Robin v Police

ROBIN v POLICE
[2002] SASC 33

GRAY J: This is an appeal against conviction.
The appellant, Steven Christopher Robin, was charged with drink driving. The complaint was in the following terms:
“On the 12th day of June, 1999 at Adelaide in the said State drove a motor vehicle on a road namely Anzac Highway while there was present in his blood the prescribed concentration of alcohol as defined in Section 47a of the Road Traffic Act, 1961 and section 47b of the Road Traffic Act, 1961. It is further alleged that the concentration of alcohol was .082 grams in a hundred millilitres of blood.”[1]
[1] Section 47B provides:
“(1) A person must not-
(a) drive a motor vehicle; or
(b) attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
Mr Robin pleaded not guilty and the trial proceeded before a magistrate.
The Crown Case - An outline
During the early hours of Saturday morning Mr Robin was driving a 4WD vehicle on Anzac Highway. At approximately 1.20 am he approached a police random breath testing station.[2] The police signalled for him to stop.
[2] established pursuant to section 47DA of the Road Traffic Act 1961 (SA)
A police officer directed Mr Robin to submit to an alcotest.[3] He complied with this requirement at 1.25 am. The alcotest produced a positive result. This indicated that more than the legally prescribed alcohol concentration might be present in his blood. Mr Robin was then required to submit to a breath analysis test. Another police officer conducted that test at 1.44 am.[4] The reading indicted that the concentration of alcohol present in Mr Robin’s blood was 0.082 grams of alcohol per 100 millilitres of blood.
[3] The alcostest was conducted using a Lion Alcolmeter SD-400.
[4] The breath analysis was conducted using a Drager Alcotest 7110
The police noted that Mr Robin was polite and cooperative. His stance, manner of walking, appearance of his eyes, and speech were considered normal. His clothing was tidy. However, a slight odour of liquor was detected on his breath.
Mr Robin was then given oral and written notice pursuant to section 47G(2a)(a)[5] of the Road Traffic Act 1961 (SA) (“the Act) and regulation 4 of the Road Traffic (Breath Analysis and Voluntary Blood Test) Regulations 1994 (“the Regulations”). As a consequence, he requested a blood test kit. At approximately 1.55 am this was provided.
[5] Section 7(2) of the Acts Republication Act 1967 (SA) provides that the Attorney General may issue directions to the Commissioner of Statute Revision to:
At 3:00 am Mr Robin attended the Royal Adelaide Hospital (“RAH”) where a medical practitioner, (“the practitioner”) took a sample of his blood. The practitioner divided the sample into two approximately equal portions, placed them in sealed containers and secured their caps. He marked each sample with an adhesive seal bearing the same identification number.
The practitioner completed the certificate contained in the blood test kit.[6] It was headed “Form of Certificate [Section 47G(1a)(reg6)]”. Next to the heading “Patient’s Sample” the practitioner wrote:
“Patient Sample placed in Box
i/c [with] Police Sample”
A box next to the words “Personally given to the patient” was left blank. The sentence “I personally gave one container to the patient” was crossed out. The practitioner signed the certificate. Mr Robin signed the certificate and retained the original.
[6] This was in the form specified in Schedule 3of the Regulations.
The practitioner placed both containers of blood in a locked ‘blood box’[7] at the RAH. A police officer in accordance with established procedures opened the blood box. He removed both containers and the accompanying certificates. These were then taken by the police officer to the Forensic Science Centre on 16 June 1999.
[7] There was no evidence about the ‘blood box’ or the nature of this receptacle.
An analyst examined the blood from one of the containers and found that it contained not less than 0.064 grams of alcohol per 100 millilitres of blood. The whereabouts of the second container and what happened to it are unknown.[8]
[8] It may have been held for 12 months by Forensic Science Centre and then destroyed.
At trial the Crown relied on the presumptions created by section 47G of the Act. The legislation, to be discussed in detail later, makes it mandatory in specified circumstances for it to be presumed that the concentration of alcohol indicated by the breath analysis test was present in a defendant’s blood at the time of the analysis. If that presumption is not rebutted, a conclusive presumption arises under section 47G(1ab) that the indicated concentration was present in a defendant’s blood for two hours immediately preceding the analysis.
The Defence Case – An Outline
Mr Robin did not dispute the Crown’s allegation that he was stopped by police who conducted an alcotest and then a breath analysis test.[9] He gave evidence that he attended the RAH with the blood test kit. His evidence included:
[9] No complaint was made of the procedures undertaken by the police at the time that both tests were conducted.
“Q.What did you understand would happen at the hospital when you [were] present there.
A. I was not too clear. I believed that I had to have a blood sample to prove precisely the blood alcohol level.
…
Q. Can you relate to the court what happened when you presented to that medical practitioner.
A.The medical practitioner took on the air of authority, saying this is what we do in this situation and basically from there, I followed instructions, by that doctor.
…
Q.Were you, after the sample was taken, provided with a sample of blood.
A.No.
Q.Did you see what happened to those containers of blood.
A.No, I didn’t. They basically said it will be looked after from here.
…
Q.In any event, the form you took away with you was prepared in your presence by the doctor.
A.Correct.
Q.That was prepared by information you gave him.
A.No. The doctor, on arrival, assumed control of the situation and basically said I know what to do with this. This is a standard procedure. He may not have used exactly those words but that’s the impression and I basically relaxed and said it looks like this is the standard administrative/medical procedure that takes place and I just trusted the people that were in charge.
...
Q.Did you pick up your sample [that] was placed in the box with the police sample.
A.To be honest, I believed that - I know I didn’t take any blood away with me. I believed from the way the medical staff behaved that that was a normal case and there was no option. The hospital was very methodical in their procedure.”
Mr Robin’s counsel objected to the admissibility of the evidence of the breath analysis test. It was submitted that the evidence should have been excluded either in the exercise of the public policy discretion recognised in Bunning v Cross[10] or alternatively in the exercise of the ‘general unfairness discretion’ referred to in R v Lobban.[11]
[10] (1978-79) 141 CLR 54
[11] (2000) 77 SASR 24
In his reasons, the magistrate outlined the way in which the evidence of the breath analysis test was challenged and the trial was conducted. He said:
“Ms Fuller objected to the admissibility of Exhibits P7 and P10 in so far as they referred to the concentration of alcohol indicated by the breath analysing instrument used to analyse the sample of the defendant’s breath. With the consent of both parties, I received those exhibits de bene esse and deferred submissions and my rulings until all of the evidence relevant to the admissibility of those two exhibits had been received.
The defendant gave evidence briefly in answer to the charge. His evidence was primarily concerned with the circumstances surrounding the taking and disposition of the blood sample.
In support of his evidence, his counsel, Ms Fuller, tendered two exhibits which consisted of:
Exhibit D1 - a copy of a certificate dated 21 June, 1999, purporting to be signed by D.C. Vozzo and to certify the result of an analysis of a sample of blood in a bottle bearing the identifying number B14363;
Exhibit D2 - a copy of a certificate purporting to be signed by a medical practitioner, [the practitioner] and to certify that:
(a)at 0300 on 12 June, 1999, he took a sample of blood from the defendant;
(b)he divided the sample into two approximately equal portions, placed them in containers and secured the caps;
(c)he then sealed each container by the application of an adhesive seal bearing the identifying number B14363;
and
(d)he placed the police sample and the patient’s sample in the RAH blood box.”
Counsel for the defence did not advance a ‘no case to answer’ submission at any stage during the proceedings.
The Magistrate’s Findings
The magistrate made the following findings:
-       at 1.20 am on Saturday, 12 June, 1999, the defendant
was driving a motor vehicle, namely, a Toyota 4WD
vehicle, in a south-westerly direction along Anzac
Highway at Adelaide;
-       at about that time his vehicle was stopped at a random
breath testing station established pursuant to s.4DA of
the Act;
-       at about 1.20 am, FCC Summersides, a member of the
police force who was performing uniform duties at the
breath testing station, required the defendant to provide
a sample of his breath into an alcotester. The defendant
submitted to the alcotest which indicated that the
prescribed concentration of alcohol may then have been
present in his blood;
-       FCC Summersides required the defendant to submit to a
breath analysis;
-       the defendant alighted from his vehicle.   FCC Summersides
had a brief conversation with him and obtained his personal
particulars;
-       FCC Summersides then had a conversation with FCC
Mark Bowels who was acting in the capacity of the
breath analysis operator at the breath testing station.
She identified the defendant to him;
-       FCC Bowels was authorised by the Commissioner of
Police to operate breath analysing instruments pursuant
to s.47G of the Act;
-       FCC Bowels required the defendant to supply a sample
of breath for analysis in accordance with his directions;
-       in compliance with that requirement, at 1.44 am the
defendant furnished, for analysis, a sample of his breath
into apparatus known as a Drager Alcotest 7110 which
was a breath analysing instrument within the meaning
of the Act;
-       the breath analysing instrument was in proper
order and was properly operated by FCC Bowels;
-       in relation to the breath analysing instrument, FCC
Bowels complied with the provisions of the Act with
respect to breath analysing instruments;
-       at about 1.46 am, in the presence of FCC Summersides,
FCC Bowels delivered to the defendant, a statement in
writing as required by ss.(2) of s.47G of the Act;
- in compliance with (2a) (a) and (b) of s.47G of the Act,
FCC Bowels then read to the defendant the prescribed
oral advice in Part A of Schedule 1 and delivered to
the defendant the prescribed written notice being a copy
of Part B of Schedule 1, which the defendant appeared
to read;
-       in response to FCC Bowels enquiry, the defendant
indicated that he wanted a blood test kit;
-       at about 1.55 am, FCC Bowels completed Schedule 2
in accordance with s.47G(2a)(b) and delivered to the
defendant, a blood test kit, serial number B14363;
-       at about 1.57 am, FCC Bowels handed the defendant
a completed certificate as required by s.47G(5) of the
Act;
-       between 2.00 and 2.05 am, FCC Summersides had
a further conversation with the defendant. In the
course of that conversation, the defendant said that
he had consumed five schooners of VB since 5.30
and that he had had his last drink, a shooter, about
an hour earlier;
-       at 0300 on the 12 June, 1999, at the Royal Adelaide
Hospital, a medical practitioner, [the practitioner],
took a sample of blood from the defendant;
-       [The practitioner] divided the sample into two approximately
equal portions, placed them in containers and secured
the caps. He then sealed each container by the
application of an adhesive seal bearing the identifying
number B14363. He placed both containers in a locked
blood box at the Royal Adelaide Hospital ;
-       a member of the police force subsequently opened the
blood box and collected both those containers and
the accompanying certificates;
-       both containers bearing the identifying number
B14363 were received at the Forensic Science Centre
on the 16 June, 1999;
-       an analyst, D.C. Vozzo, examined for the presence of
alcohol, the portion of the sample of blood in one of those
containers. The result of his analysis was that that portion
of the sample contained not less than 0.064 grams of
alcohol per 100 ml of blood;
-       the whereabouts of the portion of the sample of blood
in the second container is unknown. It may possibly
have been held by the Forensic Science Centre for
twelve months and then destroyed.”
The magistrate continued:
“In my assessment, the defendant was an honest witness who endeavoured to give a truthful account of events within his knowledge to the best of his recollection and ability. He gave evidence almost seventeen months after the 12 June, 1999. Understandably, he had difficulty remembering some details of what happened in the early hours of that morning. However, in my assessment, his evidence was reliable generally, if not in every detail. On the basis of his evidence I am satisfied beyond reasonable doubt, and I find that:
(1)    on the 12 June, 1999, at the Royal Adelaide Hospital:
(a)     [The practitioner] did deliver to the defendant the
  original of Exhibit D2 which bears the
defendant’s signature; [D2 was the
original signed certificate referred to
in Regulation 6(f)].
(b)     [The practitioner] did not deliver to the defendant, one
  of the sealed containers containing part of the
  blood sample. The practitioner did not, therefore,
  deal with one of the sealed containers in
  accordance with the procedures prescribed by
  sub-regulation 6(i) of the Road Traffic (Breath
  Analysis and Blood Test) Regulations, 1994;
(2)    the defendant did not subsequently receive:
(a)     one of the sealed containers containing part
  of the blood sample taken on the 12 June, 1999;
or
(b)     any notice as to its whereabouts;
(3)    the defendant did subsequently receive by post, a copy
                  of Exhibit D1 informing him of the result of the
                  analysis by State Forensic Science of the part of the
blood sample contained in one of the sealed containers;
(4)    until the defendant received legal advice in about
                  September or October, 1999, he did not realise that
                  he should have received one of the sealed containers
                  containing part of his blood sample.”
The magistrate found the charge proved beyond reasonable doubt.[12]
[12]The magistrate considered that the appropriate penalty was the minimum prescribed by law. He
convicted Mr Robin and disqualified him from holding or obtaining a driver’s licence for a period of six
months to commence from 12.01 am on 7 December 2000. He then suspended the operation of that
disqualification pending the hearing and determination of any appeal.
Error
As earlier observed the challenged evidence was admitted de bene esse. The magistrate made his ruling with respect to this evidence at the time he delivered judgment. His reasons for refusing to exclude the results of the blood analysis test were included in his written reasons.
The magistrate took the view that matters raised by defence counsel did not affect the reliability of the evidence tendered by the Crown. He found that they involved no impropriety or misconduct on the part of the police or law enforcement authorities. However he added:
“Of course, the loss of the opportunity was unfair to the defendant and denied him the benefit of an important safeguard.”
The magistrate concluded that there was no scope for the legitimate exercise of the general unfairness discretion. [13] He considered Mr Robin’s case to be “a case like” Police v Jervis[14]. However it is apparent that he did not have full regard to the subsequent disapproval of Jervis in Lobban[15] where Doyle CJ said:
“On reflection, my reasons in Police v Jervis did not adequately identify the availability and scope of what Martin J has described as the general unfairness discretion. The approach which I took to the unfairness discretion in Jervis may, as a result of that, have been more limited than it should have been. In the light of the facts of the two appeals considered by the Court in that case, the approach taken by Martin J does not cause me to have any doubts about the correctness of the decision in Jervis. Mere failure to comply with or to satisfy a statutory requirement connected with the obtaining of evidence, to be used by the prosecution, does not of itself amount to unfairness. The exercise of the unfairness discretion requires a more careful consideration of the circumstances. The scope for the exercise of the general unfairness discretion, in cases like Jervis, will be limited when the matters relied upon by the defendant do not affect the reliability of the evidence tendered by the prosecution, and involve no impropriety or misconduct by the police or law enforcement authorities more generally. However, to the extent that my reasons in Jervis might imply that the unfairness discretion is available only in the sort of situation just identified by me, I have expressed myself more narrowly than I should.”
[13] This finding of unfairness was not challenged by the Crown.
[14] (1998) 70 SASR 429
[15] (2000) 77 SASR 24 at [2]
In addition as Martin J observed:[16]
“In South Australia, the Court of Criminal Appeal in Jervis was concerned with the question of discretionary exclusion of non-confessional evidence. However, the appeal proceeded on the assumption that the unfairness discretion discussed in Swaffield was available. Doyle CJ specifically said he was not to be taken as deciding that the Swaffield unfairness discretion was applicable to non-confessional evidence and he observed that the general tenor of the High Court pronouncements left him with a doubt as to its availability outside the realm of confessional evidence. It appears that the Court was not taken to the High Court or Queensland authorities to which I have referred and was not asked to consider whether a more general unfairness discretion exists in addition to the Swaffield unfairness discretion. Although reference was made to Edelsten and Rozenes v Beljajev, it was a reference for the purposes of considering the ambit of the Swaffield unfairness discretion and whether, given the requirement to ensure that an accused receives a fair trial, the Swaffield unfairness discretion should be limited to non-confessional evidence. The Court in Jervis was not deciding whether a further head of discretion based on unfairness to an accused exists in addition to the Swaffield unfairness discretion.”
[16] (2000) 77 SASR 24 at [74]:
It was not disputed that the practitioner failed to comply with Regulation 6. That conduct appears to have been deliberate. The non-compliance may have arisen because of misunderstanding or confusion about the procedure or some other unidentified reason. The police officer charged with the responsibility of the collection, and delivery of the sample compounded the practitioner’s departure from Regulation 6 by delivering both samples, with the same identification number, and accompanying certificates to the State Forensic Science Centre.
The failure to comply with Regulation 6 both on the part of the practitioner and the police officer meant that Mr Robin lost the possibility of adducing independent evidence that could be used to rebut the statutory presumptions.

It was conceded by the Crown that the magistrate had erred in his approach. In particular, it was accepted that the magistrate had applied a gloss on the test when considering the exercise of the general unfairness discretion. It was accepted that his approach involved a fettering of his discretion. I agree.
In view of the Crown’s concession it is unnecessary to further address the magistrate’s reasons.
The Reconsideration
The Issues
Counsel for Mr Robin complained that the results of the breath analysis should have been excluded.
-    It was submitted that the Bunning v Cross discretion should have been applied to Mr Robin’s case. It was said that the discretion was not limited to illegality on the part of the police and not limited to impropriety and illegality occurring during the actual physical act of obtaining evidence.
-    It was submitted that the Bunning v Cross discretion should have extended to any illegality or impropriety connected with the obtaining of evidence and that this concept should be broadly applied.
-    It was said that an application of the considerations outlined by Kirby J in Swaffield should have led to the exclusion of the breath analysis test evidence. The overall discretion enunciated in Swaffield is not limited to confessional evidence even if the general unfairness discretion identified in Lobban only applied the evidence should have been excluded.
The Legislative Scheme[17]
[17] In this judgment the legislative scheme incorporates both the Act and Regulations.
The Act was consolidating legislation which amended certain enactments relating to road traffic. Division 5 deals with persons driving motor vehicles whilst under the influence of liquor or drugs. Section 47B makes it an offence to drive whilst having a prescribed concentration of alcohol in blood and sets out the penalties for an offence under that section. Section 47DA gives the police power to establish breath testing stations in order to test drivers randomly. Section 47E empowers the police to stop drivers and require them to submit to a breath analysis test when certain conditions have been satisfied or suspicions aroused. Section 47G deals with the evidence necessary to prove an offence. As earlier observed, the legislation sets up presumptions in favour of the Crown.
Section 47G provides:
“(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 ...”
Section 47G(1)(1a)(a) limits the evidence that may be adduced to rebut the presumption. That evidence is an analysis of a sample of blood taken and dealt with in accordance with section 47I or in accordance with the procedure prescribed by the regulations. In this way the regulations are integrated as part of the legislative scheme.
Regulation 5 sets out the administrative procedures to be followed when a driver requests a blood test kit for the purposes of section 47G(2a)(b). Regulation 6 then provides:
“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 a 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 was taken;
(f)the medical practitioner must then complete a certificate in the form set out in schedule 3 (being a form provided as part of the blood test kit) by inserting the particulars required by the form;
(g)the certificate must be signed by the medical practitioner certifying as to the matters set out in the form;
(h)the certificate must also bear the signature of the person from whom the blood sample was taken, attested to by the signature of the medical practitioner;
(i)the original of the signed certificate must then be delivered to the person from whom the blood sample was taken together with 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 certifying as to the following matters:
(i)     the date of receipt at State Forensic Science of the blood sample container and the certificate accompanying the blood sample container;
(ii)    the identifying number appearing on the adhesive seal used to seal the blood sample container;
(iii)   the name and professional qualifications of the analyst;
(iv)   the concentration of alcohol found to be present in the blood expressed in grams in 100 millilitres of blood;
(v)     any factors relating to the blood sample or the analysis that might, in the opinion of the analyst, adversely affect the accuracy or validity of the analysis;
(vi)   any other information relating to the blood sample or analysis or both that the analyst thinks fit to include;
(n)the analyst’s certificate must be sent by post to the person from whom the blood sample was taken at the address shown as the person’s address on the certificate accompanying the blood sample container;
(o)a copy of the analyst’s certificate must be sent to or retained on behalf of the Minister;
(p)a copy of the analyst’s certificate must also be sent to the Commissioner of Police;
(q)the person from whom the blood sample was taken may cause the sample of blood as contained in the blood sample container delivered to that person to be analysed to determine the concentration of alcohol present in the blood.”
In order to redress the imbalance brought about by the presumptions the legislative scheme provides rigorous safeguards to protect the rights of drivers who may be dissatisfied with the breath-testing regime or the procedures followed. The scheme provides drivers with the opportunity to have a portion of the blood sample independently tested. The results can then be compared with that the results from the blood tested by the State. These legislative safeguards are critical. They are built into and form an integral part of the legislative scheme.
The importance of these safeguards was addressed in French v Scarman[18] where King CJ said:
“Section 47e places an obligation upon a citizen, in certain circumstances, to submit to an alcotest or breath analysis or both. The legislature has recognised that by requiring the citizen to submit to those tests, it places him in a position in which his fate will be determined by the accuracy of the instrument and the honesty and reliability of the police evidence as to its results. It further recognises that the citizen has no control over either of these factors. This recognition finds expression in the provisions of s. 47f which provides a safeguard. This safeguard takes the form of an obligation on police officers to facilitate the taking of a blood test if the citizen requests it. The safeguard is illusory if the obligation on the part of the police to facilitate a blood test arises only if the citizen makes the request in the words of the section. The legislature cannot have supposed that a person requested to submit to a breath test would have the details of the section in his mind. It seems to me that where a person, who is requested to undergo an alcotest or a breath analysis, indicates a desire for a blood test, it is incumbent upon the police officer, not only to inform him that he may have a blood test taken by a doctor named by him and at his own expense, but also to indicate that if he desires the blood test to be taken upon that basis, arrangements will be made for that to be done.
...
The section imposes no penalty upon a police officer who fails to comply with sub-s. (2). Perhaps the legislature assumed that police officers would not wish to place difficulties, either by action or inaction, in the way of a person who wished to exercise his right to have a blood test. 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 of course 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. In my opinion, the learned Special Magistrate correctly exercised his discretion.”
These principles were reasserted by King CJ in Ujvary v Medwell:[19]
“The blood test is the only means by which a citizen can question the correctness of the result of the breath analysis. It must be the paramount concern of the Courts to ensure that the citizen has ready access to that check. If obstacles are placed in the way of the citizen, the evidence of the breath analysis should be excluded unless there is some cogent reason to admit it. When applying Bunning v Cross principles, the public interest in securing a conviction for an individual drink-driving offence will rarely outweigh the public interest in protecting the citizen’s right to have the results of the breath analysis checked by means of a blood test.”
[18] (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 342
[19] (1985-86) 39 SASR 418 at 420. See also Pacillo v Hentschter (1988) 47 SASR 261 at 255, Tann v
Schild (1990) 54 SASR 523 at 529
In Police v Erwin[20] a nurse, who took blood failed to provide the defendant with the container to which he was entitled. Instead, both containers were sent to State Forensic Science for analysis. Nyland J upheld a magistrate’s exercise of discretion to exclude the blood alcohol evidence and found that the nurse had acted in accordance with incorrect police advice. In doing so she said:
[20] Unreported S 6375 at 3 Nyland J
“The appropriate starting point for a consideration of the issue of the existence of the discretion is The Queen v Ireland[21]. In that case, the High Court considered the admissibility of evidence illegally obtained, and in particular evidence of police interrogation after a refusal by a suspected person to answer further questions and of photographs and a medical examination made unlawfully. Barwick CJ said (at p335):
[21] (1971-1972) 126 CLR 321
‘Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.’
...
In Bunning v Cross the breach of legislation related to the initial requirement to provide a sample. In the course of their joint judgment, Stephen and Aickin JJ made it clear that their remarks were made on the basis that the safeguards provided by the legislation to protect the defendant had been complied with. They said at p77:
‘If a ‘breathalyzer’ test, properly performed and with all attendant safeguards observed, discloses an excessive level of alcohol in a motorist’s blood it is in no sense ‘unfair’ to use it in the conviction of the motorist, just as it is surely not ‘unfair’ to use, against a person accused of having in his possession weapons or explosives, evidence obtained by means of an unlawful body search so long, once again, as that search is so conducted as to provide all proper safeguards against weapons or explosives being ‘planted’ on the accused in the course of the search.’
Further, at p80, they said:
‘Finally it is no doubt a consideration that an examination of the legislation suggests that there was a quite deliberate intent on the part of the legislature narrowly to restrict the police in their power to require a motorist to attend a police station and there undergo a ‘breathalyzer’ test. This last factor is, of course, one favouring rejection of the evidence. However it is to be noted that by the terms of s66(1) the legislation places relatively little restraint upon ‘on the spot’ breath testing of motorists by means of an ‘alcotest’ machine. It is essentially the interference with personal liberty involved in being required to attend a police station for breath testing, rather than the breath testing itself (albeit by means of a more sophisticated appliance), that must here enter into the discretionary scales.’
In Bunning v Cross, Stephen and Aickin JJ referred to conduct by ‘the authorities’ not just by the police. In some cases the unfairness may arise from the objective impact of the state of affairs of an accused person, quite apart from any causal behaviour or failure by the police. ... the clear intent of the legislation is for practitioners to strictly adhere to the provisions of the legislation which must include the Regulations. The Regulations include mandatory duties on the part of the medical practitioner which require the delivery of the blood samples to the person from whom the sample was taken as well as the member of the police force. The person from whom the sample is taken has no say in the matter.”
In Police v Jelinek[22] Mullighan J when considering the discretionary exclusion of breath analysis evidence said:
“The motorist faces serious consequences if the breath analysis indicates that he is driving with an excess concentration of alcohol. He may have been required to submit to the test even though his or her manner of driving is impeccable. Such a circumstance frequently occurs at a random breath testing station. Not only may that requirement constitute a significant invasion of personal liberty, but the accuracy of the test may only be challenged in very limited circumstances. It is not surprising that Regulation 6 should be expressed, in the main, in mandatory terms. Compliance with them is a matter of great importance as a blood test is the only means by which the accuracy of the result of the breath analysis can be questioned. The procedures are designed to preserve the integrity of the blood samples, so that the motorist is not deprived of this only basis to question the result of the breath analysis, the accuracy and reliability of the analysis of the sample, accurate recording of the result of the analysis so that the motorist has the capacity to arrange for independent analysis. Each of those matters is of considerable importance. Whilst it is for the motorist to say whether a blood analysis is to occur, once that decision is made, the procedures laid down in the Regulations must be followed. Failure to do so may cause substantial prejudice to the motorist.
...
The importance of this procedure is obvious. Not only does it enable the motorist to select his or her own analyst as a check upon the analysis of State Forensic Science, but it is a check upon the integrity of the earlier procedures. Such an independent analysis in those circumstances is a guard against tampering with the blood sample, contamination or error which may affect the reliability and accuracy of the blood analysis. The importance of compliance with this procedure cannot be understated.”
[22] (1998) 200 LSJS 441 at 448-449
Recently there has been considerable judicial discussion about the scope of the public policy discretion and the general unfairness discretion. In Lobban it was considered that French and Erwin were applications of the general unfairness discretion.
In Lobban[23] Martin J reviewed French and said:
“In my opinion, King CJ applied the principles applicable to the public policy discretion rather than those applicable to the exercise of a general discretion based upon considerations of unfairness to the accused. A similar view of the approach adopted in French v Scarman was taken by Doyle CJ in Police v Jervis at 439. King CJ was of the view that the principles in Bunning v Cross were attracted because, although the evidence of the breath analysis reading had been obtained lawfully and properly, the obtaining of that evidence was very closely connected in time and circumstances to the implementation of a statutory safeguard related to that evidence which the police unlawfully ignored.”
... circumstances such as those found in French v Scarman can fairly be encompassed within the ambit of a general unfairness discretion which has as its primary focus considerations of unfairness to the accused.”
[23] (2000) 77 SASR 24 at [37], [39] and [41]

In Singh v Police[24] Martin J considered a situation where the wrong blood test kit had been used by a practitioner. A section 47I kit was used. This kit was designed for practitioners to use when taking blood from persons admitted to or attending hospital for treatment following a motor vehicle collision. The practitioner involved was apparently unaware of the terms of the statute, made a mistake and selected the wrong kit. It was accepted that the section 47I procedure had been followed correctly. Mr Singh received notice of the whereabouts of his container of blood but elected not to collect it and have it independently tested. Martin J addressed section 47G(1a) in the following terms:
“Section 47G(1a) must be considered in the context of the overall scheme of the drink-driving provisions in the Act. Parliament has taken the view that strict measures of control and ease of proof for the prosecution are required because of the prevalence of drinking and driving and the disastrous consequences that ensue. For the purposes of the drink-driving provisions, Parliament has required the courts to attribute an artificial accuracy to the readings given by breath analysing instruments. The artificial nature of the scheme is well demonstrated by the presumption that, for up to two hours preceding the analysis, the concentration of alcohol indicated by the breath analysing instrument was present in the blood throughout that period.
In the context of that scheme, Parliament has sought to ameliorate the strict operation of the provisions and to ensure that a defendant has the capacity to rebut the artificial presumption in specified circumstances. As an ameliorating provision, in my opinion it should not be subjected to an unduly restrictive interpretation adverse to a defendant in respect of the issue now under consideration. Parliament was not concerned with whether the sample of blood upon which a defendant might seek to rely in rebutting the presumption was taken compulsorily or voluntarily. The fact that the blood was taken voluntarily does not mean that it was not ‘taken and dealt with in accordance with s 47I’. The purposes of the legislature are achieved if either procedure is followed.
In my opinion, evidence of the result of the analysis of the sample of blood taken from the appellant would have been admissible in rebuttal of the presumption if the appellant had sought to lead that evidence. Evidence of the result of the analysis by Forensic Science could have been led. Alternatively, the appellant could have collected his half of the sample and had it analysed. The result of that analysis would have been admissible.
In these circumstances, no unfairness arose as a consequence of the actions of the medical practitioner. There was no basis upon which the Magistrate could properly have rejected the prosecution evidence.
A defendant who is deprived of the opportunity of having a sample of blood taken is in a different position from the appellant. As previously discussed, one half of the appellant’s sample had been analysed by Forensic Science and the appellant knew the result of that analysis. The appellant could have led evidence before the Magistrate of the result of that analysis for the purpose of demonstrating that, if admissible, that result would have assisted a challenge to the presumption. The appellant could also have led the results of that analysis before this Court if he had wished to do so. In addition, the appellant had the opportunity of taking simple and inexpensive steps to have his share of the sample independently analysed with a view to demonstrating that, if the result had been admissible, there was a reasonable prospect that the result of the analysis would have assisted a challenge to the presumption. During the course of submissions I intimated that I would receive favourably an application to call evidence concerning analysis of the blood sample, but the appellant elected not to pursue that opportunity. It is obvious that no unfairness would have been caused by the inability of the appellant to lead evidence of an analysis of the blood if the result of the analysis would not have assisted in challenging the presumption.”
The Nature of the Discretion
[24] [2000] SASC 114 at [21-24], [28]
The public policy discretion was discussed in Bunning v Cross[25] in the judgment of Stephen and Aickin JJ:
“What Ireland involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.
... it is by reference to large matters of public policy rather than solely to considerations of fairness to the accused that the discretion here in question is to be exercised ...”
The public policy discretion is based on the need to protect the processes of the court whilst maintaining public confidence in the administration of justice. This principle was also described by Deane J in Pollard v R:[26]
“... the principal considerations of ‘high public policy’ which favour exclusion of evidence procured by unlawful conduct on the part of investigating police transcend any question of unfairness to the particular accused. In their forefront is the threat which calculated disregard of the law by those empowered to enforce it represents to the legal structure of our society and the integrity of the administration of criminal justice. It is the duty of the courts to be vigilant to ensure that unlawful conduct on the part of the police is not encouraged by an appearance of judicial acquiescence. In some circumstances, the discharge of that duty requires the discretionary exclusion, in the public interest, of evidence obtained by such unlawful conduct. In part, this is necessary to prevent statements of judicial disapproval appearing hollow and insincere in a context where curial advantage is seen to be obtained from the unlawful conduct. In part it is necessary to ensure that the courts are not themselves demeaned by the uncontrolled use of the fruits of illegality in the judicial process.”
[25] (1978-79) 141 CLR 54 at 74 and 77
[26] (1992-1993) 176 CLR 177 at 202-203
Unfairness Discretion
A trial judge always has an overriding duty to secure a fair trial. In Jago v District Court (NSW)[27] Deane J said:
“The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.”
As Gaudron J said in Dietrich v The Queen[28]
“The expression ‘fair trial according to law’ is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognizes that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with law. Thus, the overriding qualification and universal criterion of fairness!
... Speaking generally, the notion of ‘fairness’ is one that accepts that, sometimes, the rules governing practice, procedure and evidence must be tempered by reason and commonsense to accommodate the special case that has arisen because, otherwise, prejudice or unfairness might result. Thus, in some cases, the requirement results in the exclusion of admissible evidence because its reception would be unfair to the accused in that it might place him at risk of being improperly convicted, either because its weight and credibility cannot be effectively tested or because it has more prejudicial than probative value and so may be misused by the jury. In other cases, the procedures may be modified, for example, to allow evidence to be given through an interpreter, or to allow for special directions to counteract the effect of pre-trial publicity or even something said or done in the trial itself. Sometimes the venue may be changed to counteract some perceived difficulty in obtaining a fair trial in the area in which the offence was committed; in other cases proceedings may be adjourned, for example, to enable evidence to be checked or to allow for pre-trial publicity to abate. The examples are not exhaustive. They are, however, sufficient to show that the requirement of fairness is, and, in various different contexts, has been recognized as, independent from and additional to the requirement that a trial be conducted in accordance with law.”
[27] (1989-1990) 168 CLR 23 at 56
[28] (1992-1993) 177 CLR 292 at 362-363
It is settled that any unfairness must relate to the position of an accused. In Van der Meer v The Queen[29] Wilson, Dawson and Toohey JJ said:
“In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him ... Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.”
It is settled that fairness is not limited to the question of reliability.[30]
[29] (1998) 62 ALJR 656 at 666
[30] Duke v The Queen (1942-1991) 180 CLR 508 at 513
In Lobban, the court identified three distinct, although overlapping, discretions relating to the exclusion of evidence. They were:
- an overall discretion limited to confessional evidence
- a public policy discretion not limited to confessional evidence
- a general unfairness discretion applicable to any evidence
Martin J held that it was appropriate to consider those factors which were relevant to the exercise of the public policy discretion when considering an application of the general unfairness discretion. He said:[31]
“… the concept of fairness to an accused is a broad one and the remarks of the majority in Swaffield, although made in the context of the unfairness discretion concerned with confessional evidence, are equally applicable to the operation of the general unfairness discretion. The purpose of both discretions includes the protection of “the rights and privileges of the accused”, which rights “include procedural rights” (at 189 and 197). Both discretions look ‘to the risk that an accused may be improperly convicted’ (at 189). If the admission of the evidence would create a perceptible risk of a miscarriage of justice that cannot adequately be dealt with by appropriate directions to the jury, the proper exercise of the general unfairness discretion would require exclusion of the evidence. In those circumstances the admission of the evidence would result in an unfair trial. In determining whether such a perceptible risk cannot adequately be dealt with by appropriate directions, however, the capacity of juries to understand, appreciate and apply directions should not be underestimated. In circumstances where the admission of the evidence would cause unfairness, but not to the extent of creating a perceptible risk of miscarriage of justice or a perceptible risk that could not be adequately avoided by directions, the nature and extent of the unfairness will need to be assessed as will matters such as the probative and prejudicial value of the evidence and its importance to the prosecution case. The court may need to weigh factors such as those that are considered in the context of the public policy discretion. In this way, the type of circumstances that existed in French v Scarman are encompassed within the general unfairness discretion. The factors to be weighed may well include the conduct of the law enforcement authorities and whether that conduct has contributed to the unfairness. For example, if the conduct of the authorities occurred with a view to placing an accused at a forensic disadvantage, and a disadvantage ensued, such conduct and the existence of the disadvantage would be highly relevant in determining whether the evidence should be excluded. This approach is consistent with the view taken by the Court of Appeal in Callis v Gunn [1964] 1 QB 495. In a judgment with which the other members of the Court agreed, Lord Parker CJ said (at 501):
‘[A]s is well known, in every criminal case a judge has a discretion to disallow evidence, even if in law relevant and therefore admissible, if admissibility would operate unfairly against a defendant. I would add that in considering whether admissibility would operate unfairly against a defendant one would certainly consider whether it had been obtained in an oppressive manner by force or against the wishes of an accused person. That is the general principle.’”
[31] (2000) 77 SASR 44 at [82]
The general unfairness discretion is applicable to any evidence if the reception of the evidence would be unfair to the accused in the sense that the trial would be unfair. The purpose of the discretion is to ensure that an accused receives a fair trial and is not improperly convicted.
In applying the general unfairness discretion in this case I consider that public policy issues arise. I also consider that matters affecting the rights of Mr Robin arise. I do not see any need to separately consider a stand alone public policy discretion. It is appropriate to consider the general unfairness discretion, and, as is suggested in Lobban at the same time consider any relevant public policy considerations. The factors referred to in French whether truly matters of public policy or general unfairness must be weighed and considered in the exercise of that discretion.
The Exercise of the Discretion
After the oral argument on appeal, time was given for both counsel to advance an application to adduce further evidence. No further evidence was sought to be adduced and so the exact circumstances of the taking and delivery of the containers of blood remain unclear. This kind of information was important given Mr Robin’s allegations of failures on the part of the practitioner and the police and the fact that it was said that the process of collection formed part of the process of obtaining evidence against Mr Robin.
As earlier observed the practitioner appears to have made a decision not to provide Mr Robin with one of the containers of blood. This conclusion can be drawn because the practitioner crossed out the words “I personally gave one container to the patient”. Further he did not tick the box “Personally given to patient.” The practitioner also noted that Mr Robin’s container was placed in the blood box at the hospital with the container for State Forensic Science. Both containers bore the same identification number and had identical certificates attached.
The practitioner was not called to give evidence. No explanation was provided for his absence. No explanation was provided for his departure from the requirements of Regulation 6. The procedure was conducted in the early hours of the morning. There are a number of possible explanations for what occurred. It is possible that the practitioner confused the section 47I procedure and the section 47G procedure.
Section 47I addresses the taking of blood samples from a person admitted into hospital following a motor vehicle collision. Section 47I(7) places an obligation on a practitioner to take and divide the blood sample and provide both the containers of blood to a police officer. A specified notice must be left with the person or with their personal effects at the hospital. The notice must advise them where they can collect one of the containers. No such notice was provided to Mr Robin pursuant to this section. The notice that Mr Robin received did not advise of a specified place for the collection of one of the containers.
Section 47G is directed towards drivers who have been tested for drink driving and wish to have a blood test taken. Section 47G obliges a practitioner to provide one container of blood to the driver and one to a police officer. At the RAH the same blood box is apparently used for collection purposes whether the section 47I or the section 47G procedures are followed.
If the practitioner confused the two procedures, then the result has left Mr Robin at a material disadvantage. He did not receive one of the containers of his blood nor the written advice detailing the specified place at which he could collect one of the containers.
Defence counsel submitted that the police caused or contributed to these consequences as the police officer collected and conveyed both containers, including Mr Robin’s container, to State Forensic Science. Had the police officer examined the contents of the blood box, it should have been apparent that something was wrong. Once the two containers were observed to have the same identification number, the officer might presume the blood samples had been taken pursuant to section 47I of the Act. However a cursory review of the accompanying certificates would show that they were section 47G certificates. Alternatively if the officer read the certificates first and recognised that they were section 47G certificates, it should have been understood that only one container of blood would be in the blood box. The problem could then have been readily addressed. Either one container could have been delivered to Mr Robin or alternatively he could have been advised of where he could collect a container of his blood. The difficulty should have been obvious to the officer on an examination of the contents of the blood box before the officer left the hospital. The same matter would also have been evident at the Forensic Science Centre.
Section 47I, obliges a practitioner to deliver the containers of blood to a police officer. Regulation 6, to be read with section 47G, carries an obligation to provide one of the containers to a police officer. The purpose of placing important obligations on the police in regard to the collection and conveyance of the container or containers and of the accompanying certificates is to ensure that the safeguards provided by the legislative scheme are properly effected. It is also to be observed that a copy of the analysis certificate from State Forensic Science must be forwarded to the Commissioner of Police. The legislative scheme contemplates the Crown using the results of the analysis as evidence in the law enforcement process. In this way the police carrying out their duty under Regulation 6 act as part of the law enforcement process.
Mr Robin claimed that as his container of blood was not dealt with in the manner prescribed by Regulation 6, he was deprived of the opportunity to have his own analyst undertake an analysis of his blood, enabling him to compare the results of that analysis with the results from the State Forensic Science. Such an analysis would have provided him with the ability to check the analysis and the integrity of the earlier procedures. Mr Robin lost the possibility of adducing independent evidence from his analyst pursuant to section 47G(1)(1a) of the Act in rebuttal of the presumption created by section 47G(1).
In Singh, the defendant received the appropriate section 47I notice which specified the place where the container of blood could be collected but chose not to collect the container. The opportunity for independent analysis remained available and had not been lost. In a real sense, the defendant was not deprived of the opportunity to have a sample of his blood independently analysed. As Martin J said, a defendant who is deprived of such an opportunity would be in a very different position to Mr Singh. As earlier observed Mr Robin was deprived of this opportunity. The magistrate concluded that unfairness to him had resulted.
Conclusion Re Admissibility

Mr Robin was obliged to submit to an alcotest and breath analysis test. The legislation recognised that by requiring him to submit to those tests he was being placed in a position in which his fate would be determined by the accuracy of the instrument and the honesty and reliability of the police evidence as to its results. The legislation further recognised that Mr Robin had no control over either of those matters. This led to the enactment of section 47G and the making of Regulations to provide critical and necessary safeguards. An essential part of these safeguards takes the form of an obligation on the practitioner conducting the test to provide Mr Robin with a container of his blood.
Mr Robin did not receive a container of his blood or even notice of where he could collect such a container. He was deprived of the opportunity of having his own analyst analyse his blood sample so that he could compare the results with those from State Forensic Science. He was unable to test the integrity of the entire procedure.
In every sense Mr Robin was denied the opportunity of an independent analysis of his blood and hence any possibility of challenging the statutory presumptions. The critical safeguards were not provided. This was occasioned in part by the practitioner’s non-compliance with his obligations and in part by the police officer’s failure to check the contents of the hospital’s blood box at the time of collection or at the time of delivery to the State Forensic Science.
The admission of the evidence of the breath analysis creates the perceptible risk of a miscarriage of justice. In arriving at this conclusion I have weighed the factors that were identified in French and have treated those factors, as suggested in Lobban, as being within the general unfairness discretion. The significant departure from the Regulations has deprived Mr Robin of fundamental safeguards. No explanation has been offered for the departures. The safeguards are of fundamental importance and there must be strict compliance with the regulations. The results of the breath analysis should be excluded.
The Orders to be Made
On the hearing of the appeal it was accepted by both counsel that if the breath analysis evidence was properly admitted, the irrebuttable presumptions operated and the appeal must be dismissed. However if the evidence should have been excluded, then the Crown conceded that the appeal must be allowed. The Crown then contended that a stay rather than an acquittal was the appropriate order.
The procedure followed at trial was unsatisfactory. The magistrate’s ruling on the objection to the admissibility of the breath analysis evidence should have been made during the Crown case. It was preferable that this ruling was made at the time of the objection but in any event before the close of the Crown case. If necessary a voir dire hearing could have been conducted. Had a ruling that the evidence was inadmissible been made before the close of the Crown case then the Crown could have reconsidered its position. An amendment to the particulars of the complaint may have been sought. Evidence of the Forensic Science analysis may have been tendered and linked back to the time of Mr Robin’s driving. Given such a ruling, Mr Robin may not have given oral evidence and may not have tendered the Forensic Science Centre’s analyst’s report. Both parties would have been in a better position to conduct their cases had they been aware of the ruling.
In McCarron v Akpata[32] Mullighan J addressed a similar circumstance when dealing with an appeal against convictions under the Workers Rehabilitation and Compensation Act 1986 (SA). He said:
“During the course of the trial the appellant objected to this evidence and sought a hearing on the voir dire. The learned Magistrate heard the evidence of Dr May and declined to grant a hearing on the voir dire. At the end of the prosecution case she declined a request by the prosecutor for a ruling on the application that the evidence be excluded. She said that she wanted to hear the evidence of the appellant in support of his application before making a decision as to whether the evidence should be excluded. …
At the end of the case the learned Magistrate, in her reasons for judgment, announced that she had excluded the evidence of the conversation between the appellant and Dr May on that day. Consequently it is now submitted that there was no evidence of false and misleading statements on that occasion or dishonesty on the part of the appellant which could justify a finding of guilt on the obtaining by dishonest means charges which are based upon the medical certificate of that date. It was submitted that the appellant should not have been required to give evidence about that consultation.
I think the procedure adopted by the learned Magistrate was unsatisfactory even though the parties consented. The appellant was entitled to have this application for exclusion of the evidence decided at the earliest possible time. The learned Magistrate should have conducted a voir dire hearing and made her ruling during the prosecution case. If that had occurred the evidence given by Dr May and the appellant at such a hearing would not have been part of the evidence in the case. The parties would then have known where they stood in relation to the incident of 27 May 1999. If the evidence was to be admitted, the parties could then decide if the evidence given on the voir dire would be part of the evidence in the trial. Magistrates exercise jurisdiction in very serious criminal cases and this matter is no exception. The rules of criminal practice and procedure should be followed. In the present case the parties did not know if the evidence was to be excluded until after the conclusion of the trial. The prosecutor did not know if evidence in support of various charges was to be before the Court and the appellant did not know if he had to meet a case in relation to those charges.”
[32] Judgment No. [2001] SASC 365 at [45], [47-48]
Mullighan J’s observations are apposite. The well settled rules of criminal practice and procedure should be followed. This allows the court and the parties to proceed with an awareness of the state of the evidence. It allows them to make informed decisions about the conduct of the trial. If the established practice and procedures are not followed uncertainty may arise and there is a real risk that a miscarriage of justice may occur.
As earlier observed, the evidence of the breath analysis should have been excluded as a matter of discretion. Had the magistrate ruled on the issue of its admissibility during the course of the Crown case, the Crown would have had the opportunity to consider on what basis, if at all the matter should proceed. In the circumstances the Crown has been denied that opportunity.
This appeal must be allowed and the conviction set aside. I will hear counsel as to the further orders to be made.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1 Section 47B provides:
“(1) A person must not-
(a) drive a motor vehicle; or
(b) attempt to put a motor vehicle in motion,
while there is present in his or her blood the prescribed concentration of alcohol as defined in section 47A.
2 established pursuant to s. 47DA of the Road Traffic Act 1961 (SA)
3The alcostest was conducted using a Lion Alcolmeter SD-400.
4 The breath analysis was conducted using a Drager Alcotest 7110
5 Section 7(2) of the Acts Republication Act 1967 (SA) provides that the Attorney General may issue directions to the Commissioner of Statute Revision to:
“(a) achieve uniformity of style in respect of the numbering and designation of and the use of capital letters…
and
(b) generally improving and bringing into conformity with modern standards of draftsmanship the form or manner in which the law contained in Acts is expressed”.
This explains the use of 47(g) rather than 47G. Capital letters have now been introduced to bring South Australia into line with the Commonwealth and the other States. Such changes are made to style and are not of substance.
6 This was in the form specified in Schedule 3 of the Regulations.
7 There was no evidence about the ‘blood box’ or the nature of this receptacle.
8 It may have been held for 12 months by Forensic Science Centre and then destroyed.
9 No complaint was made of the procedures undertaken by the police at the time that both tests were conducted.
10 (1978-79) 141 CLR 54
11 (2000) 77 SASR 24
12 The magistrate considered that the appropriate penalty was the minimum prescribed by law. He convicted Mr Robin and disqualified him from holding or obtaining a driver’s licence for a period of six
months to commence from 12.01 am on 7 December 2000. He then suspended the operation of that disqualification pending the hearing and determination of any appeal.
13 This finding of unfairness was not challenged by the Crown.
14 (1998) 70 SASR 429
15 (2000) 77 SASR 24 at [2]
16 (2000) 77 SASR 24 at [74]:
17 In this judgment the legislative scheme incorporates both the Act and Regulations.
18 (1979) 20 SASR 333 at 337, 339, 340 and 341 see also Jacobs J at 342
19 (985-86) 39 SASR 418 at 420. See also Pacillo v Hentschter (1988) 47 SASR 261 at 255, Tann v Schild (1990) 54 SASR 523 at 529
20 Unreported S 6375 at 3 Nyland J
21 (1971-1972) 126 CLR 321
22 (1998) 200 LSJS 441 at 448-449
23 (2000) 77 SASR 24 at [37], [39] and [41]
24 [2000] SASC 114 at [21-24], [28]
25 (1978-79) 141 CLR 54 at 74, and 77
26 (1992-1993) 176 CLR 177 at 202-203
27 (1989-1990) 168 CLR 23 at 56
28 (1992-1993) 177 CLR 292 at 362-363
29 (1998) 62 ALJR 656 at 666
30 Duke v The Queen (1942-1991) 180 CLR 508 at 513
31 (2000) 77 SASR 24 at [82]
32 Judgment No. [2001] SASC 365 at [45], [47-48]

“(a) achieve uniformity of style in respect of the numbering and designation of and the use of capital letters…
and
(b) generally improving and bringing into conformity with modern standards of draftsmanship the form or manner in which the law contained in Acts is expressed”.

This explains the use of 47g rather than 47G. Capital letters have now been introduced to bring South Australia into line with the Commonwealth and the other States. Such changes are made to style and are not of substance.

[2002] SASC 33

5 February 2002