Wilkie v Barnaba

Case [2021] TASSC 21

[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

  1. 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.

  2. 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…

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Wilkie v Barnaba [2021] TASSC 21
Case
[2021] TASSC 21
Decision Date

CaseChat Overview and Summary

In Wilkie v Barnaba, the appellant, Mr Wilkie, appealed against a decision of the Magistrates Court of Tasmania, which had excluded a breath analysis result from evidence. The court was called upon to decide whether the Magistrates Court had erred in excluding the evidence under s 138 of the Evidence Act and whether the common law general fairness discretion should have been exercised to exclude the evidence.

The legal issues before the court were whether the Magistrates Court had erred in excluding the breath analysis result and if the evidence was obtained improperly or illegally under s 138 of the Evidence Act, and whether the common law general fairness discretion should have been exercised to exclude the evidence. The court needed to determine if the evidence was obtained improperly or illegally, and if not, whether the Magistrates Court should have exercised its discretion to exclude the evidence under the common law.

The court found that the Magistrates Court had erred in excluding the evidence of the breath analysis result. The court noted that the onus of proof in relation to s 138 rested on the accused to establish that the evidence was obtained improperly or illegally. In this case, the evidence was not improperly obtained because the police officer was unaware of Mr Wilkie's misapprehension. The court held that s 138 was not enlivened in this case as the evidence was not improperly obtained. The court also considered the general fairness discretion at common law to exclude evidence, but found that it was not necessary to exercise it in this case. The court concluded that the Magistrates Court had erred in excluding the evidence and that it should have been admitted.

The court ordered that the decision of the Magistrates Court be set aside and that the matter be remitted to the Magistrates Court for reconsideration in light of the court's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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