Director of Public Prosecutions (on behalf of Hansen) v Moore

(2003) 6 VR 430; [2003] VSCA 90

Victorian Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Discretion to exclude
3. › Public policy discretion
4. › Bunning v Cross discretion
5. › Whether discretion applies to police conduct occurring after evidence obtained
6. › Breath analysis certificate
7. › Police discouraging exercise of statutory right to blood test
8. › Road Safety Act 1986 (Vic), ss 49(1)(b), 55(10), 58(2)
1. Evidence
2. › Discretion to exclude
3. › General unfairness discretion
4. › Non-confessional evidence
5. › Whether unfairness discretion available where police conduct after breath test deprived accused of opportunity to challenge evidence
6. › Road Safety Act 1986 (Vic), ss 55(10), 58(2)
1. Road Traffic
2. › Breath analysis certificate
3. › Conclusive proof under s 58(2)
4. › Whether conclusive proof provision excludes common law discretion to reject admissible evidence
5. › Road Safety Act 1986 (Vic), s 58(2)
1. Practice and Procedure
2. › Appeal
3. › From final order of Magistrates' Court
4. › Order striking out charge as a nullity
5. › Whether final order
6. › Whether capable of reinstatement
7. › Magistrates' Court Act 1989 (Vic), s 92(1)

Quick Take

In Victoria, the Bunning v Cross public policy discretion may be available to exclude breath analysis evidence where police conduct immediately after the breath test discouraged the driver from exercising the statutory right to a blood test under s.55(10) of the Road Safety Act 1986, notwithstanding that the impugned conduct occurred after the evidence was obtained. The conclusive proof provision in s.58(2) does not exclude the common law discretion to reject admissible evidence. An order striking out a charge as a nullity is interlocutory and not appealable under s.92(1) of the Magistrates' Court Act 1989.