The Queen v Fenton

In the case of The Queen v Fenton, the appellant, Kenneth Fenton, was facing a charge of driving with excess breath alcohol under section 56(1) of the Land Transport Act 1998, with it being his third or subsequent offence. He had elected to be tried by jury and, prior to the trial, the Crown applied for a determination of the legality of the breath test administered under section 344A of the Crimes Act 1961. Judge J M Behrens QC made an order that the legality of the testing procedure be decided by a judge alone before the trial. Fenton sought leave to appeal against this decision. The Court of Appeal, however, found that it had no jurisdiction to hear the appeal.

The central legal issue before the Court was whether it had jurisdiction to entertain the appeal against Judge Behrens' direction for the pre-trial determination of the breath test's legality. The appellant's counsel argued that the court had jurisdiction under section 379A(1)(aa) of the Crimes Act, which allows for an appeal by leave of the Court against the making of an order under section 344A of the Act, or against the refusal of a judge to make such an order. The appellant contended that the judge's direction should be treated as a refusal to make an order under section 344A. However, the Court found this argument to be untenable, as the judge was not making or refusing to make an order regarding the admissibility of evidence, but rather giving directions for the purpose of a hearing to address the issue of admissibility. The Court cited the authority of R v Livingston and McGrath v R, which established that no question of admissibility arises in such circumstances and that the Court has no jurisdiction under section 379(1)(aa) to grant leave to appeal from such directions.

The Court of Appeal further declined to hear the application on the basis that it should nevertheless take the opportunity to offer guidance as to the respective roles of judges and juries in breath/blood alcohol cases, which the appellant's counsel had described as an inconsistency between Livingston and R v Allen. The Court observed that the respective roles of judge and jury in breath and blood alcohol cases had been materially changed by legislative amendments following the decision in Livingston. Leave to appeal was refused.