Wilkie v Barnaba

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.