R v Riley, Christopher

Background

1. Mr Christopher Riley (the respondent) was charged on indictment with the following offences: "1 on the 27th day of December 2016, near Gilgandra in the State of New South Wales, did drive a vehicle, namely a Toyota Hilux utility, when it was involved in an impact occasioning the death of [JB], and at the time of impact the said Christopher Riley was driving the vehicle under the influence of a drug, namely tetrahydrocannabinol. S 52A(1)(a) Crimes Act 1900" "2 on the 27th day of December 2016, near Gilgandra in the State of New South Wales, did drive a vehicle, namely a Toyota Hilux utility, when it was involved in an impact occasioning grievous bodily harm to [NB], and at the time of impact the said Christopher Riley was driving the vehicle under the influence of a drug, namely tetrahydrocannabinol. S 52A(3)(a) Crimes Act 1900"
2. Tetrahydrocannabinol is the main active drug in cannabis.
3. The facts giving rise to the charges may be summarised as follows. On 27 December 2016 the respondent, the deceased JB, with whom the respondent was in a relationship, and JB's three year old daughter were travelling in a Toyota Hilux utility along East Coonamble Road near Gilgandra when the vehicle left the road and rolled. The three occupants were thrown from the car. JB died as a result of her injuries whilst her daughter sustained serious injuries. The respondent was taken to Gilgandra Hospital where a sample of his blood was taken. The sample was taken to the Forensic and Analytical Science Service of NSW Health Pathology (FASS). Upon analysis by Mr Fletcher, four drugs were detected in the respondent's blood.
4. Dr Judith Perl, a Senior Pharmacologist at the NSW Police Force Impaired Driving Research Unit determined from the blood sample that at the time of the collision the respondent was under the influence of cannabis to the extent that his driving ability would have been impaired.
5. The Crown case against the respondent is that he was the driver, that he lost control of the vehicle prior to the impact and that the impairment resulting from the influence of cannabis was a factor in his loss of control of the vehicle.

The relevant legislation

1. Section 52A(1) of the Crimes Act 1900 (NSW) provides that a person is guilty of the offence of dangerous driving occasioning death if the vehicle driven by the person is involved in an impact occasioning the death of another person and the driver was, at the time of the impact, driving the vehicle under the influence of intoxicating liquor or of a drug. Section 52A(3) provides for a similar offence in respect of dangerous driving occasioning grievous bodily harm.
2. Section 52AA(3A) provides as follows: "Evidence of intoxication - drugs For the purposes of section 52A, evidence may be given of the concentration of a drug (other than alcohol) present in the accused's blood or urine at the time of the impact occasioning death or grievous bodily harm as determined by a blood or urine analysis carried out in accordance with Part 4 of Schedule 3 to the Road Transport Act 2013."
3. Part 4 of Sch 3 to the Road Transport Act 2013 (NSW) provides for the procedure to be used in taking and analysing blood samples. Clause 24 of Sch 3 so far as relevant is in the following terms: "(1) This clause applies in relation to the taking of a blood sample under this Schedule by an authorised sample taker (a blood sample taker). (2) A blood sample taker must - (a) place the sample into a container, and (b) fasten and seal the container, and (c) mark or label the container for future identification, and (d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person's blood. (3) The blood sample must be placed in a security box (whether by the blood sample taker, a police officer or a person acting under the direction of the sample taker or officer) as soon as is reasonably practicable after the procedures in subclause (2) have been completed. (4) The blood sample must be kept in the security box until it is submitted to a prescribed laboratory for analysis."
4. Clause 27 of Sch 3 deals with the conduct of an analysis. Clause 27(1) and cl 27(4) are of relevance. They are in the following terms: "(1) Subject to subclause (2), an analyst at the laboratory to which a sample is submitted under this Part may carry out an analysis of the sample, or of a portion of the sample, to determine - (a) in the case of a blood sample submitted for alcohol analysis - the concentration of alcohol in the blood, or (b) in the case of a blood sample submitted for drug analysis - whether the blood contains a prescribed illicit drug or other drug (as the case requires), or (c) in the case of an oral fluid sample submitted for an oral fluid analysis - whether the oral fluid contains a prescribed illicit drug, or (d) in the case of a urine sample - whether the urine contains a drug. …. (4) An analysis referred to in subclause (1) may be carried out, and any act, matter or thing in connection with the analysis (including the receipt of the sample to be analysed and the breaking of any seal securing the sample) may be done, by a person acting at the direction or under the supervision of an analyst, and in that event is taken to have been carried out or done by the analyst."

The procedure to be adopted using an S-Monovette blood collection tube

1. In the present case the sample was taken by the use of an S-Monovette blood collection tube. Instructions for the use of the tube were in evidence before the trial judge in the voir dire hearing on the admissibility of the evidence. The instructions provide the following steps.
2. The first step involves aligning the pins on the inner red S-Monovette cap with slots in the needle, pushing the S-Monovette onto the needle immediately prior to blood collection and securing by slightly twisting clockwise.
3. The second step involves the taking of the blood. The third step involves removal of the S-Monovette tube from the needle by turning anticlockwise and pulling gently. The needle remains in the vein and then should be withdrawn from the vein and safely disposed of. The instructions emphasise that the S-Monovette should be removed first and then the needle withdrawn. The piston is then pulled back and locked into the S-Monovette base, and the plunger is broken off.
4. Next, the outer red security cap is pushed firmly over the inner red S-Monovette cap until it "clicks" into position. The instructions warn not to try to unscrew the red security cap, or the tamper-evident ring will be broken and separated.
5. The final step is to place the S-Monovette in a yellow capped protective container, which must be securely capped and placed into a biohazard bag.
6. It was common ground that the outer red security cap was to protect against tampering. When the sample taken from the respondent came to be examined by Mr Fletcher the outer cap was not on the container.

Senior Constable Little

1. Senior Constable Little gave evidence of the manner in which a blood sample taken at a hospital after a motor vehicle accident is stored and transported. He gave evidence that samples taken by an authorised sample taker are collected in a vial and then placed in a blue box on the wall of the hospital. He said there are two locking mechanisms on the box, the first which locks it to the wall and the keys to which are held by the officer in charge of the local police station. He said there are another set of keys which actually opens the box which are held by the Blood Sampling Unit.
2. Senior Constable Little stated that once the sample is placed in the blue box, the local police obtain that box and place it into a grey transport box which is also padlocked. He said the keys to the grey transport box are held by the officer in charge of the police station that arranges the collection of the box, and also the Blood Sampling Unit.
3. He described the method of placing the vial into the blue box, noting that there was a handle in the box and that the sample falls into the container and is observable through a little window at the bottom of the box.

Nurse Irvin

1. Nurse Kerry Irvin was the nurse who took the blood sample from the respondent. She made a statement to the police. The following extract from her statement is of relevance: "9. I spoke with the police, I don't remember which one, and they told me that the male person was the driver of a motor vehicle that had been involved in the accident. The police asked me to make sure that someone took a blood sample from him. 10. I went to the store room and obtained one blood sample kit. I went to the resus area and opened the kit. I began reading the papers that were inside. I didn't recognise the document, there was nowhere for someone to co-sign it. I went back to the store room and I got another blood kit and went back to the resus area. I opened the second kit and compared the papers inside and found they were the same as the first kit. I presumed that the paperwork had been changed since the last one that I had done, which was about 12 months before. 11. By that time, the male patient had been moved from the Hold and Treat area and into the resus bay where I had set up the blood kits. I introduced myself to the male and told him that I was required to take a blood sample. I said, 'For the purposes of drug and alcohol testing as per requested by the police, can you give me your full name, address and date of birth please'. I didn't know the name of the male until I asked [for] his name and his date of birth and his address for the sample. The male told me his name was Chris Riley and he did give me his name and address, which I wrote on a piece of paper. I put the piece of paper in my pocket and went on to take a sample from Chris Riley. 12. After taking the sample, I sealed the vial. The vial is sealed with a number of [sic] it, and then it goes into a transport tube. I completed the paperwork using the details from the paper in my pocked that the patient told me. I put the transport tube and the completed paper into a zip lock bag. The zip lock bag goes into a blood box that at Gilgandra Multi Purpose Service Hospital, is located in the pathology room, next to the resus area. I held onto the sample until I went to the pathology room, it was only a matter of minutes after taking it. The blood box is high on the wall, and I couldn't reach, so I asked a taller policeman that was nearby to help me. I gave the sample to him and I watched the policeman put the sample that I had taken into the blood box. 13. I remember that I used two kits to take the sample but it was only to check the paperwork that was inside the kits, not due to contamination. The only way to get two separate numbers is that I accidentally used the vial seals from one kit and the numbered paperwork from the other kit."

Mr Brett Fletcher

1. Mr Fletcher, an analyst employed by FASS, gave evidence on the voir dire. He referred to a statement he made in which he said, "Blood sample tubes for traffic matters are designed to include a screw cap which contains the blood within the tube". He identified that as the first cap which went on, being the screw top which contains the blood within the tube. He also referred to the other, larger cap which he described as "an outer, tamper-evident security cap".
2. Mr Fletcher said that when he received Mr Riley's sample, cap 1 was in place but cap 2 was missing. He said, however, that if cap 1 was in place the integrity of the sample would be preserved as it was an airtight seal, so it would seal the blood safely within the tube. He said it was common that samples arrived at his laboratory missing cap 2.
3. He stated that he had seen a situation where cap 1 was not in place but cap 2 was. He described this as problematic, because cap 2 is not an airtight seal and he would expect blood to be leaking from the tube in that scenario. He stated that this would mean that particularly something like an alcohol analysis would be compromised because it would not be contained within the tube. He said if only cap 2 was present that would have been noted in his notes.
4. In cross-examination, Mr Fletcher agreed that when he talked about the integrity of the sample being ensured by the inner screw cap, he was talking about scientific integrity, not integrity in the sense of being tampered with. He agreed that the inner screw cap can be removed and put back on the vial. He said he would not be able to detect whether that had occurred.
5. He also agreed that he could not say anything else as to the integrity of the process prior to the arrival of the sample in his laboratory.
6. He confirmed that the notation on his certificate that the sample was not sealed on arrival referred to the fact that the security cap was missing.

The relevant provisions of the Criminal Appeal Act and the Evidence Act

1. To better understand the judgment of the trial judge on the voir dire and the submissions it is convenient to set out the provisions of s 5F of the Criminal Appeal Act and s 138 of the Evidence Act. Section 5F is in the following terms: "5F Appeal against interlocutory judgment or order (1) This section applies to - (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings - (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is - (a) a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or (b) a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or (c) a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider. (3AB) An appeal under subsection (3AA) may be made whether or not an appeal has been made by a party to the proceedings, but only if - (a) the Court of Criminal Appeal gives leave to appeal, or (b) the judge or magistrate of the court of trial certifies that the decision is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal - (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001."

The judgment on the voir dire

1. The trial judge stated that the determination of the objection to the evidence came down to a reasonably simple question: Has the Crown proven that the sample received at FASS was sealed in accordance with what is required under the legislation? She stated there was a further question as to whether the Crown could prove that the sample was not tampered with. She stated that there was no requirement that the defence prove that the sample was tampered with. She stated that the onus of proof was important in this case.
2. It should be noted that in framing the question in this way, her Honour erred in relation to the onus of proof. It was correctly accepted on the appeal that the respondent bore the onus of proving illegality or impropriety, but that once that onus was satisfied the onus fell upon the Crown to establish that the evidence should be admitted pursuant to s 138 of the Evidence Act.
3. Her Honour noted that it was the requirement in cl 24 of Sch 3 of the Road Transport Act to seal the sample that was said to have been breached in this case.
4. Her Honour referred to the evidence of Nurse Irvin and her use of the S-Monovette blood collection tube to which I have referred above. She stated that her evidence to which I have referred at [26] above was extremely important. She stated that it might be surprising that Nurse Irvin had actual memory of what occurred, but that the Crown did not suggest that she reconstructed her account.
5. The trial judge also referred to the evidence of Senior Constable Little concerning the chain of custody of the sample. She stated that it was common ground that the Crown could not say definitively where the blood sample was, between when it was placed in the blue box on 27 December, until it was received at the police station on 2 or 3 January. She stated that conclusion was based on the evidence that the Crown could not show who, or how, or precisely when the box came to arrive at the Gilgandra Police Station, except that it was taken there between 27 December and 2 January, when it was found to be at the police station.
6. The trial judge noted that the Crown was able to prove that once the sample arrived at the Gilgandra Police Station it was collected by a Toll courier, transported and arrived at the Blood Sampling Unit on 5 January. She accepted that the sample was removed from the blood box and placed in a locked refrigerator. She stated that on 11 January, the sample was removed from the refrigerator and taken to the analytical laboratory at Lidcombe, and that the various witnesses who took the sample from Gilgandra Police Station to FASS in Lidcombe attested to the lack of opportunity for tampering at that stage.

A preliminary issue

1. Section 5F(3A) of the Criminal Appeal Act limits appeals by the Attorney General or the Director of Public Prosecutions on a decision or ruling on the admissibility of evidence to circumstances where the decision or ruling eliminates or substantially weakens the prosecution's case. There is no doubt that in the present case the ruling has this effect. Apart from the evidence of Dr Perl and Mr Fletcher and the report on which their evidence is based, the Crown will be unable to prove an essential element of the offence charged, namely, that the respondent was under the influence of cannabis at the time of the accident and that as a result his driving was impaired. The appeal clearly falls within s 5F(3A) of the Criminal Appeal Act.

The submissions on appeal

1. The submissions focused on two issues. First, the nature of the appellate review, and second, whether the trial judge erred in concluding the evidence was inadmissible.
2. The Director contended that whilst in the present case it was unnecessary to decide the question, the type of appellate review was in the nature of that referred to in Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9, namely, that the Court should conduct its own review of the material and substitute its own opinion if it was satisfied the conclusion of the trial judge was erroneous. By contrast, the respondent submitted that the review should take place in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40.
3. Because I have concluded that the trial judge was in error in the approach she adopted in assessing the probative value of the evidence for the purpose of s 138(3)(a) of the Evidence Act, it is unnecessary to finally determine this question. However, in deference to the parties' submissions it is appropriate that I at least express some preliminary views on the issue.

The submissions on the nature of appellate review of a decision under s 138 of the Evidence Act

The Director's submissions

1. The Deputy Director submitted that an appeal under s 5F(3A) of the Criminal Appeal Act is an appeal by way of rehearing. She submitted that in those circumstances, the appellate court must give the judgment which in its opinion ought to have been given at first instance (referring to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [30], [32], and [153]) ("SZVFW").
2. She submitted that the evaluation which the section required was not to be equated with a discretionary decision, even where the evaluation concerns an issue on which minds might differ (referring to The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [61]).
3. The Director submitted that s 138 does not provide for a court to fashion orders from amongst a range of outcomes, but rather involves a binary determination. She submitted that the context and purpose of s 138 confirms this analysis. She submitted that s 138 concerns questions of high public importance, namely, the balance to be struck between the desirability of admitting evidence which may be integral in the prosecution of a serious crime, and the undesirability of encouraging or perpetuating the obtaining of evidence by improper or illegal means. She submitted that the resolution of these questions by appellate courts leads to consistency and predictability.
4. The Director referred to the fact that the scope of appellate review of a decision under s 138 was left open in Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168 at [9] ("Kadir").

The respondent's submissions

1. The respondent submitted, referring to what was said by Allsop P in DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [88] and by Basten JA in Brown v Director of Public Prosecutions (NSW) [2018] NSWCCA 94 at [6], that taking the features of s 5F(3A) of the Criminal Appeal Act and s 138 of the Evidence Act together, the Court should conclude that it is required to exercise a substantial degree of judicial restraint, such that the trial judge's ruling cannot be overturned merely on the basis that the Court would have reached a different conclusion.
2. The respondent stated that "[a]spects of s 5F indicate a type of appeal that has been described as a 'rehearing', as distinct from an appeal in the strict sense or an appeal conducted as a hearing de novo". He submitted, however, that the reliance by the Director on what was said by Gageler J in SZVFW was an unwarranted simplification of his reasoning. He submitted that the effect of his Honour's reasoning included that whilst error is generally indispensable, the nature of the error required depends upon the type of decision at first instance, and there are a number of natural limitations which warrant restraint, depending on the nature of the appeal. He particularly relied upon his Honour's conclusion in SZVFW at [49]: "The line is not drawn by reference to whether the primary judge's process of reasoning to reach a conclusion can be characterised as evaluative or is on a topic on which judicial minds might reasonably differ. The line is drawn by reference to whether the legal criterion applied or purportedly applied by the primary judge to reach the conclusion demands a unique outcome, in which case the correctness standard applies, or tolerates a range of outcomes, in which case the House v The King standard applies. The resultant line is not bright; but it is tolerably clear and workable."
3. The respondent submitted that the nature of the decision under review in SZVFW was different to a review of a decision under s 138 on a s 5F(3A) appeal. He submitted that judicial review for legal unreasonableness involves a question of law, whilst a s 138 decision requires evaluation of multiple complex issues requiring input of subjective views and balancing conflicting public policies, and as such is akin to the type of discretion discussed in Norbis v Norbis (1986) 161 CLR 513 at 518; [1986] HCA 17.

The Director

1. The Director submitted that the trial judge erred by not assessing the probative value of the evidence based on its capacity to prove the fact in issue, namely, whether the respondent was driving under the influence of cannabis, by impermissibly making an assessment of the reliability of the evidence contrary to the principle in IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14.
2. Counsel for the Director submitted that if it was accepted that cannabis was found in an unadulterated blood sample taken from the respondent, its capacity to affect a fact in issue was very high. She submitted that the question of whether there were problems with the integrity of the blood samples was a question of reliability of the evidence, namely, whether there was a reasonable possibility that the integrity of the sample was affected. She submitted that this was the approach taken by this Court in R v Ali [2015] NSWCCA 72.
3. Counsel for the Director referred to the distinction drawn by the plurality in IMM at [50] between approaches to assessing the probative value of identification evidence made briefly in foggy conditions and in bad light. The plurality in that case pointed out that one approach is to say that taking such evidence at its highest it is as high as any other identification evidence, and then to look for particular weaknesses, whilst the other correct approach is that it is an identification, but a weak one because it is simply unconvincing. She submitted that by contrast in the present case there are only two alternatives. The first is if the blood sample is a sample taken from the respondent and its scientific integrity has been maintained. She said that in those circumstances its probative value would be very high. By contrast, she submitted that if the scientific integrity had not been maintained there would be no probative value.
4. She submitted that in the present case there was no positive finding that the integrity of the sample had been compromised, but because the outer cap was not on the sample that affected the ability of the Crown to state that it was impossible for there to have been any interference. However, she emphasised that it was the inner seal of the sample which maintains the scientific integrity. She referred to the adoption by the trial judge of the submission by trial counsel for the respondent that the probative value is not high because the integrity of the sample cannot be guaranteed. She submitted that this involved a misstatement of the principle, because where there are questions concerning the integrity of the sample it is not the matter that the evidence is not admissible until the Crown can, in effect, prove beyond reasonable doubt that the evidence makes out what it is said to make out", but rather whether it had the capacity to do so. She submitted that what the trial judge found was a risk of tampering which the Crown could not exclude and that that was a matter which in fact went to the question of reliability.

The respondent

1. The respondent in his written submission helpfully supplied a chronology of events. It is convenient to set it out in full. No Date Event Nurse Irvin took a blood sample from the respondent. She said she then affixed the outer cap to the vial that contained the sample (see further below). 1 27 Dec 2016 She then placed the vial into a transport tube before putting it and the relevant paper work into a zip lock bag. She then passed it to a police officer who placed it into the blue hospital lock box. The blue box is locked with a padlock, which can only be opened by keys held at the Blood Sampling Unit (BSU) in Sydney. The box is also locked to the wall but can be removed from the wall using keys held at the local police station and the BSU. 2 It is unknown on what date the sample left the hospital. It is unknown who took the sample from the hospital. 3 It is unknown on what date the sample arrived at Gilgandra police station. It is unknown who took the sample to Gilgandra police station. 4 3 Jan 2017 Sgt Brisbane returned to the Gilgandra police station after 4 days of leave and found a locked grey plastic travel box typically used for transporting a blue blood box to the BSU. He shook it and it sounded like it contained a sample. He arranged for SC Armstrong to contact BSU to have the item collected. SC Armstrong contacted TOLL and arranged for a courier to collect it. 5 4 Jan 2017 SC Armstrong handed the box along with the consignment note to a TOLL courier. SC Jensen from BSU unlocked and opened the grey security box. He also unlocked and opened the inner blue box. He noticed no tampering with either box by the TOLL courier. 6 5 Jan 2017 He then opened the plastic carry bag, which contained the vial. He noticed the certificate number and vial number did not match although both were sealed together in the clear resealable plastic carry bag. He then placed the sample, along with other samples, in a locked fridge at the BSU. 7 11 Jan 2017 At about 10:00am SC Bugeja removed blood and urine samples from a secured fridge at the BSU. He observed "all samples were intact" and they all had certificates. At about 11:00am he delivered the samples, including the respondent's sample, to Angela Lam at the Forensic Analytical Science Service (FASS) at Lidcombe. He noted "no diversions" from normal procedures. 8 11 Jan 2017 Upon receipt of the sample at FASS it was observed the sample did not contain an outer tamper evident security cap.

1. Senior counsel for the respondent submitted that the Director sought to argue the case on a different factual basis to that found by the trial judge, namely, that Nurse Irvin innocently forgot to put the outer cap on. She submitted that if the Crown wished to challenge the acceptance by the trial judge of Nurse Irvin's evidence there should have been a ground of appeal claiming that the finding was not open or that it was contrary to incontrovertible evidence. She also pointed out that it was submitted on behalf of the respondent in the Court below that there was a breach of the legislation because the outer cap was removed without a direction from Mr Fletcher.
2. In written submissions filed on behalf of the respondent the trial judge's findings as to the contravention were summarised as follows: 1. Part 4 creates a highly regulated regime for taking, handling and analysing blood samples (Reasons at 3, 12 and 16). 2. The sample was not "sealed" when received by the analyst on 11 January 2017 (Reasons at 9-10). 3. Nurse Irvin affixed the outer cap more than two weeks earlier on 27 December 2016 (Reasons at 7-8). 4. The cap did not fall off (Reasons at 12). 5. It is a mystery what happened to the cap (Reasons at 16).
3. Senior counsel for the respondent submitted that the reference by the trial judge to the sample not being sealed was made in dealing with the Crown's contention that it was in fact sealed when it was received at FASS in accordance with the legislation because the inner cap was on.
4. Senior counsel for the respondent referred to the finding by the trial judge that there was no evidence the cap had fallen off, which she described as troubling because it went directly to the integrity of the relevant evidence. She submitted that the trial judge concluded that her inability to find an explanation for the removal of the cap added to the seriousness of the contravention. She submitted that the case was different to Bauer because even taking the evidence at its highest, there was a clear breach of the integrity of the sample which lessened its probative value (and the evidence of Mr Fletcher which relied upon it). She accepted, however, that the trial judge concluded that she could not say for sure that the blood was tampered with.
5. Senior counsel for the respondent submitted that none of these matters had been addressed by Director in his submissions.

The standard of appellate review

1. In Brown v The Director of Public Prosecutions (NSW), Basten JA at [6] pointed out that the nature of an appeal is a function of four factors: the provision under which the appeal is brought, the provision under which the decision the subject of the appeal was made, the particular issue raised, and the nature of the error alleged.
2. In DAO at [83] Allsop P, referring to Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158, was prepared to accept that an appeal under s 5F of the Criminal Appeal Act was an appeal by way of rehearing. Nonetheless, it is important to consider the nature of the order from which the appeal is brought. In the present case two things may be noted. First, it is an interlocutory order and second, it is brought under the exception contained in s 5F(3A) to the principle that s 5F does not extend to appeals against rulings relating to the admissibility of evidence. Further, the requirement that the ruling would eliminate or substantially weaken the Crown case emphasises the importance of the matter under consideration to the outcome of the proceedings. Although the ruling is interlocutory, if as in the present case it effectively eliminates the Crown case it implies that the judicial restraint involved in the review of "discretionary" decisions in accordance with the principles in House v The King would not necessarily apply.
3. In most cases, appeals under s 5F(3A) will not give rise to any difficulty as to the standard of appellate review. A decision to admit or reject evidence will generally involve a question of law which allows for only one answer. The issue will only arise in the application of provisions such as s 138 which involve balancing a range of considerations including the probative value of the evidence.
4. Prior to dealing with s 138, it is convenient to consider some of the authorities which have dealt with the scope of appellate review in relation to decisions of the nature of those which have been described as discretionary decisions.
5. Norbis v Norbis involved a decision of a judge altering the property interests of parties to a marriage in applications under s 79 of the Family Law Act 1975 (Cth). Mason and Deane JJ at 518 described the order as discretionary because it depended upon the application of a very general standard of what was just and equitable, which called for an overall assessment of the matters mentioned in s 79(4), each of which called for an assessment of circumstances. Their Honours went on to make the following remarks at 518-519: "The principles enunciated in House v. The King were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal." (footnote omitted)

Did the trial judge err in rejecting the evidence?

1. There are a number of initial difficulties in dealing with this issue. First, as I indicated the trial judge erred in concluding that the onus lay on the Crown to disprove illegality. However the Director did not dispute that there was illegality or impropriety within the meaning of s 138. In these circumstances it is unnecessary to take this matter any further.
2. The second matter is of somewhat greater significance. The Director, whilst conceding illegality, put his case on the basis that the relevant contravention was a contravention of cl 24 of Sch 3 of the Road Transport Act, namely, a failure to fasten and seal the container by not affixing the outer cap. This submission was made notwithstanding the trial judge accepted Nurse Irvin's evidence that she did in fact seal the container with the outer cap and that the relevant contravention was that an unknown person tampered with the sample by removing the outer cap. Although the trial judge referred to the sample not being sealed, it was evident having regard to her acceptance of the evidence of Nurse Irvin that she was referring to her conclusion that the outer cap had been removed between the time the sample had left the possession of Nurse Irvin and its arrival at Gilgandra Police Station some seven days later.
3. Whether or not it would be open to do so, her Honour's factual finding was not challenged on the appeal. Her conclusion in these circumstances has to be evaluated on the basis that at some point the outer cap appears to have been removed. However, it is important to note that her finding was not that the blood sample had been tampered with, but that it could not be positively shown by the Crown that the sample was taken in accordance with Pt 4 of Sch 3. It is also implicit in her adoption of the respondent's submission to the effect that the gravity of the impropriety or contravention is unknown and that the probative value is not high because the integrity of the blood sample cannot be guaranteed: see [53] above.
4. In these circumstances the reliability of Mr Fletcher's evidence and that of Dr Perl depends on the reliability of the blood sample. Mr Fletcher's evidence, to which I have referred at [28] above, was that if the inner cap was present it would seal the blood safely within the tube. He accepted that the inner screw top can be removed and put back on the vial.

Orders

1. In the result I would make the following orders: 1. Appeal allowed. 2. Set aside the ruling of Baly SC DCJ of 3 December 2019 excluding the evidence of the FASS analyst Mr Brett Fletcher and that of Dr Judith Perl. 3. Declare that the evidence of Mr Fletcher and Dr Perl is admissible in these proceedings.
2. BUTTON J: I agree with the Chief Justice that the difficult question of the nature of appellant review of a determination to admit or reject evidence pursuant to s 138 of the Evidence Act 1995 (NSW) need not be decided to determine this appeal.
3. Having said that, the presence of the words "desirability" and "undesirability" in the section may, in my opinion, play a role in determining whether the question of admission or rejection of evidence posited by the section can be characterised as admitting of only one right answer. So may the fact that, although s 138(3) sets out a number of matters that must be taken into account, it does so without limitation of other matters that may be taken into account.
4. I also agree with the Chief Justice that, in accordance with The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69], the probative value of the evidence depended upon its potential to prove to the satisfaction of the jury that the respondent drove with THC in his blood, despite the obvious criticisms that can be made before the jury of the provenance of the evidence. The probative value of the evidence, on that understanding of the concept, was very high.
5. Finally, reflecting upon the section afresh, I agree with the Chief Justice that the evidence should be admitted, not least because of the gravity of the alleged offending and the importance of the evidence to the prosecution case.
6. In short, I agree with the reasons and proposed orders of the Chief Justice.
7. WILSON J: I agree with the orders proposed by the Chief Justice, for the reasons his Honour has given.
8. I also agree that, for the purposes of these proceedings, it is not necessary to come to a concluded view as to the nature and scope of appellate review.

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