NETTLE J. This is an appeal from a judgment of the Full Court of the Supreme Court of South Australia (Kourakis CJ, Gray and Sulan JJ). By majority (Gray and Sulan JJ), the Court upheld the affirmation by Kelly J of a magistrate's dismissal of a charge that, in contravention of s 47B(1)(a) of the Road Traffic Act 1961 (SA) ("the RTA"), the respondent drove a motor vehicle while there was present in his blood a concentration of alcohol of 0.155 grams in 100 millilitres of blood.
The facts and judgments below
The facts and relevant legislative provisions are set out in the joint judgment and it is unnecessary to repeat them. Suffice to say that, before the magistrate, the police sought to tender a certificate issued under s 47K(5) of the RTA ("the breath analysis test certificate"). It recorded, as was the fact, that shortly after the alleged commission of the offence the respondent submitted to a breath analysis test which showed that, at that time, he had in his breath a concentration of alcohol equivalent to 0.155 grams in 100 millilitres of blood. The magistrate excluded the certificate because blood samples taken shortly after the breath analysis had denatured due to the inadequacy of their size and so could not be tested. He ruled that, because the respondent was in those circumstances unable to contest the accuracy of the breath analysis test certificate, its receipt would be productive of such unfairness as to warrant its exclusion.
On appeal to the Supreme Court, Kelly J upheld the magistrate's ruling. Her Honour concluded that the medical practitioner who took the blood samples failed to comply with reg 11(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (which specified the size of samples to be taken) and thereby "placed the respondent in the same position as if no blood sample had ever been taken". Based upon what her Honour considered to be the effect of Police v Jervis and R v Lobban, she held that there was "scope for the exercise of the [fairness] discretion in favour of the respondent".
On appeal to the Full Court, Gray J adopted an essentially similar approach, although he ultimately based his decision on observations of King CJ in French v Scarman as to the unfairness of admitting a breath analysis test certificate in circumstances where the failure of police to comply with a statutory obligation to assist the accused in obtaining a blood test had deprived the accused of means of contradicting the presumed effect of the certificate:
"The failure to take an adequate amount of blood was in direct non-compliance with the regulatory scheme. As a consequence, both samples were denatured and the defendant lost the only basis of contesting the breath analysis reading. This arose in circumstances where the defendant had taken every available step, but non-compliance with the regulations had rendered his right to the obtaining of a blood sample nugatory. I would respectfully adopt the earlier extracted observations of King CJ in French v Scarman:
'… Factors against excluding the evidence are slight. The offence charged, although of course serious in its way, is not a grave crime. The cogency of the evidence can be of little significance in the circumstances, especially as the non-observed safeguard was directed precisely towards enabling the respondent to check the cogency of the evidence.'"
Gray J, however, did not refer to the later decision of a five-member Full Court in Police v Hall in which it was held that the fact that a blood sample is not taken through no fault of the driver does not make police reliance on a breath analysis test certificate unfair.
Sulan J quoted with apparent approval the dissenting reasons of Gray J in Police v Hall and concluded, as Gray J did in the present case, that the legislation laid down a procedure for enabling the respondent to obtain a blood test against which to check the accuracy of the breath analysis test certificate. His Honour held that, because the procedure had not been complied with, there had been a failure to avail the respondent of the safeguards recognised by the legislature and that it justified exclusion of the certificate.
In contrast, Kourakis CJ undertook an extensive review of previous decisions of the Full Court, including Police v Hall, and concluded, consistently with that decision, that the prosecution's reliance on the breath analysis test certificate was not unfair and therefore the certificate should not have been excluded. In brief substance, his Honour reasoned as follows:
(1) A trial judge has a discretion to exclude admissible evidence if its admission would operate unfairly against the accused (in the sense of "forensic unfairness").
(2) Forensic unfairness does not extend to some broad notion of fair play irrespective of the method of proof prescribed by Parliament, and it would be inimical to the rule of law for a judge to approach it as such.
(3) Where, therefore, a judge is asked to exclude admissible evidence on the ground of forensic unfairness, it is incumbent on the judge clearly to identify the unfairness by reference to the substantive and evidential matters in issue.
(4) Section 47K(1a) of the RTA does not confer any procedural or substantive right on an accused. On the contrary, the provision restricts the evidence which an accused may adduce in rebuttal of a breath analysis test certificate.
(5) As was decided in Police v Hall, there is no forensic unfairness in mere inability to collect or adduce evidence which it might be supposed could assist an accused if it were available, and that is so whether or not the accused has taken all reasonable steps to procure the evidence but has failed through no fault of his or her own to procure it.
(6) Regulation 11(c) does not cast a duty on medical practitioners with respect to taking a blood sample. The purpose of the regulation is to prescribe the conditions precedent to the admissibility of evidence adduced pursuant to s 47K(1a). The word "must" in the regulation mandates the procedures which must be followed to render evidence of the blood test admissible. It does not impose an obligation on a medical practitioner to carry them out.
(7) French v Scarman, on which the majority relied, is distinguishable. It was decided before amendments were made to the RTA which abrogated the statutory obligation previously imposed on police officers to "do all things necessary to facilitate the taking of the sample". Properly understood, French v Scarman was an application of the public policy discretion to exclude improperly obtained evidence. That discretion has no application on the facts of this case.
(8) Police (SA) v Erwin, on which the majority also relied, was wrongly decided and should not be followed.
(9) There may be some very limited circumstances which would render the prosecution of an accused who is unable to obtain evidence of a blood analysis an abuse of process: for example, if it were shown that the prosecution had strong reason to doubt the accuracy of the breath analysis test certificate but persisted with reliance on the statutory presumption. If so, however, any stay of prosecution in such a case would be grounded in the prosecution's bad faith and consequent abuse of process as opposed to some broader notion of fairness.
(10) In this case, the police carried no responsibility for the respondent's choice of medical practitioner or the medical practitioner's failure to take the sample in accordance with the regulations. There is no evidence which casts any doubt on the accuracy of the breath analysis test certificate. The respondent's failure to obtain a blood sample which could be admitted in evidence was not caused by any police misconduct. Consequently, there is no forensic unfairness of a kind which would engage the fairness discretion.
For the reasons which Kourakis CJ gave, and those which follow, the appeal should be allowed.
The fairness discretion
In this case, special leave to appeal was granted because the matter was said to raise a question of general importance of whether there is discretion to exclude evidence on the ground that its reception would be unfair. There should be no doubt that there is such discretion. It is the necessary concomitant of the obligation of a trial judge to ensure that an accused receives a fair trial according to law. The real question is as to its nature and extent and, in particular, what counts as unfair in the relevant sense.
In R v Swaffield, Brennan CJ spoke of the fairness discretion as the discretion recognised in R v Lee to exclude a voluntary statement when its reliability is put in doubt by reason of the conduct of a preceding police investigation or where, but for a trick or other unfair conduct on the part of the police, the statement would not have been made or made in the form it was. In future, it would be preferable to refer to that discretion as "the Lee discretion" and to regard the fairness discretion as it has come to be conceived of in Australia over the last quarter century as a residual discretion to exclude evidence which, although not attracting the operation of the Christie, Bunning v Cross or Lee discretions ("the recognised discretions"), would be productive of an unacceptable risk of miscarriage of justice.
In R v Sang, Lord Scarman proposed an alternative view that the recognised discretions are in effect merely instances of a more general or overarching fairness discretion to be exercised wherever a judge considers it is necessary to exclude evidence in order to ensure a fair trial. More recently, a majority of the Victorian Court of Appeal similarly referred to the fairness discretion as encompassing the Christie and Lee discretions. In some respects, that is an attractive idea. But it also faces conceptual and systemic difficulties.
Conceptually, the difficulty is the essentially different exclusionary bases of each of the recognised discretions and the consequent intractability of deducing an overarching principle which is capable of explaining them all. In the case of the Christie discretion, evidence is excluded where and because it would be unfair to an accused to admit evidence of which the capacity to lead a jury to reason correctly to a conclusion of guilt is outweighed by its capacity to lead the jury to reason incorrectly to a conclusion of guilt, and consequently would expose the accused to an unacceptable risk of being wrongly convicted of a crime of which he or she is presumed to be innocent.
In contrast, the exclusionary basis of the Bunning v Cross discretion is grounded in the public policy that it is better that a possibly guilty accused be allowed to go free than that society or the courts sanction serious illegality or other serious impropriety on the part of officials in gathering the evidence with which to convict the accused. It has less if anything to do with fairness to the accused than with protecting societal norms.
The exclusionary basis of the Lee discretion is different again in that it rests in part on concerns regarding reliability, and to that extent is in one sense coordinate with the Christie discretion, but increasingly and rightly it is regarded as grounded in the fundamental nature of the accusatorial process of the criminal law and hence concern that an accused should not be caused to forgo his or her right to silence by a trick or other unfair means. In effect, Lee combines notions of fairness to the accused with preservation of broader societal norms.
In the result, recognition of a general fairness discretion embracing all three of the recognised discretions would necessitate a conception of fairness that includes considerations that have little if anything to do with what is fair. Rather than assisting in the clarification of principle, that would tend to complicate and so make less comprehensible important aspects of the law of evidence which are now relatively well established.
Systemically, the difficulty with the idea of a general fairness discretion is in the delimitation of its content. The conventional view of a residual fairness discretion is of it being directed to ensuring that the accused receives a fair trial according to law - what Kourakis CJ aptly termed "forensic" fairness - and thus the criteria of its exercise are relatively clearly delineated. In contrast, a general fairness discretion would involve an open-textured approach to fairness more likely to invite application of idiosyncratic notions of what is just and fair and, for that reason, has been criticised as inimical to the rule of law.
There are, therefore, clear advantages to adhering to the notion that the fairness discretion is a residual discretion which applies where, although none of the recognised discretions is engaged, the receipt of otherwise admissible evidence would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice.
The criteria of the fairness discretion
The question remains, however, what are the circumstances in which, although none of the recognised discretions is engaged, the admission of otherwise admissible evidence would be productive of such unfairness as to result in an unacceptable risk of miscarriage of justice.
As Gaudron J observed in another context, "what is fair very often depends on the circumstances of the particular case" and "notions of fairness are inevitably bound up with prevailing social values". Hence, "the inherent powers of a court to prevent injustice are not confined within closed categories". But in this as in other areas of the law involving the recognition of new applications of established principle, courts are bound to approach the task by a process of legal reasoning, by deduction and therefore ultimately by analogy with decided cases, recognising that the exercise may ultimately involve a value judgment involving matters of policy and degree in a context of changing societal values or "prevailing community standards".
The application of the fairness discretion
That leads to the question of what there is about this case which might be thought to attract the operation of the discretion. Given the residual nature of the discretion and the desirability of proceeding by deduction from decided cases, it assists to begin with why the recognised discretions are not engaged.
The Christie discretion is not engaged because, quite apart from the presumptive effect of the breath analysis test certificate and the consequent high probative value which Parliament decreed it be given, there is nothing which suggests that it was inaccurate. On the contrary, the undisputed evidence was that the breath analysis test equipment was working correctly.
The Bunning v Cross discretion is not engaged because there is no suggestion that the police or any other authority acted unlawfully or otherwise improperly. As the magistrate found, the most likely cause of the denatured sample was that the doctor failed to take a sample of adequate volume. But it was not the responsibility of the police to take the blood sample or to ensure that an adequate sample was taken. The police had nothing to do with choosing the doctor and the doctor had nothing to do with the police. The RTA required the respondent to make his own arrangements for a blood sample to be taken and it was he who chose the doctor. It may not matter in the circumstances of this case but, for completeness, it should also be noted that there was no evidence or even suggestion that the doctor's error was deliberate.
The Lee discretion does not apply because there was nothing here in the way of a confession or anything in the nature of a trick or other unfair practice causing the respondent to forgo his right to silence or other right or privilege.
In those circumstances, why should the admission of the breath analysis test certificate be productive of an unacceptable risk of miscarriage of justice?
As was earlier noticed, Gray J and Sulan J approached the problem by analogy with French v Scarman on the basis that, because the legislation laid down a procedure for enabling the respondent to obtain a blood sample against which to check the accuracy of the breath analysis test and the procedure had not been complied with, there had been a failure to avail the respondent of the safeguards recognised by the legislature to ensure that his trial was not unfair. As Kourakis CJ concluded, however, French v Scarman was distinguishable as having been decided on the basis of the public policy discretion to exclude evidence which had been improperly obtained due to the failure of police to comply with a statutory obligation, to which they were then subject, to "do all things necessary to facilitate the taking of the sample". By the time of the events in issue in this case, that obligation had been repealed. There was nothing improper about the way in which the evidence was obtained and it could no longer be said that Parliament regarded the availability of blood test evidence as essential to ensure that the trial was not unfair.
Counsel for the respondent resisted the notion that the change in legislation had made any relevant difference to the exercise of the discretion. She contended that it was apparent from the extrinsic materials that the abrogation of the requirement that police assist in procuring blood test evidence was motivated by cost-cutting concerns rather than any thought of exposing an accused to the predicament of an irrebuttable breath analysis test certificate. But counsel did not seek to uphold the Full Court's judgment on the basis of the majority's reasoning. Rather, she contended that an unacceptable risk of unfairness inhered in the breath analysis test certificate being given a weight exceeding what it would naturally bear: because, through no fault of the respondent, but instead because of the doctor's breach of statutory obligation under reg 11(c), the respondent was deprived of his statutory right or entitlement to adduce blood test evidence with which to contradict the breath analysis test certificate.
That contention faces difficulties at several levels. To begin with, as Kourakis CJ said, s 47K(1a) did not confer any procedural or substantive right on the respondent but, to the contrary, had the effect of restricting the evidence which the respondent was permitted to adduce in rebuttal of the breath analysis test certificate. It was, however, still open to the respondent to adduce evidence that the breath analysis equipment had not been functioning correctly and it is notable that no attempt was made to do so.
Secondly, reg 11(c) did not impose a statutory duty on the doctor. Such duty as the doctor owed the respondent, if any, would be a common law duty to take care or possibly a contractual duty and, therefore, something only as between the doctor and the respondent.
Thirdly, despite what occurred, the respondent was given all the opportunity which the legislation afforded him to collect and adduce evidence with which to contradict the breath analysis test certificate albeit that, in the events which occurred, he was unable to collect and adduce that evidence.
Fourthly, although it is conceivable that the respondent's inability to collect and adduce evidence of the blood test could have been productive of an injustice, it is impossible to say that it would have done so. For all that appears, the blood test evidence may have served to corroborate the accuracy of the breath analysis test certificate.
Fifthly, although a loss of evidence may provide grounds for a stay of criminal proceedings where it is established that the absence of the evidence would constitute an unacceptable risk of injustice or unfairness, it is insufficient for that purpose to show only that absence of the evidence could have that effect. Parity of reasoning implies that it ought not to be a sufficient basis for excluding a breath analysis test certificate on the ground of unfairness that the absence of the blood test evidence conceivably could have, but it is not demonstrated that it would have, resulted in injustice. That does not mean that a stay of proceedings should be conceived of as the only means of dealing with the risk of an unfair trial resulting from the loss or unavailability of evidence. A stay is the ultimate and last resort because it runs counter to the societal imperative that a suspected offender be brought to trial. Where a fair trial can be achieved by moulding or minimising prejudice in the way suggested by Brennan J in Jago v District Court (NSW), it should be done; and thus, where the choice comes down to one between a stay and the exclusion of evidence in exercise of the fairness discretion, the latter is likely to prevail. Even so, unless the loss or unavailability of evidence constitutes a sufficient risk of injustice to warrant a stay of proceedings, it is unlikely to, and in this case it did not, warrant exclusion of otherwise admissible evidence in the exercise of the fairness discretion.
Sixthly, the notion that the breath analysis test certificate was given a weight exceeding what it would naturally bear is misplaced. As Kourakis CJ said, rightly, the presumptive effect of the breath analysis test certificate is "Parliament's response to the notorious difficulties which beset the common law means of proof". For that reason, it is not to be excluded merely "because the court holds the view that the method of proof prescribed by the Parliament is inferior to common law proofs". If, as here, Parliament decrees that a particular means of proof be given a specified evidential effect then, subject to very limited exceptions which are not here engaged, it must be given that effect. Of course, it does not necessarily follow from the fact that the Christie discretion is not engaged that the fairness discretion cannot apply. The fairness discretion is a residual discretion which exists to ensure a fair trial by means of the exclusion of otherwise admissible evidence in circumstances where none of the recognised discretions responds. But, in a case like this, the fact that the probative value of the evidence is not exceeded by such prejudicial effect as it might have is a significant indicator that the receipt of the evidence is unlikely to be unfair.
Finally, and most importantly, the suggestion that there would be unfairness in the prosecution's reliance on the breath analysis test certificate in circumstances where the doctor's error deprived the respondent of the ability to obtain admissible blood test evidence misconceives the relevant conception of fairness. As was earlier identified, the fairness discretion exists to ensure a fair trial according to law. A fair trial according to law is a fair trial according to law as the law may be affected by statutory modification, and in particular as it may be affected by statutory modification of common law means of proof. The discretion facilitates a fair trial according to law in that sense by enabling the exclusion of otherwise admissible evidence which would be productive of an unacceptable risk of miscarriage of justice. It does not exist to give effect to idiosyncratic notions of "fair play" or of "whether the forensic contest is an even one", still less to deny effect to statutory modifications of common law means of proof of which, because of idiosyncratic notions of what is fair, a judge may disapprove.
Conclusion
It was not open to conclude that admission of the breath analysis test certificate would be productive of an unacceptable risk of miscarriage of justice and therefore it was not open to exclude the breath analysis test certificate in the exercise of the fairness discretion.
For these reasons, the appeal should be allowed and orders should be made in the terms proposed in the joint judgment.