Director of Public Prosecutions (on behalf of Hansen) v Moore [2003] VSCA 90

Director of Public Prosecutions (on behalf of Hansen) v Moore [2003] VSCA 90 - VSCA 2003 case summary — Zoe

[42]

"(2) A document purporting to be a certificate in the prescribed form produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the blood of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in sub-section (1) and, subject to sub-section (2E), is conclusive proof of - (a) the facts and matters contained in it; and (b) the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and (c) the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 55; and (d) the fact that all relevant regulations relating to the operation of the instrument were complied with; and (e) the fact that the instrument was in proper working order and properly operated; and (f) the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practicable after the sample of breath was analysed- unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter. (2A) A notice under sub-section (2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused person intends to have adduced at the hearing. ... (2D) A certificate referred to in sub-section (2) remains admissible in evidence even if the accused person gives a notice under that sub-section but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that sub-section. (2E) Nothing in sub-section (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in sub-section (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only. ..."

[47]

The evolution of that view can be seen in a series of decisions of the South Australian Full Court and Court of Criminal Appeal on similar, but by no means identical, legislation.[25] In French v. Scarman[26], where the member of the police force took no action to facilitate the taking of a sample of the driver's blood, King, C.J. (with whom the other members of the Full Court agreed) stated[27] that the provision requiring the police to facilitate the taking of the blood sample was an express legislative safeguard for the citizen and was so closely[28] connected with the obligation to submit to the breath test that non-observance by the police of the safeguard was a sufficient foundation for the Bunning v. Cross discretion. The driver had been deprived of the opportunity of checking the accuracy of the breathalyser by means of a blood test and, notwithstanding the cogency of the breath test evidence, the magistrate had been correct in exercising his discretion to exclude it. The Bunning v. Cross discretion was likewise applied by Bollen, J. in Nolan v. Rhodes[29], a case much relied on before us by the respondent, where the facts were closer to those here. The driver there, who had been given a breath analysis test, was informed by the police officer of his right to have a blood test and was asked whether he wished to have a sample of his blood taken for that purpose. The police officer was found to have added that it was his advice that the driver not have it because in his experience it was always higher, to which the driver had replied, "If that's advice, I'll accept it". Bollen, J. held that by the additional statement the officer overbore the driver's will and that the magistrate should have rejected the evidence of the breath analysis in the exercise of his discretion. In my view, it is clear from his Honour's discussion of The Queen v. Ireland[30] and Bunning v. Cross that it was the public policy discretion that his Honour held should have been exercised. (This is the view of the case that has been taken by the South Australian Full Court.[31]) His Honour's reference to unfairness[32] does not mean otherwise. Unfairness was after all referred to in the leading early case on this discretion, Ireland[33]. (In Payne v. Crawford[34], which, so far as I am aware, is the only other reported case concerning the effect of oral "advice" offered by a police officer about blood tests, Zeeman, J. held that the magistrate had not erred when he declined in the exercise of the Bunning v. Cross discretion to exclude the breath analysis certificate. His Honour distinguished Nolan v. Rhodes on the basis that the Tasmanian Act did not contain a conclusive presumption and also on the basis that the advice given by the police officer in Nolan v. Rhodes was offered by him gratuitously in the course of asking a question which the statute required him to ask and derogated from that question.) In Ujvary v. Medwell[35] the South Australian Full Court declined to interfere with the exercise of the Bunning v. Cross discretion by a single judge against rejection of evidence of the breath test result where the police were found to have failed to facilitate the taking of a blood sample. But the Bunning v. Cross discretion was taken to exist.

[48]

Then a change occurred, as Mr. Reynolds very properly drew to our attention. In Question of Law Reserved (No. 1 of 1998)[36] Doyle, C.J., with whom the other members of the Court of Criminal Appeal agreed, speaking of the public policy discretion, stated[37] that, if the evidence in question was not obtained by unlawful or improper means, the discretion did not arise. It did not arise simply because the discretion was directed to preventing the curial advantage that would be gained from the use of the evidence, and avoiding the appearance of approval by allowing use of the evidence. The discretion arose when the improper or illegal conduct had procured the commission of an offence or had enabled the prosecution to obtain the relevant evidence. Then, in R. v. Lobban[38], where after material which had been seized was analysed and identified as cannabis the material was unlawfully destroyed by the police, Martin, J. (with whom Doyle, C.J. and Bleby, J. agreed), being called upon to resolve the apparent inconsistency as regards the availability of the public policy discretion between French v. Scarman and Question of Law Reserved, approved, in a judgment described by this Court in R. v. Juric[39] as very helpful, the statement by Doyle C.J. in Question of Law Reserved which has been summarised earlier and held that the conduct considered in French v. Scarman did not come within the scope of the Bunning v. Cross discretion because of the absence of the critical element of an attempt by the prosecution to advance its case by using evidence obtained by or involving unlawful or improper conduct by a law enforcement authority. Martin, J. was well aware[40] the conduct in French v. Scarman occurred immediately after the evidence was obtained and was committed in connection with a safeguard directed to the reliability of the evidence. His Honour pointed out that the interests of the accused were nevertheless protected because circumstances such as existed in French v. Scarman could fairly be encompassed within the ambit of a general unfairness discretion which had as its primary focus considerations of unfairness to the accused. [41] In other words, as Mr. Reynolds accepted, the South Australian Full Court through Martin, J. effectively overruled its earlier decision so far as that decision held that it was the public policy discretion which authorised the exclusion of evidence of breath analysis where conduct of the police after the results of the analysis were obtained was illegal, improper, or unfair.[42] I agree respectfully with the views of Martin, J. on this question. I need not consider whether this Court should in any case follow R. v. Lobban: compare _Question of Law Reserve_d[43].

[51]

But that is not the end of the matter, for the notice of contention seeks to rely in another way on the discretion to exclude admissible evidence on the general ground of unfairness. In the somewhat unusual circumstances of this case, I think it desirable to consider whether, on the evidence, that discretion was open to be exercised. It is impliedly assumed in paragraph [32] above that the general unfairness discretion was available, and, despite the appellant's initial submissions to the contrary, I think that that is correct: compare R. v. Lobban[47]; Rozenes v. Beljajev[48]; and R. v. Juric.[49] Although the proceeding from which this appeal is brought was an appeal on a question of law, the orders which may be made on such an appeal are not narrow: s.92(7) of the Magistrates' Court Act authorises "such order as [the Supreme Court] thinks appropriate, including an order remitting the case." In Bunning v. Cross a majority of the High Court justices (Barwick, C.J. and Stephen and Aickin, JJ.) exercised the discretion there in question themselves rather than remitting the case to the magistrate for him to do so anew. Whilst the relevant facts of the two cases are not the same, several of the reasons given[50] by Stephen and Aickin, JJ for the taking the course are applicable here. The procedure in the Supreme Court of Western Australia in that case was an order to review, which, though the Act spoke of "error or mistake in law or fact," is not significantly different, for present purposes, from that adopted here. In this case, too, it is desirable, if possible, that the matter of the charge be resolved now, which is already nearly five years after the events giving rise to it, than allowed to drag on further. All the evidence was in.[51] I therefore consider that the discretion, which for my part I consider to be the general unfairness discretion, should be exercised by this Court and, in light of that exercise, the appeal either be dismissed, with the dismissal of the charge standing, or allowed and the dismissal of the charge set aside and the case remitted to the Magistrates' Court with a direction to convict and consider the question of penalty and costs.

[59]

I now turn to consider whether this conduct by the police officer was improper conduct for the purposes of the discretion that the court has to exclude otherwise admissible evidence. That requires a brief analysis of the legislative scheme and the rights and obligations that were given and imposed by it to the law enforcement authorities and persons in the position of the respondent. There is no doubt that the legislation in question is of utmost importance and that it is in the public interest that its dictates be strenuously enforced. So far as is relevant, it is directed to those who drive motor vehicles with a blood alcohol content that is considered by Parliament as likely to impair their ability properly to control the vehicles and thus increase the chance of causing property damage, injury and even death, thereby bringing about consequential problems in the community, sometimes of great magnitude. It is important, therefore, that those who drive with a blood alcohol content above the statutory limit are apprehended and appropriately dealt with in accordance with the dictates of Parliament. In order to facilitate the proof of the blood alcohol content of drivers, the legislation has given considerable powers to the police to compel drivers, in certain circumstances, to submit to breath and other tests which are aimed at establishing, to the satisfaction of the courts, their blood alcohol content at the time of driving. Furthermore, the legislation has facilitated proof of this matter by the prosecution. In many respects the powers given to the police in this regard have correspondingly diminished the accepted rights of individuals, particularly those which ordinarily entitle them to refuse to participate in any procedure that might incriminate them. The legislation, however, compels drivers, in certain circumstances, to undergo a preliminary breath test[57] and to furnish a sample of breath for analysis by a breath analysing instrument and, for that purpose, remain at the place where the breath test is to be taken for up to three hours[58]. The police may also require a driver, in certain circumstances, to allow a sample of his or her blood to be taken for analysis[59]. But the terms of the legislative provisions in question make it apparent that, in imposing these and other restrictions, Parliament has been careful to circumscribe the authority or power of the police to compel drivers to undertake these compulsory procedures. In addition, as I have said, Parliament has given the driver who is subjected to breath analysing procedures, the right, in certain circumstances, to request that a sample of his or her blood be taken for analysis[60] (and has, by s.55(13) of the Act, required the police to make reasonable efforts to implement that request[61]). The importance that Parliament has attached to this statutory right is made apparent by the fact that s.55(13) renders the evidence derived from the breath analysis inadmissible if the police do not make a reasonable effort to comply with the driver's request for a blood test. For completeness, I mention that s.57(2)(c) of the Act makes provision for the admission into evidence the results of the blood test at a hearing for an offence such as that with which the respondent has been charged. Section 57(3) provides the mechanism for such proof by way of a certificate described in the sub-section. It provides that, in the absence of evidence to the contrary, such a certificate is proof of the facts and matters contained in it.

[70]

There is, of course, also the general "unfairness" discretion which the court may exercise to exclude evidence where it considers that it would be unfair to the accused if it were admitted in the sense that this would or might render his or her trial unfair[73]. Although ordinarily there is a significant overlap in the underlying bases for the exercise of one or other of the categories of discretion to exclude evidence, considerations that may move the court to exercise the public policy discretion may not be identical to those which result in the exercise of the general unfairness discretion and vice versa. Nevertheless, it seems that, for certain purposes at least, the distinction between the two categories of discretion becomes merged into an "overall discretion" as has been recognised in the joint judgment of Toohey, Gaudron and Gummow, JJ. in Swaffield[74], although it should be said that there are passages in their Honours' joint judgment where they distinguish between the two categories of discretion[75]. Brennan, C.J. in that case distinguished between the two categories of discretion. His Honour said, for example,[76] that the conduct of law enforcement officers (in relation to the obtaining of confessional material) should be considered under the public policy discretion except where that conduct makes the reliability of a confession dubious, in which case the unfairness discretion can be invoked. In Swaffield the court was concerned with the question whether there should be excluded from evidence confessional statements of the accused where, in each case, he had effectively maintained his right to silence, but later made such statements to an undercover policeman in the first case and to a friend in the second. Whether such "blurring" of the distinction between the two categories of discretion is appropriate in relation to non-confessional evidence in a case such as the present, is yet to be authoritatively determined, although logically, it may be difficult to see why there should be two different approaches to the matter, depending on whether the evidence sought to be excluded is confessional or non-confessional. Be that as it may, it is convenient for the purpose of analysing the issues in this case to keep the distinction between the two aspects of the court's discretion to exclude what might otherwise be admissible evidence.

[79]

The principal question in R. v. Lobban was whether the public policy discretion arose for consideration in respect of the evidence which the prosecution sought to adduce essentially by way of a certificate of analysis of material that was seized from the defendant. Some three weeks after the material was seized and after it was analysed as cannabis, the police unlawfully, albeit unintentionally, destroyed the material. It was common ground in that case that the seizure was lawful and, as I have said, the destruction of it was unlawful. In considering the ambit of the circumstances in which the public policy discretion is enlivened, Martin, J.[84] comprehensively analysed the relevant authorities dealing with the operation of the public policy discretion, including those to which I have referred. His Honour noted that the Solicitor General had accepted in argument that French v. Scarman was inconsistent with the approach taken in Question of Law Reserved as to when the public policy discretion is enlivened and had submitted that it was appropriate to revisit the reasoning in that case. Martin, J. concluded that, as in Question of Law Reserved, the public policy discretion was not enlivened in the case before him because there was no relevant connection between the certificate of analysis of the seized cannabis and the subsequent unlawful destruction of it. More specifically, his Honour considered that the unlawful conduct in question did not constitute circumstances that were identified by Doyle, C.J. in Question of Law Reserved as giving rise to the public policy discretion, namely, that the discretion was enlivened only when the evidence in question was obtained as a result of the relevantly impugned conduct. His Honour also considered[85] that the same consideration operated in respect of French v. Scarman. In neither case, said the learned judge, was there an attempt by the prosecution to advance its case by using evidence "obtained by or involving" unlawful or improper conduct by the police. His Honour recognised that in French v. Scarman the impugned conduct occurred "immediately" after the breathalyser reading had been obtained and that the impropriety was constituted by the police officers' disregard of the statutory safeguard provided by Parliament which was directed to the accuracy of the breathalyser reading and he accepted that there was force in the argument that, in those circumstances, the public policy discretion would arise for consideration otherwise the court could be perceived as condoning the improper conduct of the law enforcement authorities. Nevertheless, his Honour concluded that, since "the history of the public policy discretion has been centred upon the discretion being enlivened only when the evidence is obtained by unlawful, improper or unfair conduct on the part of the law enforcement authorities", the improper conduct by the authorities in the case before him and in French v. Scarman did not enliven the public policy discretion given that in both cases the "critical element [that was] missing was an attempt by the prosecution to advance its case by or involving unlawful or improper conduct by a law enforcement authority". His Honour went on to say that, nevertheless, the interests of the accused remained protected by the general fairness discretion.

[116]

The general unfairness discretion, therefore, is primarily concerned with circumstances which might produce an unfair trial, carrying the potential for a miscarriage of justice[123]. The considerations which underpin the Bunning v. Cross discretion may not be accorded the same weight, and indeed might not be deemed relevant at all, when considering the general unfairness discretion. As Martin, J. noted, a court when considering whether to exclude evidence under the general unfairness discretion, and therefore assessing the risk of the trial being unfair, must not usurp the role of the jury as finder of fact. Thus, even if some unfairness arose the risk of a miscarriage of justice might be removed by proper directions. Martin, J. held that in determining the nature and extent of any unfairness the court must also have regard to the probative and prejudicial value of the evidence and its importance to the prosecution case[124], and such factors might not always inure to the advantage of the accused in seeking to have evidence excluded. Likewise, the range of factors which might be considered under the public policy discretion is broad. Factors such as the seriousness of the offence[125], the flagrancy of the conduct and the motives of the law enforcement authorities[126], and the importance of the evidence to the Crown case[127] might all inure to the disadvantage of the accused when the public policy discretion was being considered. Despite the overlapping considerations which might be addressed under either discretion it is clear that the weight and significance attached to them might vary according to the category under discussion and might lead to different outcomes. In other words, although appropriate directions to a jury might be thought capable of preventing an unfair trial, thereby avoiding the exclusion of evidence by reference to the general unfairness discretion, a different outcome might result when applying the Bunning v. Cross discretion. Where the trier of fact is not a jury, but a judge or magistrate, it may be no less possible that different outcomes would result depending on which discretion was applied.

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