Police v Dunstall [2015] HCA 26 – High Court makes it more difficult for drink drivers to challenge breath analysis reading

In Police v Dunstall, the High Court unanimously decided that the “general fairness discretion” did not apply to prevent the police admitting breath analysis evidence where the defendant’s blood sample was unable to be tested. Mr Dunstall’s blood sample was not able to be tested, as the doctor conducting the test did not draw enough blood for the sample. It was due to no fault of the police and no fault of Mr Dunstall that the blood sample was unable to be tested. The decision limits the ability for drink driver defendants to challenge breath analysis evidence.

The drink driving offence in South Australia

1.       The offence is contained in s47B(1)(a) of the Road Traffic Act 1961 (SA)
t is an offence to drive a motor vehicle with the prescribed concentration of alcohol present in your blood (0.05g or more alcohol in 100 millimetres of blood). The offence is punishable by a fine and a mandatory disqualification from holding a driver’s licence for a period of time which varies depending on whether it is the person’s 1^st, 2^nd or 3^rd drink driving offence and whether the offence is Category 1, 2 or 3:

                Category 1: 0.05 – 0.07g of alcohol in 100 millilitres of blood

                Category 2: 0.08 – 0.14g of alcohol in 100 millilitres of blood

                Category 3: 0.15g of alcohol or more in 100 millilitres of blood 

2.       Initial testing
A police officer can require a driver to undertake an alcotest (s47E(1)(a)). If an alcotest indicates the prescribed concentration of alcohol may be present in the person, a police officer can require the person to undertake a breath analysis test (s47E(2ab). The alcotest and breath analysis reading is designed to provide a relatively accurate correlation with alcohol concentration in the blood.

3.       Further testing at police station
If an alcotest reading comes up as “positive”, it is common for a driver to be taken to a police station to receive a breath analysis.

Section 47K(1) creates a presumption that the breath analysis reading corresponded to the blood alcohol level at the time of the reading. It is also presumed that the concentration of alcohol at the time of breath analysis performed within two hours of driving was the concentration of alcohol at the time of driving (s47K(1ab)).

 4.       Election to have a blood test 

The presumption that the breath analysis reading correlates with blood alcohol level can only be rebutted using evidence based on an analysis of the defendant’s blood that was taken in accordance with the prescribed procedures (s47K(1a)). In practice, this requires the defendant to adduce evidence based on the results of analysis of the blood sample.

After a “positive” breath analysis reading has been made, the police must give the person an oral warning to the effect that if the person wants to have a blood test, they will have to make their own arrangements, follow the correct procedures, and use the special blood test kit. A written warning to the similar effect must also be provided. There is not a “statutory right” to a blood test, however, the police must provide an approved blood test kit if requested by the defendant.

There are 19 procedures for taking the blood sample set out in Regulation 11 of the Road Traffic (Miscellaneous) Regulations 1999 (SA).

The facts

Mr Dunstall was subjected to an alcotest, which returned a positive result. A breath analysis test at the police station returned a result of 0.155 grams of alcohol per 100 millimetres of blood. This reading is high and is a Category 3 reading. Mr Dunstall was given the blood test warning and elected to have a blood test. Police drove Mr Dinstall to Noarlunga Hospital where blood samples were taken by a doctor.

Regulation 11(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) requires each container in the blood collection kit to contain a sufficient quantity of blood to enable an accurate evaluation to be made of any concentration of alcohol present in the blood. There must be at least two containers in the sample. One of the samples is provided to the police who pass the sample on to Forensic Science SA, who provide a certificate of analysis to the police and the defendant. When Mr Dunstall’s sample was sent for analysis, the sample could not be used because the blood was denatured, as an insufficient quantity of blood had been collected.

The legal question
Mr Dunstall could not access the “blood test defence”, as the blood sample used was not able to be analysed or tested. He argued that the police should not be able to admit the breath analysis evidence, as this would lead to an unfair trial.

The legal question:

If the breath analysis evidence was able to be used in the trial, would this result in an unfair trial given the inability to analyse the blood sample results?

More specifically:
Is there a common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudice misuse where admission would render trial of accused unfair?

The lower courts
In the Magistrates Court, Magistrate Dixon exercised the “general unfairness discretion” to prevent the police admitting the breath analysis evidence.  Justice Kelly of the Supreme Court of South Australia agreed with Magistrate Dixon, as if the breath analysis evidence was admitted Mr Dunstall would be “effectively placed in the same position as if no blood sample had ever been taken”. The Full Court of the Supreme Court unanimously acknowledged the existence of an unfairness discretion and by majority said it had been open to Magistrate Dixon to exclude breath analysis evidence using the “general unfairness discretion”. In the dissent, cited by the High Court, Chief Justice Kourakis analysed the legislative scheme, particularly the fact the legislative scheme does not confer a procedural right to adduce evidence of blood sample analysis, in deciding it was not open to use the “general unfairness discretion”.

French CJ, Kiefel , Bell, Gageler, and Keane JJ:

The High Court analysed the rules for exclusion of evidence in a criminal proceedings, including:

1.       R v Lee (1950) 82 CLR 133 at 159 (“Lee Discretion”) – fairness discretion to exclude evidence of confessional statements in a criminal proceeding;

2.       R v Christie [1914] AC 545 (“Christie Discretion”) – court’s ability to exclude evidence where the probative value of the evidence is outweighed by the risk of prejudice to the defendant;

3.       Bunning v Cross (1978) 141 CLR 54 (“Bunning v Cross Discretion”) – court’s ability to exclude evidence where the evidence has been tainted by illegality or impropriety on the part of the law enforcement authority.    

Mr Dunstall’s case did not come under any of these exclusionary rules. The High Court then looked at whether a “general unfairness discretion” would apply. In South Australia, the “general fairness discretion” has been discussed in a number of cases, including R v Lobban (2000) 77 SASR 24 where the Full Court of the Supreme Court stated the general unfairness discretion permits the court to exclude probative evidence untainted by illegality, impropriety or risk of prejudice where its admission would be unfair to the accused in the sense that it would make the trial of the accused an unfair trial. The discretion was not applied in that case, so it was unnecessary for the ambit of the discretion to be discussed.

The majority undertook a strict analysis of the statutory scheme. The legislative scheme provides the prosecution with an aid for proof and closely confines the circumstances in which rebuttal evidence may be adduced. The defendant can only admit the evidence of the blood test results if these procedures are complied with. The regime limits the evidence the defendant can use to rebut the breath analysis evidence.

While it was not necessary to decide the ambit of the “general unfairness discretion”, the majority indicated it involves a test of fairness that requires the court to balance the interests of the defendant and those of the community.

Nettle J:

Justice Nettle’s judgment included further comments on the unfairness discretion, highlighting that each case will turn on its facts. The facts in Mr Dunstall’s case show that s47K(1a) does not confer any procedural or substantive right on the respondent but limits the evidence which the respondent can use to rebut the breath analysis evidence. It was unknown what the blood test results would have shown – they could have correlated with the police evidence. Mr Dunstall had to show that the loss of evidence would constitute an unacceptable risk of injustice or fairness. It was not sufficient to show it could have that effect.

Justice Nettle indicated the general unfairness discretion exists to ensure a fair trial according to the law as the law may be effected by statutory modification – it “does not exist to give effect to idiosyncratic notions of “fair play” or “whether the forensic contest is an even one””.

Outcome

The High Court unanimously decided the general unfairness discretion does not apply to Mr Dunstall. The case was remitted for further hearing before the Magistrates Court.

The decision significantly confines the ability of drink drivers to challenge the breath analysis reading. This confinement aligns with the intention of the statute in South Australia.

A discretion to exclude police evidence may be exercised where:

·         failure to obtain blood sample was due to police misconduct – ie the failure to make the proper warning to the defendant or the failure to provide the defendant with an approved blood test kit on request (Bunning v Cross discretion);

·         the statutory defence is made out under s47K(8) where the defendant proves the kit was delivered unopened to the medical practitioner and the medical practitioner gives evidence that because of a deficiency in the kit he or she was unable to comply with the prescribed procedures.

Practical considerations for defendants:

·         be aware of blood collection procedures and your ability to have a blood test to ensure correct steps are taken;

·         avoid Noarlunga Hospital when having blood samples taken – avoid emergency departments generally if you can, as a drink driving blood test will not be prioritized over true emergencies and you may find yourself outside the regulatory timeframe to have the blood test taken.