The Magistrate erroneously held she was unable to take into account, in coming to her determination, the very high blood/alcohol reading indicated by the analyst certificate
27The Director submitted that in order to undertake the enquiry posed by s 138, and to exercise her discretion in accordance with the law, it was essential that her Honour take into account the certified blood alcohol reading, and that her efforts to isolate the reading for the purpose of disregarding it rendered the exercise of discretion nugatory.
28In DPP v CAD [2003] NSWSC 196 at [42] - [43] Barr J made the following observations as to the process that is engaged when a judicial officer is called upon to decide whether evidence should be admitted in the exercise of the discretion in s 138:
[42]...When a court is required to decide on an objection to the admissibility of evidence it is necessary for the court to inform itself what the evidence is. The magistrate was bound to acquaint himself with the substance of the evidence before he could decide whether or not to admit it. In fact he initially told Mr Franklin that that was what he would do, but later changed his mind.
[43] It is often convenient for a court to acquaint itself in an informal way, as by the tender of a statement, with the nature of evidence objected to. That is what should have happened in the present case, but by eschewing any reference to the complainant's account of the assaults the magistrate put it out of his power to know things he had to know in order to perform his proper function.
29In CAD, the Magistrate did not receive the accounts given by the victims of the assaults that the defendants were alleged to have committed apparently because they were not tendered by the prosecution. Barr J observed that the difficulty with that approach was that the Magistrate could not assess the seriousness of the offences charged, the nature of the relevant offence or the nature of the subject matter of the proceedings. In those circumstances, his Honour held at [40] that it was "impossible" for the Magistrate to exercise the discretion embodied in s 138 of the Evidence Act.
30The Director submitted that in the present case, although the Magistrate was obviously aware of the nature of the offence and its relative seriousness as a breach of s 9(4) of the Road Transport (Safety and Traffic Management) Act, given the high range reading and the surrounding circumstances, her stated efforts to "isolate" her knowledge of the reading in conducting the balancing exercise was an approach so fundamentally flawed that she was unable to undertake the balancing exercise the section requires.
31I am not persuaded that on a fair reading of her Honour's remarks (which I have emphasised at [26] above and which her Honour delivered ex tempore), she was doing more than emphasising the need to ensure that her discretion was not overwhelmed by the very considerable weight of the evidence under challenge. I am also not persuaded that when her reasons are considered as a whole, she in fact disregarded the unassailable probative value of the certificate of analysis (s 38(3)(a)) or ignored that it was essential to proof of the prosecution case (s138(3)(b)).
32Where I am persuaded that error is made out is her Honour's undue focus on what the Director described as "broad matters of policy" at the expense of factors which s 138(3) requires be taken into account as part of the balancing of the competing features of the public interest (see R v Em [2003] NSWCCA 374 at [74]). By that I do not mean to suggest that her Honour was not entitled to emphasise the need to ensure that the police adhere strictly to the rules governing the exercise of their statutory powers. I accept (as did her Honour) that the power of arrest, even in its most basic expression is a coercive power exercised over the liberty of the subject, and where it is exercised to compel a person to submit to the sampling of blood or other body fluids for forensic purposes it involves a gross invasion of privacy.
33However the assessment of gravity of the contravention of the Road Transport (Safety and Traffic Management) Act in this case, as required by s 138(3)(d), necessitated that her Honour evaluate the seriousness of the breach in the given circumstances, albeit in the context of her legitimate expectation that a police officer's judgment in deciding whether to arrest should be by reference to an unwavering standard. Her conclusion that she would not sanction an outcome (in this case the admission of the evidence) by allowing "the ends to justify the means" was not supported by any assessment of the gravity of the breach. Even after due allowance for her Honour's ex tempore decision, it falls short of the articulated reasoning process that is a necessary incident of judicial decision making (see DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402).
34In addition, and despite her Honour's criticism of the failure of the police officers to ensure they understood, with precision, the limits on their statutory powers to detain a person and take blood and urine samples under compulsion, she made no finding that they acted in knowing breach of the law, or that they were reckless as to whether or not the blood sample was lawfully obtained, or that they did not genuinely believe that she needed to be taken to the hospital for treatment after veering off the road, much less that they used these circumstances opportunistically to ground the power to detain her for the sampling to be undertaken.
35In R v Camilleri [2007] NSWCCA 36; 169 A Crim R 197 at [28], McClellan CJ at CL (with whom Bell J (at [38]) and Howie J (at [39]) agreed) described s 138 of the Evidence Act as requiring consideration "not only of the effect of the action but also the motivation of the person who carries out the action".
36In that case, which also involved the taking of a blood sample (albeit by a nurse pursuant to an erroneous belief that she was obliged to do so, in circumstances where the defendant had attended the hospital but not for the purpose of treatment after an accident) the trial judge had described the impropriety as "very grave". By comparison, McClellan CJ at CL did not consider that description was open (at [29]):
[29] The respondent was present in the Emergency Department of the hospital following a motor vehicle accident with obvious signs of head injury. The sister acted in the belief that he was a patient and that she was obliged to take the blood sample. Her actions would have been lawful if, as she believed, he had attended at the hospital for treatment or examination. Notwithstanding that the taking of blood is a significant invasion of a person's privacy, the legislature has provided that an individual's right to privacy cannot prevail over the taking of a blood samples from accident patients. The public interest in ensuring that persons do not drive when affected by alcohol has been judged by the legislature to be greater than an individual's right to privacy. Where, as in this case the blood sample was obtained by the sister, in the innocent, but mistaken belief, that she was obliged to obtain it, only a minimal level of impropriety was involved.
37His Honour went onto say at [31]:
...However, the fundamental concern of the section is to ensure that, if the law has been breached, or some other impropriety has been involved in obtaining the evidence, this is balanced against the public interest in successfully prosecuting alleged offenders. The competing interests are obedience to the law in the gathering of evidence and enforcement of the law in respect of offenders...
38In my view that same analysis obtains in this case to the question whether the evidence obtained in contravention of the law was grave. The junior officer who directed the triage nurse to take the samples was acting under the direction of a senior officer who had formed the genuine but mistaken belief that the circumstances he was confronted with when he attended the scene of the accident, and the assessment he made at that time of her sobriety, authorised the actions he took to detain the defendant and have her taken to the hospital and there for the sampling to be undertaken. The outcome of the appeal might have been different were her Honour to have formed the view that the senior police officer was motivated solely by a desire to ensure that his well founded suspicions that the defendant was heavily intoxicated were confirmed, and that she should be charged with driving under the influence of alcohol and evidence obtained to support that charge, and that he later sought to justify those actions by reference to express powers he did not actually avert to on the day. Again, as the Court observed in Camilleri, where the breach of the law is innocent and the alleged offence serious, there must be powerful countervailing considerations before the evidence is rejected.