Police v Hall

(2006) 95 SASR 482; [2006] SASC 281

Supreme Court of South Australia

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Interrogate

Catchwords

1. Evidence
2. › Discretionary exclusion of evidence
3. › Unfairness discretion
4. › Non-confessional evidence
5. › Real evidence
6. › Whether discretion extends to loss of statutory procedural right through no fault of defendant
7. › Whether inability to rebut statutory presumption renders trial unfair
8. › Road Traffic Act 1961 (SA), ss 47B, 47G(1), 47G(1a)
1. Evidence
2. › Discretionary exclusion of evidence
3. › Public policy discretion
4. › Bunning v Cross discretion
5. › Whether enlivened only when evidence obtained by unlawful or improper conduct
6. › Whether extends to improper conduct closely connected to but occurring after obtaining of evidence
7. › Road Traffic Act 1961 (SA), s 47G
1. Criminal Law
2. › Drink driving offences
3. › Breath analysis evidence
4. › Statutory presumption of accuracy
5. › Right to blood test to rebut presumption
6. › Whether loss of opportunity to obtain timely blood sample is ground for exclusion of breath analysis evidence
7. › Road Traffic Act 1961 (SA), ss 47B, 47E, 47G(1), 47G(1a)
1. Appeal and New Trial
2. › Appeal
3. › Reconsideration of earlier Full Court decision
4. › Whether recognised bases for reconsideration established
5. › Whether decision plainly wrong or inconsistent with binding authority

Quick Take

The inability of a defendant to obtain a timely blood sample to rebut the statutory presumption of accuracy of a breath analysis, where that inability arises through no fault of the defendant (such as hospital delays), does not of itself enliven the unfairness discretion to exclude the breath analysis evidence. The unfairness discretion requires demonstration that the trial itself would be unfair — not merely that a statutory procedural right has been rendered ineffective. However, this was a 3-2 decision and the scope of the unfairness discretion in this context remains contested.