[2015] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
		Adelaide			No A19 of 2014

B e t w e e n -

POLICE

Applicant

and

JASON ANDREW DUNSTALL

Respondent

Application for special leave to appeal

BELL J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 13 MARCH 2015, AT 9.29 AM

Copyright in the High Court of Australia

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS A.C. MOFFA, for the applicant.  (instructed by Crown Solicitor (SA))

MS M.E. SHAW, QC:   If the Court pleases, I appear with my learned friend, MR B.J. DOYLE, for the respondent.  (instructed by Caldicott Lawyers)

BELL J:   Yes, Mr Solicitor.

MR HINTON:   Your Honours, special leave should be granted in this case so that this Court can settle what constitutes unfairness, enlivening the common law discretion known in South Australia as the “general unfairness” discretion.  In this State, in the context of drink‑driving cases, we have had over the last 15 and more years – going back to Chief Justice King’s time in French v Scarman – two competing theories as to what constitutes unfairness.

	On the one hand, the unfairness must arise from some action or conduct on the part of the authorities in that the evidence is illegally or improperly obtained – and your Honour Justice Bell will immediately recognise the overlap with the old Bunning v Cross discretion – or alternately, the evidence is obtained in circumstances where the accused could not protect himself or herself.

	It would be unfair, having regard to those circumstances, to allow the authorities to gain an advantage from that incapacity, and your Honour Justice Bell will straight away think of the confession cases where the accused is in a position where, despite their rights being read to them, they simply cannot exercise their rights to protect themselves.  Now, that is one theory, closely follows Swaffield and Pavic, a decision of this Court, but a decision of this Court limited to confessional evidence.  Of course, we are not concerned with confessional evidence here.

	Before I go to the second theory, most recently in this State, five judges sat to sort this issue in the case of Police v Hall in 2006.  The judgment in 2006 in Police v Hall is consistent with what I will call “theory 1”, and your Honours will see that in the application book, page 48, in the quotations from Police v Hall that feature in the Chief Justice’s judgment at paragraphs 27 and 31, a narrower conception of what enlivens the discretion.  It must be an unfair trial.  The Chief Justice in this case was in the minority; he embraced that.  Your Honours will find that at application book page 46, paragraph 20 ‑ ‑ ‑

KEANE J:   Unfairness in the sense in which you are using the term is connected with the prosecuting authority.  Is that right?

MR HINTON:   That does enliven it, yes, something moving from the prosecuting authority that ‑ ‑ ‑

KEANE J:   Your argument is that this case raises no question of unfairness on the part of the prosecuting authority?

MR HINTON:   Not at all, your Honour.

KEANE J:   It is simply a consequence of the failure of a mechanism that is provided by the Act to provide a check in a case where the relevant offence is having a level of alcohol in the blood; providing a check on proof of that offence by the use of breath analysis.

MR HINTON:   Yes, your Honour, yes.  The mechanism failed through no fault of the respondents, but through no fault of the appellants either.  The question then becomes ‑ ‑ ‑

BELL J:   What was the basis for excluding legally admissible relevant evidence where there was no colour of impropriety on the part of the prosecutor?

MR HINTON:   Precisely.  We can add one thing, “and no suggestion of unreliability”, just the possibility that you might have got something that might ‑ ‑ ‑

KEANE J:   Well, the absence of a check – the failure of a mechanism to provide a check on reliability.

MR HINTON:   Yes, your Honour, but that in itself does not mean under the Road Traffic Act that the evidence becomes unreliable and cannot be relied upon and that was Justice Sulan’s point.  This evidence is inherently – sorry, your Honour.

BELL J:   I think, Mr Solicitor, it might be more productive if we call on Ms Shaw at this point.

MR HINTON:   If the Court pleases.

MS SHAW:   If the Court pleases.  First of all, your Honours, we submit that this is not an appropriate vehicle for a consideration of this question in that below the applicant specifically did not seek to challenge the existence of the residual discretion and did not contend that the legislation had impliedly abrogated any residual discretion to exclude evidence.  In fact, the applicant embraced the test in Lobban that the admission of the evidence was dependent upon whether or not the failure to comply with the regulation – that is, a breach of regulation 11(c) by the medical practitioner, in effect – meant that the defendant could not achieve a fair trial.

	At three levels below this level, before the magistrate, before the Supreme Court and then before the Full Court, the applicant did not contend that there was no residual discretion, did not contend that a Full Court in Lobban or five judges in Hall that did not revisit Lobban, had wrongly identified a residual discretion available in cases such as this.  This position that the residual discretion does not exist is being presented for the first time in this jurisdiction.  The only question agitated below by the applicant was that the circumstances of this case did not fall within the residual discretion as outlined by Justice Martin ‑ ‑ ‑

BELL J:   Why was that?

MS SHAW:   In essence, the residual discretion as identified by the applicant was that the defendant cannot get a fair trial in that there is a perceptible risk of miscarriage of justice.  The way in which it arises, your Honours, in the context of road traffic legislation in particular, is that the prosecution to prove the Road Traffic Act offence are entitled to rely on presumptions.  It is not a question of the reliability of the evidence; it is a question of a recognition by the legislation that to rely on a presumption to prove guilt is inherently fallible.

	The presumptions that apply in this context – the statutory aids under 47K that apply – are firstly the presumption that, in effect, the breath analysis is indeed the blood alcohol level present, then there is a presumption that applies that enables that to attach to the time of driving, which can be two hours before.  The scheme, recognising that these are evidentiary aids and these are presumptions, put in place an antidote or a way in which those presumptions were available to be challenged.  What occurred here was that the scheme that the legislation embraced enabled a defendant to avail himself of a medical kit, to attend upon a medical practitioner, and in compliance with the legislation the medical practitioner provided two containers – one for the police and one for the defendant – and that would then be able to be adduced to rebut, if indeed it did, the presumption.  In essence ‑ ‑ ‑

KEANE J:   But this is a mechanism that the Act provides of which a person in your client’s position can avail himself.

MS SHAW:   Yes.

KEANE J:   If the mechanism fails, what is it about that that involves some unfairness on the part of the prosecution?

MS SHAW:   Your Honour, in our respectful submission, it is unfairness in the trial that the respondent in this case could have because, effectively, the result is that the presumption becomes conclusive of guilt.

KEANE J:   That is so because the mechanism for which the Act provides has failed.

MS SHAW:   Yes.  Your Honours, can we perhaps ‑ ‑ ‑

KEANE J:   Is there something in the Act which suggests that in some way the prosecution is somehow responsible for the efficacy of the check mechanism?

MS SHAW:   Your Honour, the prosecution can choose to prosecute by way of the statutory aids in a presumption, or it can choose to prosecute by way of adducing the evidence.  If the prosecution chooses to call in aid the statutory aid in a way that therefore is conclusive of guilt – if the mechanism is not able to be, in effect, invoked – then it, in my respectful submission ‑ ‑ ‑

KEANE J:   Well, it has been invoked.  It just did not work.

MS SHAW:   More than that.  It is not that it did not work, it is that there was a breach of the regulation by the medical practitioner.  In our respectful submission ‑ ‑ ‑

BELL J:   That is the issue, is it not?  To say a breach of the regulation by the medical practitioner is to accept that the medical practitioner was under a statutory duty to carry out the taking of the blood in accordance with the test kit.  Now, that is a proposition that was not accepted by Chief Justice Kourakis.

MS SHAW:   Your Honour, I accept that his Honour’s approach commenced from the point of rights and duties, and not from the point of “is there a perceptible risk of miscarriage of justice in the trial”.  The fact that under the legislation, or at the time the legislation was introduced – as we point out in our summary of argument – the Australian Medical Association were actually consulted in the drafting of the legislation, and the schedule to the legislation provides an immunity to medical practitioners in some respects and liability in other respects.  This legislation specifically contemplates, obviously because only doctors can take blood, that in order for there to be an ability of a driver or a defendant who is compulsorily effectively pulled over, not having committed any offence, compulsorily made to blow, to then be subject to conviction conclusively on a presumption, then that is the reason for providing that effectively the medical practitioners are indeed part of the scheme.

BELL J:   To the extent that a person who has been breath‑tested elects to take the test kit to a hospital or a doctor, if the results of the testing are to be admissible, it is necessary for the doctor to comply with the requirements of the regulations and the kit.  That is a very different proposition to imposing a statutory duty on the doctor with the consequence that where there is, as here, some failure in the taking of the blood sample or the preservation of it, that this gives rise to some relevant unfairness.

MS SHAW:   Could I ask your Honour, in response to that, to take up the book of legislation behind tab 3, and your Honour will see that the language of the legislation in relation to regulation 11, namely, the taking of the sample for the purposes of meeting a presumption, is in the terms of “must”.  If your Honours go to, for example, subsection (d) of regulation 11:

the medical practitioner must –

Subsection (e) –

it is the duty of the medical practitioner –

and so it goes on.  In other words, every single section speaks in terms of obligation and duty.  In our respectful submission, it is because in this case there was found to be a breach of the regulation, and because of that breach therefore there arose a question of whether or not the defendant could achieve a fair trial, in the context of the prosecution electing to rely on the statutory aid instead of adducing the evidence that it could otherwise have adduced.

	This is not a case where, for example, the evidence is lost or destroyed and the defendant or an accused is deprived of the ability to answer with the evidence that might otherwise have been available.  Where the court can address the probative value of the evidence in the light of the lost evidence, the effect of this presumption and this scheme is that if the defendant is denied through no fault of his own the ability to meet the presumption, then the presumption is conclusive and the court is not able, and is denied the ability by force of legislation, to evaluate the evidence in any way.

BELL J:   Just so I understand the statutory scheme, there is no capacity to displace the presumption, absent tendering evidence of the result of the blood test taken in accordance with the regulations, but it does remain, does it not, open to challenge the accuracy of the breath‑testing equipment, if that be the case?

MS SHAW:   In terms of the breath‑testing equipment, I am not sure whether a defendant has any ability to challenge it.  Obviously, there is a need to establish that the equipment is working, but then again there are presumptions and certificates that can be filed that it is, indeed, by proof of a certificate, a properly approved instrument, so again the route to proof is through certificates.  But the critical point is that where the breath‑test is clearly known by the legislature and given, that it is not the blood alcohol level of the driver at the time of driving by force of the time lags that are obviously involved and the various complications, then Parliament is recognising that this presumption is indeed, in fact, not a correct statement of what the breath analysis, in terms of the representation of the blood alcohol at the time of driving, is, and therefore that is why it provided this ability, in a sense, for the citizen to have this one way of meeting the presumption.

KEANE J:   Ms Shaw, what you are saying sounds not so much a defence of the exercise of the discretion in the case, but really an argument that the evidence of the breath analysis was not admissible because the statutory regime had not been complied with.

MS SHAW:   That is indeed the approach.  The learned magistrate excluded evidence of the breath analysis certificate result because that is the way the applicant endeavoured to lead the evidence.  The evidence was excluded.  Once the evidence was excluded, then the charge fell.  This was approached on the basis, is the breath analysis certificate, as to the result, admissible, and therefore the presumption applies, or is it not admissible bearing in mind the question “is there a perceptible risk of miscarriage of justice?” because the presumption is conditional upon ‑ ‑ ‑

KEANE J:   Why is one talking about perceptible risks of miscarriage of justice if the case is simply one of failure to comply with the requirements of the regime?

MS SHAW:   Because the method of proof adopted by the Crown to prove the case is an evidentiary aid, it is a presumption.  Clearly, in terms of its probative value, the court cannot weigh it up against any prejudicial value because, implicitly, it is a presumption.

KEANE J:   Now you are using the language of fairness rather than the approach that I thought you were putting to us earlier, which was that there was simply a failure to comply with conditions of admissibility.

MS SHAW:   The failure to comply with the conditions leads to the discretionary consideration, bearing in mind there is a non‑compliance – is there a perceptible risk of miscarriage?  That then weighs up questions such as one which was what was weighed up both below and at each of the levels above; was there another way open to the Crown to prove this case?  Yes.  Was there a breach of the regulation in terms of a mandatory part of the regulation?  Yes.  Was there anything else the defendant could have done to achieve a check on this particular presumption?  No.  Bearing in mind all of those factors and bearing in mind that the Crown had another way of proving the case, should the discretion be exercised, in effect, to exclude this certificate and therefore the ability to rely on the presumption.

BELL J:   Just to be clear, Ms Shaw, it does appear, if one goes to application book 5, paragraph 16 of the magistrate’s reasons, that the magistrate very clearly was exercising a discretion.  The magistrate noted that the respondent had:

done all he could do to comply with the requirements necessary to challenge the prosecution evidence –

He had been denied that opportunity not through any failing on his own part –

but by the apparent failure of the medical practitioner to comply with the regulations –

and that that resulted in an unfairness which the magistrate characterised as going to the ability to give a fair trial.

MS SHAW:   Yes.

BELL J:   Am I right in understanding that the applicant before the Full Court embraced the reasoning in Hall, or relied on it?

MS SHAW:   Yes, and Lobban.

BELL J:   Yes, and in Hall, I think it was pointed out that the statutory scheme leaves it to the driver to get a sample of blood.  It permits that to be done; it does not create a right to have that done.

MS SHAW:   That is right.

BELL J:   Yes.  The issue does turn, does it not, on the question of the existence and scope of a discretion to exclude evidence because the admission of the evidence would result in an unfair trial, notwithstanding that the evidence is relevant, and that there has been no misconduct on the part of the law enforcement authorities or those responsible for the conduct of the prosecution?

MS SHAW:   Yes, except that below, the applicant did not contend that the discretion did not arise in this case; that is, there was no suggestion by the applicant that the judge below or the magistrate had erred in considering whether the discretion arose.  The applicant contended that on the facts of this case, the discretion had been incorrectly exercised, and it was indistinguishable on the facts from Hall ‑ ‑ ‑

KEANE J:   Well, that there was no basis in the facts of this case for exercising a discretion concerned with unfairness.

MS SHAW:   In our respectful submission, there was.  That was not really contested below because in Hall, the difference was there had been no breach of regulation.  Mr Hall had presented at a public hospital, but had waited for such a long time that by the time he was to be tested, there was no alcohol left in his blood, so there was no ability to identify from that result what his reading may have been at the time of driving.  But in this case, there was a breach of the regulation by the medical practitioner and it was a finding of fact that the defendant had done everything he could.  In Hall, the finding was he could have gone to a different hospital; he could have gone to a medical practitioner.  In terms of the way in which the applicant has approached this matter, it has been on the basis that yes, there is a residual discretion, yes, it can arise, but it does not fall within Hall.

BELL J:   Yes, thank you, Ms Shaw.  Mr Solicitor, can you assist us with the way the matter was conducted before the Court of Appeal?

MR HINTON:   I can, indeed.  As we make plain in our written submissions, before the Full Court we did not challenge – our written submissions, if the Court pleases, at tab 13, paragraph 1, page 102 ‑ before the Full Court we did not challenge the existence of the discretion.  What we did challenge was that it was not enlivened on the facts of this case.  My opening submission to your Honours was not to say you should decide whether or not it exists.  We put that there because you have never had the opportunity to, so it would be odd to handcuff your Honours if you were to grant special leave; that is the only reason it is there.  Our primary submission is the discretion, depending upon, as your Honour Justice Bell said, its scope, was not enlivened.  That was the basis for the argument.

	When my learned friend says we use the language of “a perceptible risk of miscarriage of justice”, it is not my words, with the greatest respect, it is the language of Justice Martin taken from Lobban, and embraced by the majority in Hall as an expression of the narrow conception of unfairness.  Our case was if Hall was not unfair – and in Hall the discretion was not enlivened – then it was not enlivened in this case either.  That meant the magistrate erred, the judge at first instance erred, and the appeal should have been allowed.  Does that assist your Honour?

BELL J:   Yes, thank you, Mr Solicitor.  There will be a grant of special leave in this matter.  What is the estimated time?

MS SHAW:   Your Honours, can I just raise one matter?  In terms of the issue of the special order for costs – it is referred to at paragraph 40 at 121 of the application book.

BELL J:   Page 121, did you say?

MS SHAW:   Yes.  We point out that the respondent has succeeded at three levels ‑ ‑ ‑

MR HINTON:   I could cut the matter short – I have instructions.  We have already agreed an amount; we will pay the costs in any event.

BELL J:   Yes.

MR HINTON:   If the Court pleases.

BELL J:   Yes, very well.  Noting the applicant’s position with respect to costs, there will be a grant of special leave in the matter.  The likely estimate?

MR HINTON:   I would have thought half a day, your Honour.

BELL J:   Yes.  Ms Shaw?

MS SHAW:   Possibly a bit longer, your Honour.

BELL J:   Yes, very well.  It is likely that this matter could be listed for hearing before the Full Court in the May sittings.  For that reason, the directions for the filing of submissions involve a slightly compressed series of limits.  Those can be obtained from the Registrar, and I remind the parties of the need for strict compliance.

AT 9.57 AM THE MATTER WAS CONCLUDED