Wilkie v Barnaba
[2021] TASSC 21
•31 May 2021
[2021] TASSC 21
COURT: SUPREME COURT OF TASMANIA
CITATION: Wilkie v Barnaba [2021] TASSC 21
PARTIES: WILKIE, Senior Constable Scott
v
BARNABA, Taban Joseph John
FILE NO: 2127/2020
DELIVERED ON: 31 May 2021
DELIVERED AT: Hobart
HEARING DATE: 30 March 2021
JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Breath analysis result of .151 – Driver did not elect blood sample because he mistakenly thought he could be charged with a second offence – Police officer unaware of misapprehension – Magistrate excluded evidence of breath analysis pursuant to s 138 of the Evidence Act because of unfairness to respondent – Error shown as evidence was not improperly obtained and s 138 not enlivened – Consideration given to 'general fairness discretion' at common law to exclude evidence.
Evidence Act 2001 (Tas), s 138.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), ss 6(1) and 11.
Ridgeway v The Queen (1995) 184 CLR 19; Kadir v The Queen [2020] HCA 1, 267 CLR 109; Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90, applied.
Police v Dunstall [2015] HCA 26, 256 CLR 403; Haddara v The Queen [2014] VSCA 100, 43 VR 53, considered.
Aug Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Appellant: S Nicholson
Respondent: T Savu
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Queensland Indigenous Family Violence Legal Service
Judgment Number: [2021] TASSC 21
Number of paragraphs: 74
Serial No 21/2021
File No 2127/2020
SENIOR CONSTABLE SCOTT WILKIE v TABAN JOSEPH JOHN BARNABA
REASONS FOR JUDGMENT WOOD J
31 May 2021
The respondent, Taban Barnaba was charged with driving a motor vehicle on 9 September 2019 while alcohol was present in his breath in a concentration greater than the prescribed concentration contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970.He pleaded not guilty and after a hearing, Magistrate R Webster dismissed the complaint. The prosecution had relied on evidence of the concentration of alcohol in the respondent's breath as determined by a breath analysing instrument which returned a reading of 0.151 grams of alcohol in 210 litres of breath. The learned magistrate excluded the result of the breath analysis and the evidence pertaining to it pursuant to s 138 of the Evidence Act 2001. He concluded the evidence was 'improperly obtained' because the circumstances in which it was obtained were not fair to the respondent.
Section 138(1) relevantly provides that evidence that was obtained improperly, or in consequence of such an impropriety, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. Section 138(3) sets out eight factors which the court must take into account in determining whether it is established that the public interest in the admission of the evidence outweighs the public interest in not admitting the evidence. The prosecution now applies for a review of the learned magistrate's decision. The sole ground of review is:
"The learned Magistrate erred in law in excluding evidence of the results of breath analysis by exercising a discretion afforded by s 138 of the Evidence Act 2001."
The motion to review is upheld for the reasons that follow.
The respondent was intercepted by police officers driving a motor vehicle on Elizabeth Street, North Hobart during the evening of 9 September 2019. Following a random breath test the respondent became liable to submit to a breath analysis. At the Hobart Police Station he was introduced to an approved breath analysis operator and directed to submit to a breath analysis. The breath analysing instrument disclosed a concentration of 0.151 grams of alcohol in 210 litres of breath.
The respondent was offered the opportunity for a blood test as required by the Road Safety (Alcohol and Drugs) Act, s 11, and no request was made.
The statutory requirements under the Road Safety (Alcohol and Drugs) Act and the relevant regulations operated to enable the reading produced by the breath analysing instrument to be admitted in evidence. There was no contention that the evidence before the court established the necessary requirements, including that the instrument was in proper working order, that Constable Herbert was an approved operator, and that the instrument was operated in the prescribed manner. Indeed, there was no suggestion that the reading that was returned from the sample of breath was inaccurate. The finding of the learned magistrate was that Constable Herbert had read and handed over the statement to the respondent, as required by s 11 of the Act, informing the respondent that he may request a blood test. As a result of the statutory scheme, the result of the breath analysis was deemed accurate.
Road Safety (Alcohol and Drugs) Act
The provisions of the Road Safety (Alcohol and Drugs) Act that have particular relevance in this case are as follows.
Section 11(1) provides:
"(1) As soon as practicable after a person has submitted to a breath analysis the approved operator by whom the breath analysing instrument was operated shall read over to him and hand to him a written statement, in such prescribed form as is appropriate to the case, that indicates the concentration of alcohol in the breath of that person as determined by that analysis."
Subsection (3) casts a duty on the approved operator to arrange for a sample of blood to be taken for analysis if requested:
"(3) Where an approved operator hands a statement to a person in accordance with subsection (1) or (1A) , that person may immediately request the operator to make arrangements for a sample of that person's blood to be taken for analysis, and, on such a request being made, it is the duty of the operator to comply with the request by making arrangements for the taking of such a sample to be begun by a qualified person within 5 hours after the relevant time."
The prescribed form is Form 2 in Schedule 1 of the Road Safety (Alcohol and Drugs) Regulations 2018. The form prescribes the statement to be read and handed to the person who has submitted to a breath analysis. Having informed the person of the result and that it exceeds the limit permitted by law for drivers of motor vehicles, the person is then to be informed that:
"YOU MAY-
(1) Accept this reading;
OR
(2) Submit to a blood test.
If you do submit to a blood test, evidence of the result of that rest may be given for or against you in any legal proceedings that follow.
If you desire arrangements to be made for a blood test you should make your request now."
In this case the s 11 statement was read to the respondent and handed to him on the completion of the analysis and the respondent did not request a blood test. The requirements of s 24(1) were met and accordingly the result of the breath analysing instrument was not inadmissible under that provision.
There was nothing then that stood in the way of the operation of the deeming provision in s 23(2):
"(2) In any proceedings to which this Division applies, the concentration of alcohol in the breath of a person as determined by a breath analysis that was properly carried out shall be deemed to be the actual concentration of alcohol in the breath of that person at the time at which he submitted to the analysis, unless it is shown on the balance of probabilities that the concentration of alcohol in his breath at the time was not greater than the prescribed concentration."
It is worth noting that in the event of any conflict between the results of a blood test and breath analysis, taken in accordance with the Act, the result of the blood test would prevail: s 23(3).
The evidence and findings
Evidence concerning the interaction between the respondent and Constable Herbert relating to his election not to have a sample of blood taken was material to the magistrate's decision to exclude the breath analysis result. The evidence of Constable Herbert on this point appears in the reasons of the learned magistrate, and I quote from them at [11]:
"[Constable Herbert] says he read the s 11 statement to Mr Barnaba word for word as set out in Form 2. He provided Mr Barnaba with no other information. Before he handed the form to Mr Barnaba he needed to note down Mr Barnaba's decision about the blood test and he did that by circling option one set out in paragraph 10. Not surprisingly Constable Herbert cannot remember the specifics of his conversation with Mr Barnaba but he does recall Mr Barnaba was not sure about whether he should have a blood test. Constable Herbert says it took Mr Barnaba about 10 minutes before he came to the decision not to have a blood test. In his experience some people are not sure if they should have a blood test and sometimes they ask questions but he cannot recall Mr Barnaba asking any questions. He says he asked Mr Barnaba to make a decision perhaps two or three times but does not recall giving him any advice. He does not recall Mr Barnaba asking for advice. His practice is to provide advice but it is always factual and he always says it is the person's decision whether to have the blood test or not. He said Mr Barnaba appeared to be having some difficulties and it was clear English was not his first language and as a result Constable Herbert did not go into any great detail. He said the conversation between Mr Barnaba and himself was not a flowing conversation but despite these issues he did not think an interpreter was necessary because he formed the view Mr Barnaba understood what he was being told."
The cross-examination of Constable Herbert was also referred to. A summary of the evidence referred to include the following. Only 3-4 people out of about 1000 have taken about the same time as the respondent to make a decision as to whether or not to have a blood test. Constable Herbert left it up to the respondent to make that decision. He had originally lived in South Africa and had served on two tours of duty with the Army and had received cross-cultural training. In the past five years he had undergone cross-cultural training on an annual basis. He conceded that the respondent may have asked him "what can I do sir" on three occasions. He understood that such a question is a door or prompt to the other person to ask more questions. If such a question was asked by the respondent he would see his duties as a breath analysis operator were constrained. He said he understood the respondent was not sure about what he should do, but he did not realise that the respondent thought he might be subjecting himself to an additional charge if he submitted to a blood test. His evidence was if he had been aware that the respondent had that misguided view, he would have had no hesitation in advising him that submitting to a blood test would not result in an additional charge.
The respondent gave evidence. A summary of his evidence drawn from the learned magistrate's reasons is as follows:
"14 In his examination in chief Mr Barnaba said he was shown the reading and told by Constable Herbert he had two options to choose from. The first was to sign, which I interpret as meaning accept the reading, and the second option was to have a blood test. Mr Barnaba then asked Constable Herbert I don't know what I can do sir? By that question he says he was asking Constable Herbert to explain the situation because he thought if he had a blood test he could be charged with a second offence. He says Constable Herbert put the two options to him again and he responded by saying what can I do? Constable Herbert then told him he had to make a choice between accepting the test result or having a blood test and he had to make a decision. On the third occasion Mr Barnaba said he didn't know what he could do and he needed more advice. He said Constable Herbert became annoyed and raised his voice and he replied by saying okay I'll sign. He said if he was aware that by having a blood test he would not be liable for an additional offence he would have had a blood test."
The respondent's evidence concerning his belief was: "I wondered if he could explain to me, because in my mind, I thought if I go for a blood test and the result comes against the same, and then I will have two offences. So I feel like I wanted him to explain to me so that I can make the decision to sign which one." He was asked whether "if you had known then what you now know that that was your right to have a blood test, what would you have done?" He responded, "I would have gone for a blood test."
In cross-examination he said "I didn't actually think I needed an interpreter but just I was struggling like because I don't know what to do". The respondent wanted advice and asked what would you advise. He chose the breath analysis because he did not have any advice from the police officer. He gave some brief evidence during cross-examination regarding his cultural background. He came to Australia in February 2013. He had an African licence and sat a test in July 2013 and obtained a Tasmanian licence. He mentioned he works as a disability support worker.
The honesty of the witnesses was not in question, and they were regarded by the learned magistrate as having done their best to recount the events as accurately as possible. However, there remained some points of difference on peripheral issues. These issues were resolved by the magistrate, and his Honour's key findings regarding the interaction between Constable Herbert and the respondent, and the circumstances are set out at [18], [20], [21] and [28] of his Honour's reasons:
· The s 11 statement was read to the respondent.
· Constable Herbert and the other police officer, Constable Heald, present for some of the with the respondent, both believed that the respondent did not need an interpreter.
· the learned magistrate agreed with that assessment that the respondent did not need an interpreter having regard to his observations of the respondent's evidence during the hearing.
· The respondent was having difficulties in deciding whether he should undergo a blood test.
· There was a delay of some 10 minutes while he made that decision.
· Constable Herbert did not recall his conversation with the respondent but did recall he asked the respondent on two or three occasions to make a decision.
· Constable Herbert did not become annoyed.
· It was clear to Constable Herbert that the respondent was having some difficulties and that English was not his first language.
· The conversation between them "did not flow".
· The respondent asked Constable Herbert," what would you advise", three times.
· Constable Herbert was aware these questions were an invitation for him to ask further questions.
· Constable Herbert chose not to ask questions of the respondent because he believed his duties were constrained by the Act.
· The respondent understood he was entitled to have a blood test but he did not elect that course because he was under the misapprehension that if he did so he might be charged with a second offence.
· If Constable Herbert had discovered that the respondent had had this belief then he would have informed the respondent that it was not the case that he would be charged with a second offence.
The magistrate's reasoning
The learned magistrate provided written comprehensive reasons published to the parties. Having set out in detail the evidence and some of his findings, he highlighted various provisions of the Road Safety Alcohol and Drugs Act.
At [23], the learned, magistrate set out a passage from a magistrate's decision of Bonde v Daniels [2012] TASMC 21 at [16]–[17] in which Magistrate Pearce (as he then was) considered the policy behind protection of the right to taking and analysis of a blood sample and cases which considered whether a breath analysis ought be excluded. In particular, a case of Director of Public Prosecutions (Vic) v Moore [2003] VSCA 90 was considered.
In DPP v Moore, the Victorian Court of Appeal upheld a magistrate's discretion to exclude evidence of a breath analysis in circumstances where the analysis was obtained lawfully, but subsequent to the lawful obtaining of the analysis, a police officer had improperly advised the respondent not to pursue his statutory right to take a blood test on the basis that, in the police officer's experience, the blood result would likely be higher. The learned magistrate in the respondent's case noted that the discretion to exclude the breath analysis reading mentioned in DPP v Moore is provided for in s 138 of the Evidence Act.
The learned magistrate noted the arguments made on behalf of the respondent at [26]. In particular, he noted the argument that Constable Herbert should have been alerted to the fact that "something wasn't quite right" or, at the very least, this should have caused him to enquire further.
He noted there was no argument for the respondent that there was any impropriety on the part of Constable Herbert, and he did not suggest the breath analysis reading was obtained illegally. His Honour agreed that there was nothing illegal about the manner the breath analysis reading was obtained. However, he was satisfied that the reading was obtained improperly. His Honour's reasons are as follows:
"28 … However despite Constable Herbert's duty to read the s11 statement to Mr Barnaba and hand to him that statement (Form 2) as soon as practicable after Mr Barnaba had submitted to a breath analysis, society would quite rightly expect that when dealing with Mr Barnaba Constable Herbert would not prevent Mr Barnaba from exercising any statutory rights that he might have. While I am not suggesting Constable Herbert deliberately or intentionally sought to deny Mr Barnaba his statutory right to elect a blood test it seems clear from Constable Herbert's evidence he was aware Mr Barnaba's questions, which I have found he asked, were an invitation for Constable Herbert to ask further questions which he chose not to ask because he believed his duties were constrained by the Act. In dealing with Mr Barnaba in this manner which resulted in Constable Herbert not engaging with him further to determine what Mr Barnaba's understanding was Mr Barnaba did not exercise his statutory right. If Constable Herbert explored the issue further with Mr Barnaba and discovered that Mr Barnaba believed he would be subjected to a further charge if he submitted to a blood test then Constable Herbert would have given Mr Barnaba advice to the contrary. Although Constable Herbert's conduct was not deliberate or intentional it had the effect of preventing Mr Barnaba from exercising his right to submit to a blood test; a right he said in evidence he would have exercised. I therefore find in the circumstances of this case Constable Herbert's conduct was clearly inconsistent with the standard of conduct society would expect and therefore on balance I am satisfied the breath analysis reading was obtained improperly because the circumstances in which it was obtained were unfair to the defendant. Can the discretion in s138 to exclude the breath analysis reading still be exercised in those circumstances?"
His Honour noted that "s 138(1) does not refer to unfairness to the respondent as an aspect of the undesirability or otherwise of admitting improperly or illegally obtained evidence". Further, s 138(3) does not include it as one of the factors. His Honour contrasted s 138 with s 90 of the Evidence Act. His Honour went on to state as follows:
"29 … However it is clear from cases such as R v Helmhout [2001] NSWCCA 372 at [11] per Ipp AJA; R v Phung and Huynh [2001] NSWSC 115 and DPP v Farr (2001) 118 A Crim R 399 fairness to a defendant in proceedings such as these can be taken into account in the exercise of the s138 discretion. The Court in the case of R v Em [2003] NSWCCA 374 however took a different view. At [74] Howie J, with whom Ipp JA and Hulme J agreed, said:
"The discretion under s 138 is similar to that which was described in Swaffield as the public policy discretion at common law. Of course, there is a significant difference between the discretion under s 138 and that at common law: the section requires that the Crown persuade the court to admit evidence that was improperly or unlawfully obtained But just as at common law, the public policy discretion was distinct and separate from the unfairness discretion, so the discretion to admit evidence under s 138 is a distinct and separate discretion from that arising under s 90. The two discretions may overlap but they are not synonymous. Section 138 is not, in its terms at least, concerned with the court ensuring a fair trial for the accused. Certainly that is not a paramount consideration when exercising the discretion. The discretion exercised under s 138(1) seeks to balance two competing public interests, neither of which directly involves securing a/air trial/or the accused" (my emphasis)
While I agree fairness is not a paramount consideration it is in the public interest Mr Barnaba receives a fair trial. That a defendant receives a fair trial is a fundamental tenet or principle of our criminal justice system. In my view it would be undesirable to admit evidence if its admission results in an unfair trial. I also note while fairness to a defendant is not listed as one of the factors in s l38(3) to be taken into account that does not mean it should not be. The introductory words of that provision make it clear the list of factors is not exhaustive. Accordingly, in my view, fairness to a defendant in admitting evidence can be taken into account."
After referring to a number of Magistrates Court decisions, his Honour went on to apply the discretionary factors in s 138(2) to the facts of the case before him. His Honour then concluded:
"34 … Mr Barnaba had a statutory right to request a blood test and the result of the analysis of the blood sample prevails over the result of the breath analysis. Essentially this is the only opportunity for Mr Barnaba to challenge the result of the breath analysis. Once a person requests a blood test it is the statutory duty of the breath analysis operator to arrange for a blood sample to be taken. In this case because of what transpired between Mr Barnaba and Constable Herbert that statutory right was not protected and in those circumstances it would be unfair to admit the breath analysis reading into evidence. This is not an issue of a technical nature as in Buxton v Stafford (supra). In those circumstances the desirability of admitting the breath analysis reading is in my view outweighed by the undesirability of admitting that reading into evidence. I will therefore exercise the discretion I have in s 138 in Mr Barnaba's favour and exclude the breath analysis reading."
As there was no other admissible evidence of the breath alcohol concentration of the respondent at the time he drove a motor vehicle on 9 September 2019, the complaint was found not proved and accordingly, dismissed.
The arguments on appeal
The applicant contends the evidence was not obtained improperly or in contravention of an Australian law or obtained in consequence of an impropriety or contravention of an Australian law. Constable Herbert had not done anything that tainted the procedure such as, make a statement about what the respondent should or should not do.
The submissions addressed the factors in s 138(3) and argued that the magistrate erred in considering fairness as relevant to an exercise of the discretion. It was argued that s 138 is concerned with evidence that may have been tainted by illegality or impropriety on the part of the law enforcement authority. The question of unfairness to a particular defendant is ordinarily of peripheral importance in deciding whether the evidence should be excluded under s 138. It was argued that there was no need to resort to a consideration of a "general unfairness discretion" given the evidence was unaffected by impropriety by reason of unfairness: Police v Dunstall [2015] HCA 26, 256 CLR 403 at [47]. It is worth noting here that the learned magistrate did not resort to a "general unfairness discretion", but rather applied fairness as a factor pursuant to s 138 of the Evidence Act.
The respondent argued the learned magistrate properly exercised his discretion pursuant to s 138 when he excluded the evidence of the results of the breath analysis. Arguments for the respondent acknowledged that s 138 is not primarily concerned with the court ensuring a fair trial for a defendant, and fairness is not a paramount consideration when exercising the discretion: R v Em [2003] NSWCCA 374 per Howie J at [74]. However, fairness still can be considered by the court when exercising its discretion.
Police v Dunstall, was also referred to by the respondent, and it was noted that the High Court at least raised the existence of the "general unfairness discretion" although did not elaborate because neither party in that case had contested its existence.
It was contended that the respondent had a statutory right to request a sample of blood be taken, but did not because of a misunderstanding which Constable Herbert could easily have cleared up had he enquired further, given his training with the South African Army. Constable Herbert elected not to question the respondent, despite the respondent struggling with the issue of whether to elect a blood sample for some 10 minutes. He thereby inadvertently used his position to dissuade or discourage the respondent from exercising his statutory right.
At the hearing of the review, it was highlighted that Constable Herbert could see that the respondent was agonising over the decision and did not know what to do. In those circumstances, Constable Herbert should have asked questions to find out what the difficulty was. The request for advice by the respondent was consistent with a genuine concern about an additional charge. He highlighted the respondent was from a different cultural background. His misapprehension that he might be charged with a second offence is explicable in that context. Given Tasmania's increasing cultural diversity, it was necessary for police to be alert to and responsive to the risk of cultural misunderstanding.
The place to start is a consideration of s 138 as it is critical to the learned magistrate's decision.
The terms of section 138
The terms of s 138 are:
"138 Discretion to exclude evidence improperly or illegally obtained
(1) Evidence that was obtained –
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law –
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2) Without limiting subsection (1) , evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning –
(a) did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b) made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3) Without limiting the matters that the court may take into account under subsection (1) , it is to take into account –
(a) the probative value of the evidence; and
(b) the importance of the evidence in the proceeding; and
(c) the nature of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding; and
(d) the gravity of the impropriety or contravention; and
(e) whether the impropriety or contravention was deliberate or reckless; and
(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g) whether any other proceeding, whether or not in a court, has been or is likely to be taken in relation to the impropriety or contravention; and
(h) the difficulty, if any, of obtaining the evidence without impropriety or contravention of an Australian law.
It can be seen that a consideration of the factors in subs (3) and the question of whether fairness has a role is not reached until subs (1) has been satisfied. Section 138 is not engaged unless the threshold in subs (1) has been met, namely that there is evidence that has been improperly or illegally obtained or in consequence of an impropriety or illegality.
Legal principles governing s 138
The onus of proof in relation to s 138 rests on the accused to establish that the evidence was obtained improperly or illegally. Once that onus has been discharged, it is for the Crown to satisfy the court that the desirability of admitting the evidence outweighs the undesirability of admitting it: R v Salem (1997) 96 A Crim R 421. If the accused discharges his or her onus, the evidence cannot be admitted unless the Crown satisfies the court as mentioned.
While the section is often described as involving a discretion to exclude evidence, this is not strictly speaking correct. The section involves an evaluative exercise and a determination of whether the desirability outweighs the undesirability: Tasmania v Salter [2007] TASSC 33 at [15]; Sims v Thomas [2007] TASSC 106, 17 Tas R 114. The evidence is to be admitted or excluded by an application of factors that need to be balanced and weighed, calling for judicial judgment. If the factors weigh in favour of admitting the evidence, there is no overriding discretion to exclude the evidence. As mentioned, the factors are not engaged in this case unless the evidence was improperly obtained. If the evidence could not be regarded as improperly obtained, that is the end of the matter and s 138 has no application. The question arises, what does improperly obtained mean? The meaning of this phrase has been judicially determined.
Improperly
As correctly observed by the learned magistrate, the common law principles regarding the concept of impropriety set out in Ridgeway v The Queen (1995) 184 CLR 19 have been held to apply to a construction of s 138: Robinson v Woolworths Ltd [2005] NSWCCA 426, 158 A Crim R 546.
In a recent High Court decision of Kadir v The Queen [2020] HCA 1, 267 CLR 109 the application of the common law principles articulated in Ridgeway to a consideration of s 138 was endorsed . The judgment of the Court in Kadir stated, "Whether evidence has been obtained improperly in such a case is determined by reference to "minimum standards of acceptable police conduct", with a footnote to Ridgeway v The Queen at 37 per Mason CJ, Deane and Dawson JJ.
Improper conduct is "not criminal but which is quite inconsistent with the minimum standards which a society such as ours should expect and require of those entrusted with powers of law enforcement": Ridgeway per Mason CJ, Deane and Dawson JJ at 36; Robinson at [102]. The stage of impropriety will be reached in the case of conduct which is "clearly inconsistent" with minimum standards of acceptable police conduct in all the circumstances: Robinson at [23].
Under s 138, impropriety is not about identifying good policing, but identifying the minimum standards we should expect of police officers. Impropriety cannot be shown by demonstrating that the police search fell short of best practice.
The critical question that arises on this motion to review is whether, given the findings of the learned magistrate, it was open to the learned magistrate to find that the evidence was improperly obtained. This is decided with reference to minimum standards of acceptable police conduct.
Was the evidence improperly obtained?
The learned magistrate's findings are set out above at [17]. It can be seen that Mr Barnaba laboured under a misapprehension that if he elected a blood test he would be charged with a further offence. If this misunderstanding had been cleared up he would have exercised this right and elected a blood test. Constable Herbert could see that the respondent was struggling with his decision whether to elect a blood test or not. The respondent asked him three times, "What can I do sir". If Constable Herbert had engaged further with the respondent and asked him questions, and the respondent had revealed his misunderstanding, Constable Herbert would have dispelled it by explaining that he was not in jeopardy of being charged a second time.
Having made findings the learned magistrate concluded, "Although Constable Herbert's conduct was not deliberate or intentional it had the effect of preventing Mr Barnaba from exercising his right to submit to a blood test; a right he said in evidence he would have exercised. I therefore find in the circumstances of this case Constable Herbert's conduct was clearly inconsistent with the standard of conduct society would expect and therefore on balance I am satisfied the breath analysis reading was obtained improperly because the circumstances in which it was obtained were unfair to the defendant." It can be seen that the learned magistrate's conclusion turned on the consequences of Constable Herbert's conduct as preventing the respondent from exercising his right.
In the usual case, the officer's conduct was entirely appropriate. Many people would struggle with the decision whether to opt for a blood test. They do not know what is in their best interests and they may want assistance with that decision or to be told what would produce the most advantageous outcome for them. However, it is not appropriate that police officers assist with that decision. It is a decision that must be made by the individual. This point was made in the Victorian decision mentioned earlier of DPP v Moore. At [41] and following, Chernov J said:
"In the circumstances, the statutory option given to a driver in the position of the respondent is an important right and the police, who are charged with the administration of this important legislation, should not use their position to dissuade or discourage such a person from exercising it."
A further illustration of this point was Bonde v Daniels, referred to by the learned magistrate. In that case the police officer gave incorrect advice that electing a blood test would be an impediment to a restricted licence. In a passage quoted by the learned magistrate in his reasons under review, it was said at [20]"… police officers should be slow to give any advice or make any comment beyond their statutory obligation, correct or not, about the exercise of the right".
Constable Herbert was right to be reticent about engaging in a discussion about the decision to be made by the respondent whether or not to elect a blood test. Noting that generally the officer's conduct was appropriate, what was it about this case that warranted a different approach?
It can be seen that Constable Herbert was oblivious to the respondent's misunderstanding. The respondent did not say anything that ought to have alerted Constable Herbert to the nature of his erroneous belief. Rather, the respondent just asked for advice and did not say anything that revealed a misapprehension. The question asked, and repeated by the respondent, "what would you advise" indicates he wanted advice about what decision he should make. That is precisely what police officers cannot provide.
Constable Herbert had undergone cross-cultural training and had originally lived in South Africa. He had served on two tours of duty with the Army and in that capacity had received cultural training. He understood that the questions asked by the respondent as to "What can I do sir" on three occasions can be a prompt for questions to be asked. However, assuming this is so, the question did not suggest the respondent was labouring under a mistake. He could not be expected to know that with or without his cross-cultural training.
In these circumstances, Constable Herbert did not breach the minimal standards expected of police officers. He had no cause to engage with the respondent about a decision which only the respondent could make, and which he was obliged not to influence. While the respondent was plainly having difficulty with that decision and wanted Constable Herbert's advice, there was not enough reason to initiate an exchange with the respondent about the decision. Moreover, the officer was not required to explore the factors operating on the respondent's mind.
Other individuals in similar circumstances may labour under any number of mistakes of fact or law. They may believe that the taking of a blood sample will be painful or place them at risk of an infectious disease, or that they would have to bear the expense. They may erroneously believe that a result from a blood test is more serious in the eyes of the law than a result of a breath analysis. There may be any number of circumstances where, if police officers were to explore matters further, an erroneous belief may be discovered. While they should be alert, as Constable Herbert was, to the risk of mistake arising from cultural differences and prepared to correct any misapprehension, there is a limit to what can be expected of police officers in circumstances such as this. Ultimately, their informative role in response to misunderstanding, misapprehension and ignorance is limited to what is apparent and revealed to them. If it were otherwise, then officers would be obliged to interrogate people about their thinking if they were indecisive or hesitant in making their decision.
The police officer did not act improperly and the breath analysis was not improperly obtained. I reject the notion that the police officer acted improperly because of a consequence of not exploring the respondent's state of mind.
As noted the learned magistrate invoked a consideration of fairness in a number of respects. This can be seen at [28] and [30] of his Honour's reasons. At one point his Honour stated that "In my view it would be undesirable to admit evidence if its admission results in an unfair trial." It is also plain that this principle of fairness was tied to the operation of s 138. There is authority to support his Honour's approach that, notwithstanding that unfairness to the accused is not referred to specifically in s 138(3), it remains a factor which may be taken into account when deciding whether to admit evidence obtained improperly or in consequence of some impropriety. However the section is not engaged and the factors in subs (3) do not arise unless there is impropriety or the obtaining of evidence improperly. As observed, if there was no improper or illegal conduct, s 138 has no application.
The question arises whether there is any scope for the application of an exclusionary principle that the admission of evidence would result in an unfair trial. Could the learned magistrate have been correct to exclude the evidence because of unfairness, even though there was error in the application of s 138?
General unfairness discretion
A discretion to exclude evidence because of unfairness to an accused manifests in various forms in the Evidence Act. Section 90 enables the exclusion of a confession because of unfairness. At common law, this is known as the Lee discretion: R v Lee (1950) 82 CLR 133.
Section 137 provides for the exclusion of evidence where it would be unfair to an accused to admit evidence. The court must refuse to admit evidence adduced by the prosecution if its probative value is outweighed by the danger of unfair prejudice to the defendant. The corresponding common law discretion is known as the Christie discretion: R v Christie [1914] AC 545.
The exclusionary provision of s 138, the equivalent discretion at common law known as the Bunning v Cross discretion, has less to do with fairness. While equivalent, it may be noted that s 138 is wider than the common law discretion in various respects: Kadir at [12]. This provision is grounded in the public policy that it is better that a possibly guilty accused be allowed to go free than that society or the courts sanction serious illegality or other serious impropriety on the part of officials in gathering the evidence with which to convict the accused: Bunning v Cross (1978) 141 CLR 54 at 74-75; Ridgeway v The Queen (above) at 38 per Mason CJ, Deane and Dawson JJ at 38, per Brennan J at 49 and per McHugh J at 83; Police v Dunstall per French CJ, Kiefel, Bell, Gageler and Keane JJ at [26].
As stated above, s 138 is not engaged because there can be no proper suggestion that the police acted unlawfully or otherwise improperly.
Section 137 was not invoked, no doubt because of the high probative value attaching to the breath analysis certificate and its presumptive effect, and that there is no evidence suggesting that it was inaccurate.
The discretion in s 90 does not apply because there is nothing in the way of a confession or indeed, any unfair practice which caused the respondent to forego any right or privilege.
There is a question whether there is a residual discretion to permit the court to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the accused in the sense that it would make the trial of the accused an unfair trial. Intermediate appellate courts in Australian jurisdictions have identified a general common law discretion to exclude admissible evidence on the ground of unfairness: Haddara v The Queen [2014] VSCA 100, 43 VR 53 at [16]; see also: Rozenes v Beljajav [1995] 1 VR 533; R v Edelsten (1990) 21 NSWLR 542 at 554. Furthermore, that discretion has survived the introduction of uniform evidence legislation: Haddara per Redlich and Weinberg JJA at [70]-[72].
Such a discretion has been acknowledged and applied by the Full Court of South Australia: R v Lobban (2000) 77 SASR 24. It is noted that this is not a jurisdiction governed by uniform evidence legislation.
In Police v Dunstall, the High Court gave consideration to the common law general unfairness discretion in the South Australian context. The plurality at [34] questioned the application of such a general discretion to exclude prosecution evidence in a case where the Christie discretion was not engaged, nor the inherent power of the court to stay proceedings. The judgment highlighted that a topic not yet explored is the interaction of a residual exclusionary discretion with the inherent power of the court to relieve against unfairness, including a stay of proceedings: [23]. Their Honours considered the evidence, in that case involving a breath analysis reading where a doctor's error deprived the respondent of his ability to obtain admissible blood test evidence. It was concluded that the admission of the evidence did not make the trial unfair.
Their Honours noted that given that conclusion and the circumstance that neither party contested the existence of the "general unfairness discretion", it was inappropriate to determine the scope, if any, of a residual discretion to exclude lawfully obtained, probative, non-confessional evidence that is unaffected by impropriety or risk of prejudice on the ground that admission of the evidence would render the trial of the defendant an unfair trial: [47].
It is plain that their Honours regarded the existence of a "general unfairness discretion" at common law operating to exclude evidence as not free from controversy.
At [48], a final observation of relevance here was made:
"It remains to observe that the power of the court to prevent unfairness arising from the continuation of criminal proceedings that are oppressive or unjust involves a test of fairness that requires the court to balance the interests of the defendant and those of the community. Where the evidence that is sought to be excluded is critical to the prosecution case and the basis of exclusion is said to be that admission of the evidence would render the trial unfair, the remedy lies in determining whether the circumstances justify a permanent stay and not in circumventing that inquiry by the exclusion of the evidence in the exercise of a 'general unfairness discretion'. (Footnotes omitted)
Nettle J did not doubt that the general unfairness discretion existed, rather the difficulty was in the delimitation of its content. His Honour considered there was support for the notion that the fairness discretion is a residual discretion which applies where, although none of the recognised discretions is engaged, the receipt of otherwise admissible evidence would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice. His Honour considered that courts are bound to approach the task by a process of legal reasoning, by deduction, and ultimately by analogy with decided cases: [69].
Nettle J noted that the fairness discretion exists to ensure a fair trial according to law. "A fair trial according to law is a fair trial according to law as the law may be affected by statutory modification." The quote from the judgment of French CJ, Kiefel, Bell, Gageler, and Keane JJ at [48] highlights that the test of fairness requires the court to balance the interests of the defendant and those of the community. It is perhaps useful to highlight what the test does not involve. It does not "involve an open-textured approach to fairness more likely to invite application of idiosyncratic notions of what is just and fair", criticised as inimical to the rule of law: per Nettle J at [66] and also, [83].
Both judgments in Police v Dunstall are instructive about the approach to be taken in terms of analysis of whether there was unfairness to the accused in the forensic sense that we are concerned with. I turn to consider this question and whether it was open for the learned magistrate to exclude the evidence in the exercise of a general fairness discretion.
The Road Safety Alcohol and Drugs Act treats the breath analysis reading as reliable evidence. There is no challenge in this case to the accuracy of the reading. The scheme provides for a right to make a request for a sample of blood to be taken: Lane v Lovell [2012] TASSC 14 per Porter J at [31]. Section 11(3) was enacted for the benefit of the person tested, its inferred purpose being to give the person tested the opportunity to check the validity of the breath analysis by an analysis of blood: Wood v Finneran (1993) 2 Tas R 237 per Underwood J (as he then was) at 241. Plainly, this right to request a blood test is an important safeguard. Whether the right is exercised is a matter entirely for the person tested.
The respondent was informed about that safeguard but did not make that request. The reason for the respondent not requesting a blood test did not lie in any misconduct or impropriety on the part of the police. Whether analysis of the respondent's blood would have assisted his defence could not be known.
In the circumstances of this case, it could not be concluded that the admission of the evidence of the breath analysis reading would make the respondent's trial unfair. The view reached by the learned magistrate can only be regarded as a subjective view of fairness, and therefore exclusion of evidence on this basis is "inimical to the rule of law". I conclude that if the general discretion exists, it is not enlivened.
Having reached this conclusion, it is unnecessary to decide whether such a discretion exists and whether it is abrogated by the Evidence Act. These questions should be left for another day when it squarely arises and the court has the advantage of full argument.
Outcome
For the reasons I have given, there was error on the part of the learned magistrate in excluding the evidence of the result of the breath analysis. The motion to review is upheld. It is acknowledged by the respondent that if s 138 was not engaged and the evidence of the breath analysis was excluded in error, then a finding of guilt should be substituted. It would seem that the appropriate orders are to set aside the order dismissing the complaint and remit the matter to the learned magistrate to be dealt with according to law. However, before finalising the matter I shall hear from the parties as to the appropriate orders.
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