion to exclude such evidence. They are confined to the operation of the statutory presumption that the concentration of alcohol indicated by the instrument was in fact present at the relevant time."
Jacobs J agreed with the reasons of King CJ: at 474. And, as I have already said, later cases have consistently taken the view that there is a discretion to exclude the result of a breath analysis reading, even though evidence of that reading is admissible under section 47G(1) and even though the statutory presumption then arises.
Issues on appeal - the statutory presumption
I begin with the presumption that arises under section 47G(1).
In the first appeal the issue is whether, on the facts stated above, the failure of the medical practitioner to comply with regulation 6 (i), with the result that the defendant did not receive a sample of blood that could be analysed as contemplated by section 47G(1a), has the result that "the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act" have not been complied with, and so means that the presumption is not available.
There is no doubt that the requirements of sub-sections (2) and (2a) were complied with. There is no doubt that the words of section 47G(1) are apt to include other requirements and procedures.
In Taylor v Daire (1982) 30 SASR 453 King CJ (at 463) treated the obligations imposed by section 47f, as it then stood, as procedures upon which the availability of the statutory presumption depended. Wells J appears to have proceeded upon the same basis (see 473), and Jacobs J agreed with King CJ. It is understandable that they should have so concluded. At that time, a person whose breath analysis indicated the presence of the prescribed concentration of alcohol, had to be informed "of his right pursuant to section 47f of this Act to have a sample of his blood taken by a medical practitioner:" section 47g(2a). Section 47f, in turn, imposed specific obligations upon a member of the police force to whom a request was made. In that context, it was natural to treat the obligations imposed by section 47f as "requirements and procedures in relation to breath analysing instruments and breath analysis under this Act".
What is the position today? Of course, the taking of a sample of blood for the purpose of analysis remains a safeguard for the person whose breath is analysed, and it remains the only means of rebutting the statutory presumption. It is also true that the legislature regards the analysis of a sample of blood as more reliable than the analysis of a sample of breath: Evans v Benson (1986) 46 SASR 317 at 320 King CJ.
The importance of the taking of a sample of blood, and the forensic importance of the analysis of such a sample, is unchanged. But there is no longer a statutory obligation upon a member of the police force to facilitate the taking of the sample, or to be present at the taking of the sample, or to be involved in the taking of a sample. In saying that I have not overlooked the obligation imposed by section 47G(2a).
It therefore becomes more difficult to regard the procedures prescribed by regulation 6 as requirements or procedures in relation to breath analysing instruments and breath analysis. Granted, a person whose breath is analysed is to be informed of the procedures for the taking and analysis of a sample of the person’s blood. But those procedures no longer involve, in any significant way, a member of the police force, and can only with difficulty be regarded as procedures in relation to breath analysis.
There is no requirement imposed upon a member of the police force to do anything once an approved blood test kit has been delivered. There is no procedure in the Act that must be followed by a member of the police force, once that has been done. There is no longer a "right pursuant to section 47f" to have a sample of blood taken, in the sense of a right matched by a correlative duty imposed on a member of the police force to facilitate its taking, and to be present at its taking.
I consider that, in the light of the changes to the statutory scheme, the procedures to be prescribed by regulation for the taking and analysis of a sample of blood are not requirements or procedures referred to by section 47G(1). In my opinion Taylor v Daire (supra) can be distinguished. In so concluding I have excluded from consideration the terms of regulation 6. I have done this because, as is well established, the regulations cannot be used to interpret the Act. My conclusion is that there is no longer a sufficient link under the Act between the procedure for the taking and analysis of a sample of blood, and the procedure for analysing breath, for one to say that the former procedure is one in relation to breath analysis.
It follows, in my opinion, that in the first appeal the statutory presumption is available.
I find it easier to conclude that the statutory presumption is available in the second appeal. The advice given by the nurse was advice that caused the defendant not to proceed to have a sample of blood taken. But that advice did not have the consequence that a requirement or procedure under the Act was not complied with. Its result was that the defendant did not avail himself of a procedure that was available to him. But it was not a procedure in relation to breath analysing instruments and breath analysis, in my opinion.
I therefore conclude that in both cases the statutory presumption was available.
Issues on appeal - the discretion to exclude evidence
The Courts of Australia have identified two relevant bases for the exercise of a discretion to exclude evidence, tendered by the prosecution, in cases like those now before the Court.
One basis for the exclusion of evidence is that it would be unfair to the accused to admit the evidence. While in a number of the cases it is the unreliability of the evidence that has enlivened the discretion, it is clear that the basis for the discretion is not restricted to such situations. In The Queen v Swaffield (supra) the majority of the Court made this clear. They said (at par 53):
"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 . . ."
In a similar vein, Brennan CJ said (at 15):
"The relevant unfairness is not so much in ‘the use made by the police of their position in relation to the accused’, as Dixon J said in McDermott (1948) 76 CLR 501 at 513, but in the admission into evidence against an accused of a confession obtained by improper or illegal means. Ex hypothesi, any such confession has been voluntarily made."
The other basis for the exercise of the discretion to exclude evidence arises when the evidence has been ". . . procured by unlawful or improper conduct on the part of law enforcement officers": Swaffield (supra) at par 59 Toohey J, Gaudron J and Gummow J. This is the discretion that has already been referred to as the Bunning v Cross discretion. Some of the cases relating to this discretion, however, also refer to evidence procured by unfair acts or means: see, for example, R v Ireland (1970) 126 CLR 321 at 334-335 Barwick CJ. The object of this discretion, or of the exercise of the discretion on this ground, was said by Brennan CJ in Swaffield (supra) at par 22 to be:
"... the constraining of law enforcement authorities so as to prevent their engaging in illegal or improper conduct, although the securing of fairness to an accused is a relevant factor in the exercise of the discretion."
As Brennan CJ went on to say (at 25):
"... the public policy discretion requires a balance to be struck between the public interest in placing the Court in possession of all relevant admissible evidence and the public interest in ensuring that law enforcement officers do not act unlawfully or improperly."
The matter was expressed graphically by Barwick CJ in R v Ireland (supra), in the passage already referred to, when he said (at 335):
"Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price."
In Swaffield (supra) the majority said (at par 69) that the time had come to combine these two discretions into:
"... an overall discretion which might take account of all the circumstances of the case to determine whether the admission of the evidence or the obtaining of the conviction on the basis of the evidence is bought at a price which is unacceptable, having regard to contemporary community standards.": See also Kirby J (at 119-120)
That is now the approach to be adopted. However, I find it convenient to consider separately the two aspects of the discretion that I have already identified.
As I have already said, a consideration of fairness invites attention to the fairness of the trial. What is considered is whether it would be unfair that the evidence be used against the accused. The circumstances in which the evidence was obtained are important. I stress that the Court is not concerned with fairness considered at large, with some broad idea of fair play or with whether the forensic contest is an even one. The issue is whether, having regard to the circumstances in which the relevant evidence was obtained, there would not be a fair trial if the evidence were used against the accused. It is important to understand the purpose behind this aspect of the discretion. An understanding of that purpose directs attention to an important aspect of its consideration. As Brennan CJ said in Swaffield (supra) at par 15, in a passage that I have already cited, the purpose is to:
". . . constrain the police or other law enforcement officers in their dealing with the suspect, so that the suspect should be fairly treated in the investigation."
The purpose is to prevent the use of illegal or improper methods of obtaining evidence. The same point was made in slightly different terms by Toohey J, Gaudron J and Gummow J in Swaffield (supra) at par 52. They said:
"The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person."
In the first appeal, there is no suggestion of unlawful of improper conduct by a member of the police force, or by a representative of the law enforcement authorities. In Bunning v Cross (1978) 141 CLR 54 at 75 Stephen J and Aickin J, when discussing this discretion, referred to conduct ". . . on the part of the authorities . . .". But, in the context in which that was said, I take that to be a reference to persons who might be described as law enforcement authorities.
It is also notable that, in this State, in the decided cases the discretion has been exercised to exclude evidence when there has been a deliberate or mistaken failure by a member of the police force to comply with the requirements of the Act. In saying that, I put to one side cases concerned with section 47I. That section deals with the compulsory taking of blood from a person admitted to hospital after a motor vehicle accident. In cases under that section evidence of the analysis of a sample of blood has been excluded as a result of a medical practitioner not following the statutory procedure: see, for example Ouwerkerk v Whalan (1986) 41 SASR 287. In my opinion different considerations arise under section 47I, that being a provision that governs the collection of material for use by the prosecuting authorities, or at least with a view to its possible use.
In the first appeal the failure to comply with the Regulations is attributable to a mistake made by a medical practitioner.
The exercise of a discretion to exclude the evidence of the breath analysis reading, because of the medical practitioner’s mistake, cannot serve any purpose of deterring law enforcement officers from illegal or improper methods. As I have already pointed out, the procedure to be followed under Regulation 6 is entirely outside their control and responsibility. I acknowledge that the exclusion of the evidence of the breath analysis reading in the first appeal can, in a sense, be said to protect the right of the defendant to have her sample of blood taken and analysed by an analyst of her choice. The exclusion of the evidence would do so in the sense that, having lost that right, she would be protected against the use of the result of the breath analysis to give rise to a presumption that she could not rebut. But, as I understand the authorities, the protection intended by the use of the discretion is against the loss of rights due to some impropriety on the part of the law enforcement authorities. The discretion is not intended to be used to protect against a loss of rights, in a rather general sense, resulting from events that are not the responsibility of the law enforcement authorities.
It was submitted by counsel for the respondent that the medical practitioner should be regarded as an "authority" in the sense in which that expression was used in Bunning v Cross (supra). That submission was put on the basis that the medical practitioner has an important role to perform under Regulation 6, and for those purposes can be regarded as a person charged by Parliament with the duty or obligation in question. It was submitted that the Court should not take a restricted view of the range of persons whose conduct might enliven the exercise of the discretion.
I do not accept that submission. The purpose of Regulation 6 is to lay down a procedure that ensures the integrity of the sample of blood that is taken, and the reliability of any later analysis of that sample. Regulation 6 establishes a procedure that a defendant may utilise, or initiate, if the defendant wishes. But I do not regard participation in that process by a medical practitioner, or by State Forensic Service, as part of the process of detecting possible offenders or part of the process of enforcing the law against possible offenders. To my mind, the nature and purpose of the exercise of the discretion on the grounds of unfairness suggests that the mistake by the doctor cannot enliven the discretion.
Of course, from one point of view it can be said to be unfair that the defendant should, as a result of the mistake of a medical practitioner, lose the opportunity to rebut the statutory presumption in the manner contemplated by section 47G(1a). I mention in passing that, in the first appeal, the defendant did not lose that opportunity altogether. A sample of blood was analysed by State Forensic Service, and I can see no reason why the defendant could not have relied upon the result of that analysis had it suited her to do so. What the defendant lost was the opportunity to have a sample of her blood analysed by an analyst of her own choice: see Regulation 6(q). But, in my opinion, to talk of unfairness in this way is to use that term too loosely. In my opinion, the relevant point is that there is no unfairness in a trial in which the prosecution adduces evidence of the result of a breath analysis, when the loss of the opportunity to challenge the presumption that rests upon the result of the breath analysis is not the product of any illegality, impropriety or failure to observe statutory requirements by a member of the police force or by those responsible for the enforcement of the law. There is nothing improper in the manner in which the evidence was obtained, and no relevant impropriety in the circumstances under which the defendant has lost the opportunity to challenge the presumption that rests upon the evidence.
I repeat that fairness or unfairness is not considered at large. The consideration of fairness focuses upon the trial process and upon the protection of the rights of the defendant. If no right of the defendant has been infringed, at least by the law enforcement authorities, I do not accept that it can be said that the operation of section 47G(1) means that the trial is unfair.
I accept that unfairness can arise through no fault of the law enforcement authorities. The case of an admission made by an accused person who is suffering from severe shock might be unfair, even if the person to whom it was made was unaware that the person was suffering from shock: cf The Queen v Ostojic (1978) 18 SASR 188 at 197 Wells J. But in that situation the authorities seek to use an admission made in circumstances that render its use unfair. In such a case they have, unwittingly, taken advantage of the state of the accused. But I find no analogy between such a case and this one.
In my opinion the case is readily distinguishable from the cases to which I have referred, and from other cases decided under section 47G. In the cases in which evidence of the result of the breath analysis has been excluded, there has been a failure by police to comply with a requirement of the Act, or conduct by the police that can be regarded as at least inappropriate: see, for example, Nolan v Rhodes (1982) 32 SASR 207. In those cases, the member of the police force was obliged to facilitate the taking of the sample, and to be present at the taking. A breach of the former obligation was, at least, an impediment to the exercise of the right given by section 47f. A breach of the latter obligation meant that the blood sample, even if taken without police "facilitation", would not be "taken and dealt with in accordance with section 47f". In those circumstances, failure by a member of the police force to comply with section 47f, or conduct that deterred a person from ensuring the right under section 47f, was clearly linked to the breath analysis procedure, and was clearly conduct by a law enforcement authority that should be discouraged.
It follows, in my respectful opinion, that Police v Erwin (Unreported, Judgment No. S6375, 2 October 1997) was wrongly decided. In that case a mistake by a medical practitioner had the result that the defendant was not given a container containing part of the sample of her blood that had been taken from her. The judge upheld a decision by a magistrate to exclude evidence of the result of the blood analysis. The judge considered that either or both of the unfairness discretions and the Bunning v Cross discretion arose. The judge said that the loss of the opportunity to utilise section 47G(1a) gave rise to unfairness, and that this was so even though it was not caused by anything done or omitted by a member of the police force. I have sufficiently indicated why I do not accept this reasoning.
For those reasons, I conclude that a consideration of fairness does not provide a basis for the exclusion of the evidence of the result of the breath analysis in the first appeal. In my opinion there is no basis for the exercise of that discretion.
I now turn to a consideration of the exercise of the discretion on the basis of policy factors.
Similar considerations arise.
There has been no unlawful conduct or impropriety by the police or by law enforcement authorities. There is no question of the Court, by receiving evidence, giving its approval of such conduct. The exclusion of the evidence would not tend to protect the public interest by deterring the law enforcement authorities from engaging in unlawful or improper conduct. In my opinion, there is no factor in the first appeal that provides a basis for the exercise of the discretion on these grounds.
In the first appeal, it was on this basis that the magistrate excluded the evidence of the result of the breath analysis. He relied upon French v Scarman (1979) 20 SASR 333 and upon Bunning v Cross (1978) 141 CLR 54. He obviously regarded the failure by the medical practitioner to comply with the procedures set out in the Regulations as an impropriety of the type that would enliven the discretion on policy grounds. For reasons that I have explained, I cannot agree.
Finally, I turn to consider the exercise of the overall discretion, as it was described by the majority in Swaffield (supra). It is not necessary to repeat what I have said. I can identify no impropriety by law enforcement authorities, no failure by them to comply with the requirement of the Act relating to breath analysis, no unfair treatment by them of the defendant. The defendant has lost an important protection under the Act, but has done so through no fault of the law enforcement authorities. I cannot say that the trial is in any sense unfair. Parliament has established a statutory scheme, including a presumption, and limited the way in which the presumption may be rebutted. In the particular circumstances it does not seem to me to be unfair that the presumption should be unable to be rebutted, nor do I consider that the Courts are approving any relevant impropriety by declining to exclude the evidence of the result of the breath analysis.
The discretion to exclude evidence does not arise simply because a statutory requirement, or a requirement in a regulation, has not been observed. The discretion arises if there is some impropriety by a member of a law enforcement authority, or if it would be unfair to use this evidence having regard to some such impropriety, or if at least a law enforcement authority has taken advantage of some disadvantage under which the accused laboured.
I turn now to the second appeal. I accept that the advice that the nurse gave should not have been given, although the nurse did not act unlawfully in giving that advice. It is the sort of advice that might be given by a range of people, such as a friend who is in the car of the person who undergoes a breath analysis, or a friend or relative consulted shortly after the event. Indeed, it is the sort of advice that might be given before the breath analysis takes place, and that might later cause a person not to request the taking of a blood sample. In saying this, I am not overlooking the significance of the fact that the advice was given by a person associated with the procedure for the taking of a blood sample. But if the conduct of the nurse in question supports the exercise of a discretion to exclude the evidence of the result of the breach analysis, it is not easy to see where the line will be drawn.
Be that as it may, in my opinion there is once again no relevant unfairness in the receipt of the result of the breath analysis, and no relevant unlawfulness or impropriety on the part of those responsible for the enforcement of the law. In my opinion the case is readily distinguishable from the cases to which I have referred, and in particular readily distinguishable from Nolan v Rhodes (1982) 32 SASR 207, where the advice against having a blood sample taken was given by a member of the police force involved in the breath analysis process.
Likewise, in the second appeal, considering the exercise of the overall discretion, I can find no basis for its exercise.
Conclusion
In each case, in my opinion the magistrate erred in excluding the evidence of the result of the breath analysis. The discretion that each magistrate purported to exercise did not arise.
In neither case does the judgment of the relevant magistrate suggest that there is any other basis upon which the magistrate could have declined to convict the defendant.
In my opinion in each case the appeal should be allowed, the acquittal of the defendant on the count alleging that the defendant drove a motor vehicle while there was present in the defendant’s blood the prescribed concentration of alcohol should be set aside, and the matter should be remitted to the Magistrates Court for a conviction to be entered and for the magistrate to consider and to impose the appropriate penalty.
Matheson J
I agree with the orders proposed by the Chief Justice in both appeals for the reasons that he has given.
Prior J
I agree with the reasons published by the Chief Justice and with the orders he proposes.
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