Police v Dunstall [2015] HCA 26

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, GAGELER, KEANE AND NETTLE JJ

POLICE APPELLANT

AND

JASON ANDREW DUNSTALL RESPONDENT

Police v Dunstall [2015] HCA 26 5 August 2015 A5/2015

ORDER

1. Appeal allowed.

2. Set aside order 1 of the orders of the Full Court of the Supreme Court of South Australia made on 25 July 2014 and, in its place, order that:

(a) the appeal be allowed; and

(b) order 1 of the orders of Kelly J made on 5 December 2013 be set aside and, in its place, order that:

(i) the appeal be allowed;

(ii) the order of the Magistrates Court of South Australia made on 20 August 2013 dismissing the charge be set aside; and

(iii) the matter be remitted to the Magistrates Court for further hearing.

3. The appellant pay the respondent's costs in this Court.

On appeal from the Supreme Court of South Australia

Representation

M G Hinton QC, Solicitor-General for the State of South Australia with A C Moffa for the appellant (instructed by Crown Solicitor (SA))

M E Shaw QC with B J Doyle for the respondent (instructed by Caldicott Lawyers)

Interveners

N J Williams SC with G A Hill for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)

G R Donaldson SC, Solicitor-General for the State of Western Australia for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor (WA))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Police v Dunstall

Criminal law – Evidence – Judicial discretion to admit or exclude evidence – Section 47B(1)(a) of Road Traffic Act 1961 (SA) created offence for person to drive motor vehicle while prescribed concentration of alcohol present in blood – Section 47K(1) of Act created presumption that breath analysis reading corresponded to blood alcohol level at time of analysis – Section 47K(1a) of Act provided presumption could only be rebutted if defendant arranged for blood sample to be taken in accordance with prescribed procedures and adduced evidence that analysis of blood demonstrates that breath analysis reading instrument gave exaggerated reading – Where respondent charged with offence against s 47B(1)(a) and pleaded not guilty – Where breath analysis reading indicated blood alcohol level above prescribed concentration – Where respondent arranged for blood sample to be taken but sample unable to be analysed through no fault of appellant or respondent – Where appellant sought to tender evidence of breath analysis reading – Whether there exists residual common law discretion to exclude lawfully obtained, probative, non-confessional evidence unaffected by impropriety or risk of prejudicial misuse where admission would render trial of accused unfair – Whether respondent's trial unfair in relevant sense if evidence of breath analysis reading admitted.