Police v Modra No. Scgrg-00-108

POLICE v MODRA
[2000] SASC 89

Magistrates Appeal: Criminal

WILLIAMS J. This is a prosecutor’s appeal against a Magistrate’s dismissal of a complaint which alleged an offence against s 47B of the Road Traffic Act 1961 (“The Act”). The complaint alleges that on 29 August 1998 at Glenelg East the respondent had a blood alcohol concentration of 0.087 grams per one hundred millilitres of blood. The respondent pleaded not guilty.
The grounds of appeal centre around whether the Magistrate erred in exercising a discretion to exclude evidence of the reading given by a breath analysis instrument. The evidence was of a formal nature in accordance with s 47G(1) of the Act but was rejected by the Magistrate based on the exercise of a “Bunning v Cross discretion” as she described it (see (1978) 141 CLR 54). However the appeal was conducted on the basis that the Magistrate may have intended to apply either of the discretions mentioned in Police v Jervisand Holland (1998) 70 SASR 429 at 445-6 or a combination of those discretions.
The respondent was tested at 12.35am at a random breath test station established on Diagonal Road, Glenelg East. An alcotest then showed that the prescribed concentration of alcohol may have been present in the respondent’s blood.
The respondent was taken to Glenelg Police Station and arrived there at 1.05am. Thirty-nine minutes later at 1.44am he provided a breath sample into a breath analysis machine which gave a reading of 0.087. He entered the breath analysis room at 1.39am. At 6.07am a sample of the respondent’s blood sample was taken at Flinders Medical Centre and, on analysis, showed the presence of 0.0015 grams of alcohol per 100 millilitres of blood.
The evidence of a forensic medical practitioner to relate this reading back to the respondent’s condition at 1.05am was treated by the Magistrate as being “speculative”.
Features of this case relevant to this appeal are as follows:
1...... The respondent was stopped at a random breath test station where he was dealt with by a probationary constable of three months standing. This was the first time that the probationary constable had seen a positive reading in an alcotest which he had administered. He recognised the respondent as a member of the police force and became overawed by the responsibility of dealing with the respondent. He assured his sergeant that he was “confident” of his ability to handle the situation but this assessment was misplaced. In fact, according to the probationary constable he was “devastated” when he found out that he was dealing with a police officer.
2...... Police regulations require that the serial number and type of the apparatus used in an alcotest be recorded. This was not done on this occasion and the piece of apparatus was not retained. Therefore on the Magistrate’s finding there becomes a gap in the chain of evidence if it be required to establish that the apparatus used was in fact of an approved type.
3...... At the breath test station the probationary constable, by mistake, started to read a “prompt” from his notebook to the respondent alleging an offence of driving under the influence. Another policeman intervened and corrected the probationary constable but it led to further confusion.
4...... The probationary constable told the respondent that he had been “apprehended” and placed the respondent in the rear seat of a police vehicle for transport to Glenelg Police Station. The rear doors were locked. The Magistrate found that the defendant believed on reasonable grounds that he had been arrested.
5...... En route to Glenelg Police Station the probationary constable made an attempt to comply with s 79A of the Summary Offences Act 1953 but he did not fully inform the respondent of his rights under the section.
6...... The sergeant in charge of the Random Breath Test Station was a qualified breath analysis operator and he went along to Glenelg Police Station but did not conduct the breath test. Instead another operator was called in on the basis that “the most experienced breath analysis operator available should conduct the test” (see Police General Order No.3310 which applies where a police officer is to be breath tested). These arrangements may have involved some small delay but it is subsumed within the delay mentioned below.
7...... At the Glenelg Police Station the appellant was kept waiting to undergo a breath analysis test. The Police State Duty Officer in Adelaide was notified that a member of the police force was to be breath tested. The Magistrate found that “the overall inference is irresistible” that the test was delayed until the Duty Officer arrived from Adelaide, apparently to be an observer.
......... The Magistrate made an adverse finding as to the credit, inter alia, of the Duty Officer and noted that the prosecution was at pains to say that there was no evidence that the test was delayed. The Magistrate found that the test was delayed for some 3/4 of an hour.
8...... The State Duty Officer had a conversation with the probationary constable in the course of preparing his own statement and for the purpose of giving encouragement to the probationary constable. This caused the Magistrate to discount the value of the evidence of the duty officer involved in this exchange. The probationary constable’s evidence for other reasons was shown to be unreliable.
The Magistrate was unable to say that the defendant was or was not prejudiced by the delay but decided that the prosecution case was so flawed that it would be unjust to admit the results of the breath test. She expressed herself as relying on the discretion arising under Bunning v Cross. Accordingly the complaint was dismissed.
Upon appeal it is apparent that the delay in testing the respondent was in fact something upwards of about twenty minutes.
It is not clear whether the Magistrate intended to apply Bunning v Cross, which is based on public policy considerations, or whether she intended to apply the unfairness discretion as exemplified by R v Swaffield (1997) 192 CLR 159 at 175-8. The Magistrate did mention Police v Jervis and Holland (1998) 70 SASR 429 where at 445-6 Doyle CJ said:
“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 R v Swaffield the majority of the court made this clear. They said (at 354):
......... “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 fairness, it has been said not to be the sole touchstone...”

In a similar vein, Brennan CJ said at 345:

“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 v The King (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”: see Swaffield (at 355) per Toohey, Gaudron and Gummow JJ. 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, eg, R v Ireland (at 334-335) per Barwick CJ. The object of this discretion, or of the exercise of the discretion on this ground, was said by Brennan CJ in Swaffield (at 347) 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 349):
......... “...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, 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 the majority said (at 357) 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 364-365).

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 (at 344), 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, Gaudron and Gummow JJ in Swaffield (at 354). They said, “The purpose of the discretion to exclude evidence for unfairness is to protect the rights and privileges of the accused person”.

The appellant contends that no matter how the relevant discretion is expressed or applied there was no basis on which the Magistrate was entitled to exercise the discretion to exclude the evidence in the circumstances of this matter. The respondent contends to the contrary. Counsel for the respondent points to a number of arguments which seek to support the dismissal of the complaint and justify the Magistrate’s rejection of the vital prosecution evidence. The respondent’s arguments go beyond the manner of the exercise of discretion.
I will deal with these arguments separately and then collectively.
Unsatisfactory state of evidence regarding the Alcotest

The respondent argues that the prosecution’s failure to prove that an approved alcotest machine was used had the result that the evidentiary presumption regarding the reading on the breath analysis instrument did not apply. Alternatively the respondent submits that the result of that test should be excluded as a matter of discretion.
The respondent based an argument upon s 47G(1) of the Act which reads as follows:
“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.”
(emphasis added).
The respondent points out that the presumption only arises “where the requirements and procedures in relation to breath analysing instruments and breath analysis...have been complied with”. The respondent then argues that an alcotest administered under s 47E(2a) of the Act is an essential first step in the procedure leading to a requirement for breath analysis under s 47E(2b) after a driver has approached a breath testing station established under s 47DA. There was no relevant conduct or incident in the case which would entitle police to require a breath test without an alcotest in accordance with s 47E(1). So it is argued, the only lawful basis for moving forward to the administration of a test using a breath analysis instrument was when an alcotest showed that the prescribed concentration of alcohol may be present. The respondent contends that the failure by the prosecution to prove strictly that the instrument used in the alcotest was of a kind approved by the Governor has the consequence that the relevant “requirements and procedures” were not shown to have been complied with.
In my opinion this argument fails on reference to the statutory definitions in s 47A. “Alcotest”, “breath analysing instrument” and “breath analysis” are all separately defined.
I adopt the statement by Martin J in Barber v Police (1999) 204 LSJS 399 at 405:
“The requirement in s 47G(1) is to comply with “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act.” The expressions “alcotest”, “breath analysing instrument” and “breath analysis” are separately defined in s 47A of the Act. In my opinion, s 47G does not impose any obligation to comply with the requirements and procedures in relation to alcotests as a condition precedent to the operation of the presumption afforded by s 47G. The breath analysing instrument referred to in s 47G is defined as meaning “an apparatus of a kind approved as a breath analysing instrument by the Governor.” The alcotest or the instrument used to conduct the alcotest is not such an apparatus. The expression “breath analysis” is defined as meaning “an analysis of breath by a breath analysing instrument” which excludes the analysis by the alcotest. By way of contrast, “alcotest” is defined as meaning “a test by means of an apparatus of a kind approved by the Governor by which the presence of alcohol in the blood of a person who exhales into the apparatus is indicated”.
(emphasis added).
In my opinion the statutory presumption arising under s 47G(1) does not depend on compliance with any requirements and procedures in relation to the preceding alcotest.
It is argued for the respondent that there exists a general discretion in the court to exclude the result of the breath analysis if considerations of fairness so required (c.f. Eubel v Martin (1992) 57 SASR 290 at 292 and 293). However, I see nothing in the police conduct in the present case which could form the basis for the exercise of the discretion. The probationary constable’s confusion at the breath test station did not lead to any relevant misapprehension by the respondent of his rights. The probationary constable did not record the details of the alcotest. He left the instrument at the roadside but all this was mere inexperience and not part of any attempt to cover up something.
The Magistrate found that the instrument used in the alcotest was not proved to be an approved machine. In my view that conclusion was open to the Magistrate and I would uphold her finding if that were relevant. There was a dispute as to whether the Magistrate should have allowed the prosecution to re-open its case to tender part of a certificate which was suggested had been overlooked during the presentation of the prosecution case. If anything turned on the point I would hold that the Magistrate should have allowed the prosecution to re-open, if that were thought to be necessary, to deal with a formality which arguably had been overlooked. However the point does not matter. The real difficulty for the prosecution was the Magistrate’s attitude to the evidence of the probationary constable who was so confused as to what had happened. If formal proof were required as to the instrument used in the alcotest some evidence was needed to link the particular instrument with the certificates. Despite the prosecution’s attempt, by reference to the record of issued equipment, to properly identify the instrument used in the alcotest, the Magistrate’s reservations about the oral evidence entitled her to not act on that.
However, by reason of the application of Barber’s case that aspect of the case need not be pursued. In my opinion it was unnecessary to prove that an alcotest was lawfully administered in terms of the instrument used.
Failure to give respondent his “rights” upon arrest

For the purposes of argument I am prepared to assume that the respondent was arrested as a result of the inexperience of the probationary constable and taken to Glenelg Police Station. There was a failure by the probationary constable to comply with the procedure in s 79A of the Summary Offences Act 1953 in that he did not spell out all the respondent’s rights to him. In particular, the detective was not told of his right to have a solicitor present. That fact gave rise to a discretion in the Magistrate to exclude evidence if in fact anything turned on that failure. The respondent acknowledged in evidence that he was aware of his rights. The respondent relied on the examination of the point by Olsson J in Marshall v Twiggs (1987) 135 LSJS 24 at 32-33. His Honour said:
“Whilst I am far from suggesting that section 79a necessarily has application to all circumstances in which a person is requested to submit to a breath analysis test, nevertheless, with all due respect to the learned magistrate, I entertain no doubt that it did apply to the situation of the appellant on the occasion of 29 December 1985. The facts undoubtedly were that the appellant had been arrested on his refusal to submit to an alcotest (an offence in its own right), the police officers suspected that he was affected by alcohol and probably had a blood alcohol concentration in excess of 0.08 per cent and they desired him to submit to the test as part of their inquiry into whether the suspected offence had actually been committed.
I consider that, in such circumstances, the onus was upon the police to inform him of his rights pursuant to section 79a and to facilitate his exercise of them. Such rights are of particular importance, for they bear (inter alia) upon the issue of what advice may have been tendered to him as to whether or not to seek the taking of a blood sample.
In the instant case, notwithstanding the initial statement as to the making of a telephone call made to him at the scene of the arrest, the appellant, in the events which subsequently transpired, does not really seem to have been afforded that opportunity prior to his lodgment in the cells. He was certainly not aware of the substance of section 79a(1)(b) of the Summary Act.
That being so the learned magistrate was clearly called upon, prior to determining the issues arising on the first charge, to consider the exercise of a discretion of the nature of that adverted to in Bunning v. Cross (1977-78) 141 CLR 54. He did not do so.”

I cannot identify anything on the facts of this case which would lead to the exclusion of the evidence of the breath test. The respondent was required to accompany police to the Glenelg Police Station by virtue of s 47E of the Act. No evidence was obtained as a result of unlawful police conduct.
I have been unable to identify any prejudice to the respondent in what occurred. If the respondent’s position could have been altered to operate to his advantage by different procedures being observed, or if some evidence was illegally or unfairly obtained, then the situation would be different.
If the police had deliberately flouted their obligations this might be a matter affecting public policy considerations in terms of a discretion to exclude evidence. Again that is not the present case.
Delay in administration of the breath analysis test

The Magistrate found that there was a delay of some forty-five minutes in the administration of the test at Glenelg. This is to be compared with the position had the respondent been “an ordinary citizen” and if the sergeant at the breath testing station had administered the breath test at Glenelg in the ordinary course. Upon the material before the Magistrate this is a miscalculation. There was a delay but it was in the order of twenty minutes or so. On appeal there was no issue as to the approximate amount of time occupied by the delay. The Magistrate found that the statutory procedures at Glenelg Police Station were deliberately held up to enable the duty officer from Adelaide to arrive. She was entitled to reach that conclusion. The alcotest was administered at 12.35am. The respondent reached the Glenelg Police Station at about 1.05am. At 1.44am he provided a sample of his breath into a breath analysis machine which returned a reading on the instrument of 0.087 grams concentration of alcohol and was then allowed to leave. At 6.07am the respondent gave a blood sample at Flinders Medical Centre upon which the analysis returned 0.015 grams of alcohol per 100 millilitres of blood. The Magistrate said:
“There is no evidence before me such that I can say the defendant was or was not prejudiced as a result of that delay but, given the requirement for strict compliance [with] the legislation, in my view the prosecution case is so flawed that it would be unfair and unjust to admit the results of the breath analysis test in evidence against him. I rely on the discretion arising under Bunning and Cross 141 CLR 54.”
Although the respondent was kept waiting unnecessarily for 20 minutes I cannot see that the time involved really mattered in this case. If there was any suggestion that the police had engineered the delay to affect the possible outcome of the test then that would be a matter for concern but it did not happen in this case. It is not suggested that the respondent’s blood alcohol level so increased during the 20 minutes of delay as to significantly affect the outcome. Indeed, to the extent that any estimate is possible, there is some evidence that the concentration of alcohol in his blood was falling.
There was no requirement that the procedure associated with breath analysis at Glenelg Police Station be conducted without undue delay (c.f. Manetta v Police (1999) 74 SASR 329 at 335). In some circumstances there could be an element of unfairness to the respondent in allowing time to pass unnecessarily. There might also be circumstances where public interest considerations would become relevant. Again, I cannot identify anything of substance in terms of illegal or improper conduct on the part of the law enforcement officers which might lead to the exclusion of the evidence.
An overview of the case as a whole

In terms of the individual arguments which have been advanced I have not been able to identify a basis on which the Magistrate might properly have exercised a discretion to exclude evidence of the breath test.
It is true that two police witnesses conferred regarding the evidence to be given by the probationary constable and that has attracted adverse comment from the Magistrate in terms of her findings as to credit. These actions do not affect the reliability of the evidence as to the commission of the offence.
It is also to be acknowledged that there were a number of criticisms arising out of the combination of circumstances - the inexperience of a probationary constable and the fact that the offender was a detective (which led to the implementation of special police procedures). As relevant to the present issue, no particular consequence has been suggested in argument as to the confusion which arose when the probationary constable blurted out that he was proceeding on the basis of an allegation of driving under the influence of alcohol.
At the end of the day, I have applied to the entire evidence the bases for the exercise of a discretion to exclude prosecution evidence which was identified by Doyle CJ in Police v Jervis and Holland at 445-6.
Whether addressed in terms of unfairness to the respondent or on the footing of a wider concern for the public interest regarding improper or illegal conduct on the part of the police, I cannot find anything in the combination of facts which would have been sufficient to justify the Magistrate from excluding the prosecution evidence.
There was no deliberate flouting of the law by the probationary constable. There is no prejudice, or even possible prejudice, to the respondent demonstrated by anything which has occurred.
The prosecution case, which relies on the presumption under s 47G of the Act, depends on an artificial situation Parliament has created as discussed in Evans v Benson (1986) 46 SASR 317 per Jacobs J at 329. This in turn leads to a situation where the courts will insist on strict compliance by the prosecution with the conditions established by this peculiar regime. The courts will identify the safeguards against an arbitrary, unreasonable or ill-informed exercise of power and ensure that they have been observed (cf. Lajos v Samuels (1980) 26 SASR 514 at 522).
The breath analysis at Glenelg Police Station appears to have been carried out in an exemplary manner. An experienced operator of the breath analysis instrument was called in to the Glenelg Police Station to conduct the test. His observations, the manner of his conduct of the test and compliance with procedures have not been called in issue on the appeal. Appropriate certificates exist to provide formal proof. The appellant was supplied with the information and the blood kit to which he was entitled and he was allowed to leave immediately after the test at Glenelg Police Station. He was then able to make his own way to a medical practitioner to provide a blood sample.
In giving a ruling on the voir dire on 9 November 1987 in R v Turner and Williams, in a case involving the application of s 79A of the Summary Offences Act 1953, Cox J said with respect to an arresting officer:
“one can only sympathize with him, and I am sure that he acted in good faith, doing the best he could in the circumstances. However that is not a complete answer to the problem created by s.79a. I think I am obliged to find that the fulfilment of the responsibility that was cast upon the police sergeant by the section might have made a difference. It might have led to Turner deciding not to talk to the police officer at all. I do not overlook the fact that Turner was cautioned at the outset of the formal interrogation. However, compliance with the other parts of the section might have tipped the scales against talking at all or might have limited his admissions, if indeed he made any. (I don’t know that.) In short, I certainly cannot be satisfied that compliance with the Act would not have produced a different result so far as the subsequent interrogation was concerned.”
(emphasis added).
I do not see how there could have been any difference in the result in the present case if the various irregularities had not occurred. They are of no real consequence in terms of the issues now relevant.
There is a public interest in convictions being obtained with respect to those who have been proved, on reliable evidence, to have committed an offence. There are, of course, other considerations. There is some superficial attraction to the view that the errors in this case set an unacceptable general standard for prosecution. However, when one analyses the situation there is nothing in this case which would justify a discretion being exercised in accordance with the principles mentioned in Police v Jervis and Holland. The chance situation of a detective being detected at random by a probationary constable and the efforts made to assist the probationary constable were unfortunate. The general orders of the police to provide a procedure for dealing with the investigation of alleged offences against members of the police force are not to be criticised.
The defendant bore the onus of establishing, on the balance of probabilities, the facts necessary to enable a discretion to be exercised. That onus was not discharged in this case (Police v Fountaine (1999) 74 SASR 26 at 44-5). If the respondent were to argue that the police, knowingly or unknowingly, were using non-approved equipment for the Alcotest so as to impact on the justification for the subsequent breath analysis at Glenelg, it was necessary for the respondent to establish the relevant facts positively on the balance of probabilities. The respondent did not establish this. He managed only to exclude positive proof on the police case that the Alcotest equipment was approved. However, in view of the decision in Barber v Police this did not assist the respondent.
If one takes the view that the police conduct did provide some material on which the discretion might be exercised, the countervailing considerations are so strong as to overwhelm the facts to which the Magistrate may have properly brought to account in reaching her conclusions. In the absence of the receipt of the evidence under s 47G(1) in this case, cogent evidence of guilt will be excluded so as to allow the guilty to escape.
In Question of Law Reserved No.1 of 1998 (1998) 70 SASR 281 at 288 Doyle CJ warned that the Bunning v Cross discretion and its object
“...do not give the courts a roving commission to search for illegality or impropriety by those responsible for the enforcement of the law. The discretion does not give a power to exclude evidence whenever there is some association between that evidence and illegal or improper conduct, or whenever an attempt is made to bolster prosecution evidence by resort to illegal or improper conduct. To exercise the discretion in that fashion would be to use the exclusion of evidence as a means of punishing wrongdoing by those responsible for the enforcement of the law. That is not the responsibility of the courts. Or, to be more precise, the exclusion of evidence is not the means by which wrongdoing is to be punished by the courts. As the majority said in Ridgeway (at 37) with reference to improper conduct by law enforcement officers in the course of investigating criminal activity:
......... “A finding that law enforcement officers have engaged in such clearly improper conduct will not, of course, suffice of itself to give rise to the discretion to exclude evidence of the alleged offences or of an element of it. As with the case of illegal conduct, the discretion will only arise if the conduct has procured the commission of an offence with which the accused is charged.”
In other words, the discretion arises when the improper or illegal conduct has procured the commission of an offence or has enabled the prosecution to obtain the relevant evidence.
As I have already said, it is when the illegality or impropriety is the means by which the evidence is procured that the discretion arises for consideration. It arises then because allowing the use of the evidence, obtained in this fashion, may appear to condone illegal or improper conduct, and may compromise the court’s commitment to the upholding of the law.”

In terms of the personal position of the respondent, I find it difficult to see how there was any relevant unfairness to him. Nor can I see how an experienced detective could have been put at a disadvantage by what transpired. Moreover, I cannot see how the respondent would be in any different position if his knowledge as an experienced detective is ignored.
Even if the admission of the evidence was not unfair to the respondent and the evidence was not obtained in circumstances leading to its rejection on public policy grounds, the court still retains a discretion with respect to the admission of evidence whose prejudicial value is greater than its probative value. As LanderJ said in Police v Fountaine at 54:
“In theory a third consideration could arise where the Court might exclude the evidence in the exercise of its discretion where the prejudicial effect of the evidence exceeds its probative value: R v Swaffield at 355. It is difficult to envisage circumstances in cases of this kind where the evidence which would establish the concentration of alcohol or other drug in a person’s blood is not unfair to the accused and the admission of which is not contrary to public policy but the evidence is more prejudicial than it is probative.
However because evidence of this kind might be tendered in relation to offences other than road traffic offences the possibility of such a discretion being enlivened cannot be ruled out.”
The present case is not one in which such a discretion arises.
In my view the Magistrate made an error in the exercise of her discretion to exclude the evidence of the breath analysis test at Glenelg Police Station. That evidence should be admitted. The appeal should be allowed. The order of acquittal will be set aside and in lieu a conviction will be recorded in respect of a Category 2 offence.
I will hear the parties as to consequential orders.

[2000] SASC 89

19 April 2000