Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Riley, Christopher [2020] NSWCCA 283 Hearing dates: 13 May 2020 Decision date: 04 November 2020 Before: Bathurst CJ at [1]; Button J at [134]; Wilson J at [139] Decision: (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. Catchwords: APPEALS – nature of appeal – nature of appellate review of a decision under s 138 of the Evidence Act – House v The King type judicial restraint EVIDENCE – exclusion of evidence – improperly or illegally obtained evidence – s 138 of the Evidence Act – probative value – reliability – evidence taken at its highest Legislation Cited: Crimes Act 1900 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Road Transport Act 2013 (NSW) Cases Cited: AW v R [2009] NSWCCA 1 BM v R [2017] NSWCCA 253 Brown v Director of Public Prosecutions (NSW) [2018] NSWCCA 94 Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 CA v R [2017] NSWCCA 324 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 Director of Public Prosecutions v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 Director of Public Prosecutions v MD (2010) 29 VR 434; [2010] VSCA 233 Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 Fleming v R [2009] NSWCCA 233; 197 A Crim R 282 House v The King (1936) 55 CLR 499; [1936] HCA 40 IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 Kadir v The Queen [2020] HCA 1; (2020) 94 ALJR 168 Karam v R [2015] VSCA 50 McCartney v R (2012) 38 VR 1; [2012] VSCA 268 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Murdoch v R (2013) 40 VR 451; [2013] VSCA 272 Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17 Norvenska v Commonwealth Director of Public Prosecutions [2007] NSWCCA 158 R v Ali [2015] NSWCCA 72 R v Arvidson [2008] NSWCCA 135; 185 A Crim R 428 R v Blick [2000] NSWCCA; 111 A Crim R 326 R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 R v Dickman (2017) 261 CLR 601; [2017] HCA 24 R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 R v GM (2016) 97 NSWLR 706; [2016] NSWCCA 78 R v Grech; R v Kadir [2017] NSWCCA 288 R v Rapolti [2016] NSWCCA 264; 317 FLR 79 Riley v R [2011] NSWCCA 238 Slater v R [2019] VSCA 213 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9 Texts Cited: Stephen Odgers, Uniform Evidence Law (15th ed, 2020, Thomson Reuters) Category: Principal judgment Parties: Director of Public Prosecutions (Appellant) Christopher Riley (Respondent) Representation: Counsel: H Roberts with B Baker (Appellant) B Rigg SC with T Quilter and C Mitchell (Respondent) Solicitors: Solicitor for Public Prosecutions NSW (Appellant) Legal Aid NSW (Respondent) File Number(s): 2017/176965 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 03 December 2019 Before: Baly SC DCJ File Number(s): 2017/176965 HEADNOTE [This headnote is not to be read as part of the judgment] Mr Christopher Riley (the respondent) was charged with dangerous driving causing death whilst under the influence of a drug, and dangerous driving causing grievous bodily harm whilst under the influence of a drug. During the proceedings, the trial judge ruled that particular evidence was inadmissible under s 138 of the Evidence Act 1995 (NSW). The Director of Public Prosecutions appealed against that ruling. The relevant evidence was that of two experts, Mr Brett Fletcher and Dr Judith Perl. Mr Fletcher's evidence was that tetrahydrocannabinol was found in the respondent's blood sample. Tetrahydrocannabinol is the psychoactive component of cannabis. Dr Perl's evidence, based on that blood sample, was 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. The expert evidence was fundamental to proving the Crown case at trial. The collection tube for the blood sample had two red caps. The first inner red cap was airtight and protected the scientific integrity of the sample. The second outer red cap was a tamper-evident cap. The nurse who took the sample gave evidence, which the trial judge accepted, that she placed the outer tamper-evident cap on the tube, although she could not recall whether she placed the inner cap on the sample. When Mr Fletcher received the sample, it was missing the outer tamper-evident cap, although the inner cap was in place. Under the Road Transport Act 2013 (NSW), a blood sample taker is required to "fasten and seal" the sample container. The trial judge held that the evidence was unlawfully obtained, as when it was received by Mr Fletcher it was not sealed in accordance with the legislation. She noted that it was a mystery as to how the outer cap came to be off. In deciding whether to admit the evidence under s 138 of the Evidence Act, the trial judge held that the probative value of the evidence was not high because the integrity of the blood sample could not be guaranteed. The Court allowed the appeal, set aside the trial judge's ruling and declared that the evidence was admissible. The nature of appellate review of a decision under s 138 of the Evidence Act i) It is unnecessary to determine the nature of appellate review of a decision under s 138 of the Evidence Act on this appeal: [114] (Bathurst CJ), [134] (Button J), [140] (Wilson J). ii) Bathurst CJ and Wilson J: Section 138 depends on a binary choice as to the desirability of admitting or rejecting the evidence. There can only be one correct answer. [101], [111] (Bathurst CJ), [139] (Wilson J). iii) Were it necessary to reach a conclusion on the issue, recent authority suggests that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King: [112] (Bathurst CJ), [139] (Wilson J). SZVFW (2018) 264 CLR 541; [2018] HCA 30; The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40, considered. iv) Button J: The words "desirability" and "undesirability" in s 138, and the lack of limitation in s 138(3) of the matters which may be taken into account, may play a role in determining whether s 138 can be characterised as admitting of only one right answer: [135] (Button J). Did the trial judge err in excluding the evidence? i) Contrary to the trial judge's conclusion, the probative value of the evidence is very high. While there are some doubts as to the reliability of the evidence, that is a matter for the jury. Assuming the jury could rationally accept the evidence, reliability should not be taken into account when assessing probative value, and the evidence must be taken at its highest: [120]-[125] (Bathurst CJ), [136] (Button J), [139] (Wilson J). IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14; referred to. The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40; R v Ali [2015] NSWCCA 72, considered. ii) Since the trial judge erred in her assessment of the probative value of the evidence, it should be considered afresh whether the evidence should be excluded under s 138. On consideration of the matters in s 138(3) and balancing competing policy considerations, the evidence should be admitted: [126]-[132] (Bathurst CJ), [137] (Button J), [139] (Wilson J). Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22, referred to. Judgment 1. BATHURST CJ: This is an appeal brought by the Director of Public Prosecutions (the Director) under s 5F(3A) of the Criminal Appeal Act 1912 (NSW) against a ruling made by her Honour Judge Baly SC (the trial judge) that evidence of an analyst, Mr Brett Fletcher and a pharmacologist, Dr Judith Perl, was inadmissible pursuant to s 138 of the Evidence Act 1995 (NSW). The Director relies on the following grounds of appeal: "ON THE GROUNDS that, with respect to the evidence of Brett Fletcher, Senior Hospital Scientist at the NSW Forensic and Analytical Science Service, and Dr Judith Perl, Senior Pharmacologist at the NSW Police Force Impaired Driving Research Unit: 1. Her Honour erred in her assessment of the probative value of the evidence, pursuant to s 138(3)(a) Evidence Act 1995; 2. Her Honour erred in her assessment of the gravity of the contravention, pursuant to s 138(3)(d) Evidence Act 1995; and 3. Her Honour erred in determining that the desirability of admitting the evidence did not outweigh the undesirability of admitting the evidence, pursuant to s 138 Evidence Act 1995." 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" 1. Tetrahydrocannabinol is the main active drug in cannabis. 2. 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. 3. 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. 4. 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." 1. 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." 1. 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." 1. Division 4 of Pt 4 of Sch 3 provides for various offences in relation to sample handling. Of relevance are cll 28 and 29: "28 Offences—destroying or tampering or interfering with samples A person must not destroy or otherwise interfere or tamper with a sample, or a portion of a sample, of a person's blood or urine taken under Part 2 except as follows— (a) after the expiration of 13 months (in the case of a sample taken under clause 12) or 12 months (in any other case) commencing on the day the sample was taken, Note. Clause 27(3) provides that a blood or urine sample that has been provided under clause 12 must be destroyed by or at the direction of the analyst who has custody of the sample without being analysed if, at the expiry of 13 months after the accident concerned, no police officer has made a notification relating to a death. (b) in the case of a sample—by or at the direction of an analyst— (i) so as to permit a portion of the sample to be sent for analysis by a medical practitioner or laboratory nominated, under clause 22, in an application made under that clause by the person from whom the sample was taken, or (ii) in the course of, or on completion of, an analysis of the sample, (c) in the case of a portion of a sample—by or at the direction of the medical practitioner or laboratory nominated under clause 22 by the person from whom the sample was taken. Maximum penalty—20 penalty units. 29 Offence—failure to comply with sample handling procedures An authorised sample taker who takes a blood or urine sample for the purposes of a provision of this Schedule must— a) in the case of a blood sample—comply with the requirements of clause 24(2) and (3), or (b) in the case of a urine sample—comply with the requirements of clause 25(2) and (3). Maximum penalty—20 penalty units." 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. The evidence on the voir dire 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." 1. Nurse Irvin gave evidence on the voir dire. She described the procedure she adopted in the following terms: "A. …On the day I opened up one kit and I looked at it and I hadn't taken a sample for probably 12 months or more, and I looked at the paperwork and I was a little bit concerned that it looked different to what I'd previously filled out, so – and I was extremely anxious and I knew how important taking a correct blood sample would be, so I actually went back to the storeroom and got a second sample kit and opened it. I looked at the paperwork, realised it was exactly the same as the other kit that I'd opened and so therefore I proceeded to then go ahead and take the sample. Within the sample is instructions. I looked at them because, as I said, it had been quite some time. I tended to sort of look at the bottom of the pictures, but basically you take this and open up a needle – obviously washing your hands first. Q. What you're doing there is you're opening a sealed package with – A. And then it clicks onto the end. As it clicks on, so then you obviously put the tourniquet on the patient, take the end of the needle. If I open very easily – sorry, then you put the needle on. This one is actually, if they already have a device, like a cannula as such. Q. Is that the complete unit? A. So that is the complete unit with the needle. Q. Would you hold it up so her Honour can see it? A. Basically you attach the needle to the plunger, then put the tourniquet around the patient. You don't actually use an alcoholic swab or anything because that can contaminate the sample as well, and then take the sample, drawing back on this, and – Q. When you say this, you're referring to the plunger at the end? A. The plunger at the end, yes, and as you pull back on the plunger then the blood enters into the tube, and then you take the – break the – Q. Just hold it up so her Honour can see it? A. Sorry, and then you actually break that, the end of the plunger off. It actually comes off, and then removing the needle." 1. She went on to describe the next part of the procedure as follows: "Q. …Describe what you've got in your hand there? A. Okay, so this is the blood sample vial which then you take the numbered and place that around the vial, and then the lid goes on top and then it goes in and that has to be – and then that goes into there and into the tube there, and is sealed, paperwork– … Q. Sorry to be pedantic about this, but you've placed the vial into another container? A. Yes. Q. What's that, just another container with a – screw top lid? A. It's just another sealing – screw top lid, yes. … Q. All right? A. Then it's placed into the blood box. Generally speaking I'm aware of the fact that the blood is to be placed in the blood box by the person that actually takes that blood. On this day – well, at Gilgandra hospital where the blood box was in the pathology room was just around the corner from the emergency resus area where I took the sample from the person, and the blood box – I'm only 5 foot tall and the blood box is very high, I could actually touch the top of the silver container, silver knob, however it needs to be pulled up and then has a sliding-type thing. I couldn't reach that. Normally when I've previously done it I've actually gotten a stool, I stood on a stool and had done it, however, ED was so busy that day and there were that [many] people, and we'd been using the stool previously for a cardiac arrest, I was unable to get to that stool, so yeah, I knew how important this sample would be, so I spoke to a tall person standing there and just said, could you please lift that up and open it and I stood – yeah, and I got them to put the sample in. So basically at no point did the sample leave my eyes, even though I physically didn't put it into the box." 1. She was then asked the following questions by the trial judge: "Q. When you are giving your evidence, Ms Irvin, are you referring to taking the blood sample from Mr Riley or was that your general procedure? A. That was an example of what I did that day. It's the same procedure. Q. Do you have a recollection of taking his? A. Definitely, yes. I was extremely anxious because Mr Riley was the last of the three people that we were expecting to arrive and police basically asked from the moment he came to the door to please take a blood alcohol sample. We were sort of quite busy attending to other cares and so forth and I think the police asked at least on two or three occasions to please ensure that someone took the sample. Also the fact that at the time we just had three critical patients in. It wasn't until I actually spoke to Mr Riley and asked him, advised him that I was going to take his blood for the purpose of a blood and alcohol and asked him for his name and date of birth and address for the relevant paperwork that I realised that it was a local patient, local person sort of thing. So that was really impacting and stuff. So yes, I definitely remember taking the blood and alcohol on Mr Riley on that day. Q. Your recollection is that you took it in accordance with what your evidence is? A. Yes. My recollection was that." 1. She then told the Crown Prosecutor she had not been required to take a blood sample since. 2. She was then asked these questions by reference to the instructions for use of the S-Monovette blood collection tube: "Q. But there's no dispute, to the best of your recollection, you also did step 4 putting the red security cap over the top of the S-Monovette cap until it clicked into position? A. I do not recall that. I remember putting the red cap on. I do not recall whether that red cap was actually on the seal or not because as nurses we're really into getting rid of our needles sort of thing so I do not recall seeing that second red cap on there. I could have possibly have discarded it with the needle and then just put the other red cap on the top of it. I really don't recall. … Q. So there's two red caps, is that right? A. I can only recall putting on the outer red cap. I cannot recall whether the inner red cap was on there at the time because the needle was attached to that there's a possibility that when I took the needle off I could have possibly have taken that cap off as well. I do not recall that that second cap was on there. But I do recall putting on the bigger red cap with the red arrow above it, I do recall screwing that onto the blood sample. … Q. So the cap that you are not sure about is the one referred to in instruction number 1 that's called the S-Monovette cap? A. Correct. … Q. So your evidence is that it's possible, is it, when you remove the needle to also take off that S-Monovette cap? A. Yes. I really – cannot recall whether it was on there or not. I recall taking – putting the needle together, taking the blood sample, removing the needle, putting the red cap on, I cannot recall whether that Monovette cap was in place on the vial at the time that I put the other outer red cap on and put the number on it and placed it into the other vial with the yellow cap, and then into the bag and then into the blood box. Q. All right. When you say the seal– A. When I – sorry, when I said the seal in my statement, I was referring to the number. Q. That's placed around? A. And that's placed around the actual tube and that I'd sealed it with the red– Q. Whereabouts on the tube is it placed? A. In the fourth picture, it has a number there at the end. Q. If the S-Monovette cap is not on, if it does come off with the needle, can the blood leak out? A. No, it's still a very tight – yeah, it's still a screw top. Q. So, the outer cap if I can call it that– A. It's – as the fourth actually says in the block letters, it actually says, 'Do not try to unscrew', because otherwise the tamper evident right will be broken, which is a ring in – so when you put that onto there it then clicks it in and becomes– Q. By that you're referring to that bigger outer cap that screws on? A. Yes. It is supposed to go onto the top, however, I cannot confirm whether that Monovette cap was actually in place or whether I– Q. That stayed in – that– A. -could possibly have discarded that with the needle, I cannot confirm that." 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." 1. Section 138 of the Evidence Act so far as relevant provides as follows: "138 Exclusion of improperly or illegally obtained evidence (1) Evidence that was obtained— (a) improperly or in contravention of an Australian law, or (b) in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. … (3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account— (a) the probative value of the evidence, and (b) the importance of the evidence in the proceeding, and (c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and (d) the gravity of the impropriety or contravention, and (e) whether the impropriety or contravention was deliberate or reckless, and (f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and (g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and (h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law." 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. 7. The trial judge noted that a Ms Angela Lim of FASS received the sample on 11 January and placed it into a locked refrigerator. Ms Lim noted on the delivery certificate the letters "NC", signifying "no cap". 8. The trial judge also referred to the evidence of Mr Fletcher to which I have referred above and to the following evidence from Dr Perl concerning the significance of the second cap. This evidence was in the following terms: "A. It's meaningless in terms of the analytical integrity of that sample. So nothing changes in that blood sample by not having the seal over it. The only thing is that putting that extra seal on it over the rubber stopper means that no one can for example put another syringe into that blood and withdraw the blood out of that vial, but you know there's no other way of securing it. I suppose to make sure that nothing can be done to the vial so that's why the extra seal's put on. Q. So if a blood sample is taken and sealed at the point where it's taken, and when it turns up in the laboratory, that seal is broken, you can't exclude the possibility can you, that the integrity of that blood sample has been compromised from the moment it was sealed, to the moment it arrives in the laboratory, you can't exclude that possibility can you? A. I couldn't exclude that someone who with the right equipment could remove blood or introduce blood into that vial." 1. The trial judge noted that it was a mystery as to how the seal which Nurse Irvin said she affixed came to be off. However, she said that even if she did not accept the evidence of Nurse Irvin and found she did not put the outer cap on, it would "still leave a problem that the Crown cannot answer". In that context, she noted that for a week over the New Year period the Crown was effectively unable to account for the sample, and there was no evidence that the outer cap was found loose in the blue box and so had fallen off. 2. In that context, she said that the first question which she was required to answer was whether it can positively be shown by the Crown that the sample was taken in accordance with Pt 4 of Sch 3 of the Road Transport Act. As I have indicated, her Honour was in error in stating that the onus fell upon the Crown to establish this fact. She stated that the requirements in Pt 4 of Sch 3 are strict requirements that require strict conformity, so that the integrity of the samples is ensured and so that the evidence obtained, based upon subsequent analysis, is admissible. 3. In that context, she rejected the submission that the sample was in fact sealed. She stated that the evidence and a plain reading of the material including the guidelines demonstrated that the sample was not sealed in accordance with the requirements. She concluded that sealing required more than simply placing the inner cap onto the vial. She stated that conclusion followed from a number of factors. First, the analyst Mr Fletcher had concluded that the sample was not sealed. Second, the instructions referred to the need to place the red security cap firmly over the inner cap, and emphasised that the outer cap must not be unscrewed, "otherwise the tamper-evident ring will be broken and separated". 4. She concluded that the reference to the seal in cl 27(4) of Sch 3 of the Road Transport Act must be the same seal as referred to in cl 24, and that breaking the seal must at least include breaking the seal on the outer security cap, as it was the outer cap which protects the integrity of the sample. In those circumstances, she found that the sample was not sealed and that the evidence was unlawfully obtained. 5. Her Honour then proceeded to deal with the matters required to be taken into account under s 138(3) of the Evidence Act. Dealing with probative value, she stated that the evidence of Mr Fletcher was that "the analysis is only valid from the time that the blood sample was received into the laboratory". She described that as a significant opinion where there was a problem with the sample and that this limits the probative value of his evidence and that of Dr Perl considerably. 6. She accepted that the evidence of Mr Fletcher and Dr Perl was crucially important. She also accepted that the offences were very serious. 7. In dealing with the gravity of the contravention, her Honour stated that she thought the possibility of tampering was relevant, and that the Crown was unable to find an explanation for how it came to be that the sample was not sealed when it arrived at the laboratory. She stated that the Crown could not exclude the possibility of tampering, which she described as a very grave contravention. 8. She stated that she was unable to make a finding whether the contravention was deliberate or reckless. She accepted that the contravention was not contrary or inconsistent with the International Covenant on Civil and Political Rights, and that there was no evidence as to whether any other proceedings were likely to take place. 9. So far as the difficulty of obtaining the evidence without contravention was concerned, her Honour noted the Crown submission that it would have been impossible for the police to obtain the evidence without impropriety. She accepted that what occurred was the only chance for the police to ensure the blood sample was taken, but said that was not to the point. She stated that the contravention could hardly be described as a "mere administrative oversight". 10. In that context, she stated that the Crown was left in a position whereby it could not account for how the sample got from the hospital to the police station. She said that the possibility of tampering might have been discounted had there been evidence from whoever transported the sample. 11. Her Honour stated that ultimately s 138 involves a balancing act. In concluding that the evidence should be excluded she accepted the following submission of counsel for the respondent: "Once the Court has balanced all of the matters relevant to the exercise of discretion under s 138, it is submitted that the public interest in obedience to the law in the gathering of evidence must prevail. The public interest in preserving the integrity of the blood sample analysis process – identifying with precision the precise circumstance of any impropriety or contravention of that process – is manifest. The Court would not sanction the use of a blood sample analysis in any case – not merely in this case – where: (a) the tamper evident cap went missing in unexplained circumstances; (b) the Crown is unable to account for the precise location or chain of custody of the blood sample for a week; (c) the gravity of the impropriety or contravention is unknown but the only explanation consistent with the evidence appears to involve a contravention; (d) the probative value of the evidence is not high because the integrity of the blood sample cannot be guaranteed; and (e) the prejudice and unfairness to the accused is unknowable; and (f) there is a clear and significant public interest in protecting the integrity of the blood sample analysis process." 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." 1. 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. 2. While the respondent accepted that s 5F(3A) imposes a brake on the number of Crown appeals, thereby limiting the fracturing of trials, he also submitted that the undesirability of such fracturing still has work to do in interpreting the standard of an appellate review under that provision. He submitted that a large number of appeals under s 5F deal with interlocutory matters, and a great deal of judicial restraint has traditionally been observed in connection with the appellate review permitted by that section. 3. The respondent also submitted that although there is power in the Court to substitute its own decision regarding admissibility, such matters are regularly remitted to the trial judge. He also submitted that the decision to refuse to admit evidence, whilst not subject to further review in the event of an acquittal, is essentially procedural. 4. The respondent submitted that the preponderance of authority favours an approach analogous to that set out in House v The King. He referred to R v Grech; R v Kadir [2017] NSWCCA 288 at [69] (the question was left open in the High Court in Kadir at [9]), R v Rapolti [2016] NSWCCA 264; 317 FLR 79 at [201], R v Camilleri (2007) 68 NSWLR 720; [2007] NSWCCA 36 at [27]-[34], and Fleming v R [2009] NSWCCA 233; 197 A Crim R 282 at [22]. He also referred to the decisions of the Victorian Court of Appeal to the same effect: Director of Public Prosecutions v MD (2010) 29 VR 434; [2010] VSCA 233; Director of Public Prosecutions v Marijancevic (2011) 33 VR 440; [2011] VSCA 355 and Slater v R [2019] VSCA 213. He noted that the latter case was decided after the decision of the High Court in SZVFW. 5. The respondent submitted that the issue is whether the judgment or discretion involved in the original decision forms part of a spectrum of available decisions, rather than a duality of type of decision-making, referring to DAO at [47] and [50]-[51]. He submitted, referring to the decision in the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [19] that a discretionary decision is one in which no one consideration and no combination of considerations is necessarily determinative of the result. He submitted that in most applications of s 138, the mandatory and further considerations taken into account will likely point in conflicting directions, and so long as all relevant matters and no irrelevant matters were taken into account, different outcomes may be tolerated. 6. The respondent also noted that determinations under s 137 of the Evidence Act have been treated as analogous to discretionary decisions (cf Riley v R [2011] NSWCCA 238 at [161]-[162]). He submitted that the decision in Bauer, which determined that in an appeal in respect of a ruling under s 97 of the Evidence Act it was a matter for the appellate court to determine whether the evidence was of significant probative value, involved fixed legal standards and different considerations to those under s 138 as the analysis under that section did not invoke such a standard. The submissions on admissibility 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. 5. Counsel for the Director noted that if the sample had been sealed and the external cap placed on it, a certificate of the result could have been tendered to make out the offence under s 52A(3)(a) of the Crimes Act. She noted that the Crown did not challenge the finding that the requirement to seal the sample was not complied with, but submitted that the Crown was still entitled to prove the provenance of the sample. She submitted that the trial judge did not find that its integrity was compromised, but rather that the possibility that a fact finder might find that the integrity was compromised reduced its probative value. She submitted that that was not the correct approach. 6. Counsel for the Director submitted that the argument in the Court below focused on the words "fasten and seal" in cl 24 of Sch 3 of the Road Transport Act, submitting that the respondent successfully contended that on its proper construction "fasten" and "seal" require the fixing of both the inner cap and the outer anti-tampering cap. She noted that it was a separate offence to remove the outer anti-tampering cap. 7. Dealing with the trial judge's acceptance of Nurse Irvin's evidence that she affixed the outer cap, counsel for the Director submitted that the fact that the primary judge did not find that the contravention was an unauthorised removal of the outer cap sat uneasily with the acceptance of Nurse Irvin's evidence. She rejected the proposition that the trial judge was using the word "seal" in a colloquial sense, submitting that the argument in the Court below focused on the requirement that the blood sample taker must fasten and seal the container. 8. Counsel for the Director submitted that the precise finding by the trial judge was that the Crown had failed to prove the sample was taken in accordance with the requirements of cl 24. In answer to the suggestion that what the trial judge was referring to when she spoke of the sample not being sealed was not the proposition that the nurse did not seal it, but rather was focusing on its state when it arrived in Sydney, she submitted that the trial judge specifically found a contravention of cl 24. She noted that the Crown in submissions on this issue in the Court below had submitted that Nurse Irvin was mistaken in her recollection. 9. In that context, she submitted that contrary to her Honour's approach that the onus was on the Crown to establish illegality, the onus was on the respondent and it was not necessary for the Crown to do anything in particular. She submitted that the failure by the trial judge to appreciate that the onus of proving illegality rested on the respondent led to her analysis miscarrying. 10. She also submitted that Nurse Irvin was mistaken when she said she did not recall the inner cap being affixed because in fact it was affixed. She submitted this demonstrated that Nurse Irvin's level of confidence in her recollection was not equivalent to the reliability of that recollection. 11. In relation to ground 2, it was submitted that the trial judge ought to have assessed the gravity of the contravention by reference to a failure to seal the sample by the insertion of the outer cap, submitting that was the contravention which was in fact found. Counsel for the Director accepted that tampering was a serious contravention but submitted that should not be found. She submitted that the contravention as found and as ought to have been found was the failure to place the outer cap on in the first place, and that the sample remained in the locked box. 12. No separate submissions were made on ground 3. 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). 1. 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. 2. 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. 3. Senior counsel for the respondent submitted that none of these matters had been addressed by Director in his submissions. 4. Senior counsel for the respondent also sought to distinguish the case from Bauer, submitting that the considerations under s 138 are more multi-faceted than those under s 137 of the Evidence Act, and that reliability has to come into the s 138 analysis. 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) 1. A similar approach was taken by the plurality in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. The plurality referred to the concept of discretion in the following terms at [19]: "'Discretion' is a notion that 'signifies a number of different legal concepts'. In general terms, it refers to a decision-making process in which 'no one [consideration] and no combination of [considerations] is necessarily determinative of the result'. Rather, the decision-maker is allowed some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment." (footnotes omitted) 1. The plurality stated that in discretionary decisions of that nature the principles of appellate review referred to in House v The King applied, making the following remarks at [21]: "Because a decision-maker charged with the making of a discretionary decision has some latitude as to the decision to be made, the correctness of the decision can only be challenged by showing error in the decision-making process. And unless the relevant statute directs otherwise, it is only if there is error in that process that a discretionary decision can be set aside by an appellate tribunal. The errors that might be made in the decision-making process were identified, in relation to judicial discretions, in House v The King". 1. Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 concerned the question of whether an injury was a serious injury as defined in the Accident Compensation Act 1985 (Vic). Section 134AD of that Act provided that on an appeal to the Court of Appeal that Court should decide for itself whether the injury was a serious injury on the material before the trial judge and any other material the Court may receive. 2. In rejecting the proposition that the appeal was one to which the principles in House v The King applied, the Court stated at [37] that the varied use of the term "discretion" is apt to create a legal category of indeterminate reference. The Court stated at [40] that the occasion for appropriate appellate intervention will depend upon the nature and scope of the particular statutory appeal for which the legislature provides. The Court stated that the inquiry is not advanced by describing the overall decision-making process of the primary judge as "discretionary". 3. I have already referred to DAO. DAO concerned an appeal from a decision of a District Court judge declining to sever a number of counts on an indictment. However, at an underlying level it concerned the standard of appellate review of a decision to admit or reject tendency evidence under s 97(1)(b) of the Evidence Act. Spigelman CJ at [70] concluded that it was unnecessary to go further than concluding that an appeal from an interlocutory judgment on an application for separate trials is subject to the degree of appellate restraint identified in House v The King. However, the Chief Justice stated at [51] that describing a particular statutory provision as involving either a "judgment" or a "discretion" carries with it the danger of applying a label, rather than conducting an analysis of the applicable statutory regime. 4. Allsop P (as his Honour then was) agreed with the comments by the Chief Justice concerning the fact that labels such as "discretion" are apt to mislead. He described the approach to appellate review of a decision under s 97 in the following terms at [100]: "The words of the section are not 'if the evidence has significant probative value'; they are, 'unless ... the court thinks the evidence will ... have ... significant probative value'. What is to be reviewed in the appellate process is the state of mind of the court about a future hypothesis based on logical processes, including weighing of evidence in a framework of proven or assumed evidence. The appeal court is not reviewing the fact of the probative effect of the evidence; it is reviewing what the court thinks that will be. That involves an assessment as to whether the judge approached the question by reference to correct principles and whether it was open for him or her to draw the (limited) evaluative conclusion that was drawn. Review will be of the character analogous to that discussed in Shrimpton v The Commonwealth (1945) 69 CLR 613 at 620, referred to in Dwyer v Calco Timbers at 138 [39]; and in Minister for Immigration v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at 651-654, though, importantly, recognising that the power the subject of review is judicial and not executive. In practice, there is likely to be little difference between this approach and the application of House v The King." 1. It is important to note the emphasis placed by his Honour on the words "thinks" in s 97(1)(b). Simpson J, with whom (it seems) Kirby J and Schmidt J agreed, considered that a review of a decision to admit or reject evidence under s 97 was to be carried out in accordance with the principles in House v The King (see [173], [211] and [212]). 2. That approach was held to be incorrect in Bauer. However in considering s 138, it must also be remembered that unlike s 97(1)(b), s 138 does not at least directly depend on what the Court thinks or what Allsop P described as "the state of mind" of the Court, but rather on a binary choice as to the desirability of admitting or rejecting the evidence. Thus the justification for the use of an approach akin to that in House v The King referred to by Allsop P does not exist in the case of s 138. 3. As I have indicated, the Director placed considerable reliance on the decision of the High Court in SZVFW. The relevant issue for present purposes was whether an appeal from a decision of a judge that a decision of an administrative tribunal was not legally unreasonable was to be determined in accordance with the principles in House v The King. Each member of the Court agreed that it was not to be determined in that fashion. 4. Kiefel CJ agreed with the reasons of Nettle and Gordon JJ on this issue, and stated at [18] that it was necessary for the Full Court of the Federal Court to decide for itself the question of whether the Tribunal's decision was legally unreasonable and whether the primary judge's reasoning in that regard was correct. 5. Gageler J stated at [29] that to describe an appeal as one by way of rehearing can fail to identify all the statutory incidents of the appeal. He emphasised at [30] that like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. After reviewing the authorities he came to the conclusion to which I have referred at [63] above. 6. Nettle and Gordon JJ focused more narrowly on the issue which was directly before the Court in that case. That is evident from the following passage of their Honour's judgment at [85]: "On review, a conclusion by a primary judge that a decision-maker has exercised a power in a manner which is unreasonable does not depend upon the exercise of any discretion by the primary judge. It may involve an evaluative process. But labelling the task of a primary judge as 'evaluative' does not entitle an appeal court to determine, for example, that the purported exercise of power by the decision-maker was valid because it was not legally unreasonable but then, nonetheless, go on to conclude that it was open to the primary judge to reach the opposite view." 1. Edelman J at [143] referred to the concept of "judicial restraint", stating that a label such as review of a "discretionary decision" can lead to confusion. He rejected at [150] as a reason for judicial restraint the fact that there may be room for reasonable differences of opinion, no one opinion being uniquely right. He concluded that could not be sufficient to warrant review on House v The King principles, as that would extend to decisions as to the meaning on legislation or decisions about the common law. He expressed his conclusion in the following terms: "[151] Where the source of the power and grounds of review is statutory, then any requirement for judicial restraint should be implied from, or based upon, the terms of the statute. For instance, the judicial restraint required on review of the quantum of an award of contribution between tortfeasors arises where the relevant statute creating that power 'intends to give a very wide discretion to the judge or jury entrusted with the original task', and from the breadth of that discretion it is inferred that '[m]uch latitude must be allowed to the original tribunal'. On the other hand, as the appellant observed in written submissions, a statutory provision that proscribes 'conduct that is unconscionable, within the meaning of the unwritten law', is, like the doctrine of unconscionability in equity upon which it is based, not one that requires judicial restraint, at least to the extent that the evaluative exercise is not affected by the natural limitations of the appellate judge. … [153] The breadth of a statutory decision making power is not conclusive of a manifested statutory intention that judicial restraint should be exercised upon review of the decision. All matters of statutory context are relevant. Those matters include the nature of the rights in issue and the manner in which they have historically been adjudicated, the extent to which the subject matter of the decision is concerned with matters of general public interest rather than merely individual rights and interests, and the expertise of the primary decision maker in the area of adjudication. Further, where the review is by way of an appeal, the nature of any restraint upon the judge will depend upon whether, on the proper construction of the legislation conferring the right of appeal, the appeal is by way of a hearing de novo, an appeal in the strict sense, or an appeal by way of rehearing. I agree with the section of Gageler J's reasons headed 'The need for appealable error', concerning the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing, and the natural limitations that can sometimes constrain an appellate judge reaching a conclusion that the primary decision maker erred." (footnotes omitted) 1. In Bauer, the Court concluded at [61] that "[t]he question of whether tendency evidence is of significant probative value is one to which there can only ever be one correct answer, albeit one about which reasonable minds may sometimes differ". They stated that consequently, in an appeal against conviction it is for the court itself to decide whether evidence is of significant probative value, as opposed to deciding whether it was open to the trial judge to conclude that it was. 2. Finally, in Kadir the Court at [9] left open the question of whether the balancing test under s 138(1) of the Evidence Act admits of a unique outcome such that it is not required to demonstrate House v The King error on an appeal under s 5F(3A) of the Criminal Appeal Act. 3. Section 138, at least in criminal proceedings (see Kadir at [13]), seeks to balance the competing public policy considerations identified by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 74; [1978] HCA 22, namely, the desirable goal of bringing to conviction the wrongdoer, and the undesirable effect of curial approval or even encouragement being given to the unlawful conduct of those whose task it is to enforce the law. In that context it was emphasised that unfairness to an accused is only one factor which is to be taken into account. 4. Section 138(1) poses the question of whether the desirability of admitting illegally or improperly obtained evidence outweighs the undesirability of doing so. Subsection (3) refers to a series of factors which are to be taken into account in determining the matter. Those matters, whilst mandatory, are not necessarily exhaustive. 5. Though it is correct that the matters to be taken into account in s 138(3) pull in different directions, and it is certainly correct that minds might differ on the question of whether the desirability of admitting the evidence is or is not outweighed by the undesirability of doing so, there can only be one correct answer. It seems to me that ultimately, the question posed by the section demands a unique outcome in the sense described by Gageler J in SZVFW at [49]. Further, with respect to a matter which involves important competing questions of public policy, it does not seem to me that merely because the decision by the primary judge could be said to involve an evaluative process, a court of appeal should not substitute its own view on the binary question if it considers that the conclusion reached by the trial judge was incorrect: see SZVFW at [85] This approach is consistent with the approach taken in Bauer to appeals concerning s 97(1)(b) of the Evidence Act. 6. In these circumstances, were it necessary to reach a concluded view on this issue it is my opinion that recent authority, in particular SZVFW and Bauer, suggest the conclusion that appellate review of a decision to admit or reject evidence under s 138 is not subject to judicial restraint of the nature of that referred to in House v The King. 7. However there are competing considerations. First, in Em v The Queen (2007) 232 CLR 67; [2007] HCA 46, a case concerning s 90 of the Evidence Act empowering the Court to refuse to admit evidence of admissions if it was unfair to a defendant in criminal proceedings, Gleeson CJ and Heydon J at [55] left open the question of whether the standard of judicial review was that laid down in House v The King, whilst Gummow and Hayne JJ at [95] noted that s 138 in contrast to s 137 provides a discretion to exclude improperly or illegally obtained evidence. 8. Second, as Gummow and Hayne JJ pointed out in Em, it is necessary to read the Act as a whole. In that context particular reference must be made to s 101 and s 137. In relation to these sections, the preponderance of authority in this State is that appellate review is governed by the principle of judicial restraint expressed in House v The King: see in relation to s 101 for example, R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308 at [1] and [65]; AW v R [2009] NSWCCA 1 at [45]; DAO at [104]; as to s 137 see Vickers v R [2006] NSWCCA 60; 160 A Crim R 195 at [76]; R v Blick [2000] NSWCCA; 111 A Crim R 326; R v Arvidson [2008] NSWCCA 135; 185 A Crim R 428 at [27]; CA v R [2017] NSWCCA 324 at [98]; cf Riley at [161]-[162]. It should be noted that a different approach has been taken in Victoria to the predominant NSW approach: McCartney v R (2012) 38 VR 1; [2012] VSCA 268 at [31]-[32] (cited with apparent approval in Bauer at fn 65); Karam v R [2015] VSCA 50 at [118]. Most importantly, as was pointed out by the respondent the preponderance of authority, both in this State and Victoria, is to the effect that the approach to appellate review of decisions under s 138 is analogous to that set out in House v The King: see [67] above. Even if it was necessary to do so I would have had some hesitation in stating these cases were wrongly decided. However, because I am of the view that the trial judge erred in the House v The King sense it is unnecessary to reach a final conclusion on this issue. 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. 5. In the present case there was no evidence that the inner cap had been removed or the integrity of the sample compromised. However there remains the possibility that that was the case. 6. In these circumstances, in my opinion the trial judge erred in assessing the probative value of the evidence. Consistent with what was said in IMM at [49]-[54] and Bauer at [69], it was necessary to take the evidence at its highest. Although the absence of the outer cap casts some doubts on the reliability of the evidence, that would ultimately be a matter for the jury in assessing the evidence. 7. As I indicated, the respondent submitted that even taking the evidence at its highest, it was based on a sample that had possibly been the subject of tampering. The submission involves the proposition that in considering the probative value of the evidence of an expert such as Mr Fletcher, the unreliability of the material on which his or her opinion was based can be taken into account in assessing its probative value: see R v Dickman (2017) 261 CLR 601; [2017] HCA 24 at [43]; Stephen Odgers, Uniform Evidence Law (15th ed, 2020, Thomson Reuters) at1285. 8. I do not think this submission can be accepted. This is because the removal of the outer cap at most resulted in the possibility of the sample being contaminated. The jury as the tribunal of fact would be entitled to reject that possibility. Thus taken at its highest the evidence of Mr Fletcher's assessment of the sample would be of very high probative value. 9. In Bauer, the High Court overruled the decisions of this Court in R v GM (2016) 97 NSWLR 706; [2016] NSWCCA 78 and BM v R [2017] NSWCCA 253, and the decision of the Victorian Court of Appeal in Murdoch v R (2013) 40 VR 451; [2013] VSCA 272. The Court held at [69] that unless the risk of contamination, concoction or collusion is so great that the jury could not rationally accept the evidence, the determination of probative value excludes consideration of credibility and reliability. The same approach was taken in Kadir at [51]. Similarly in the present case, the jury could rationally conclude that there had been no interference with the sample. In these circumstances the probative value of the evidence should be assessed on the basis that the blood sample had not been interfered with. 10. This approach is similar to that adopted by this Court in R v Ali. That case concerned a Crown appeal under s 5F(3A) of the Criminal Appeal Act against a ruling excluding DNA evidence on the basis that the evidence of continuity of custody of the material on which the DNA evidence was found and a risk of contamination lessened its probative value. The Court held, contrary to that ruling, that s 137 did not bar the admissibility of the DNA certificates and that it was open to the jury, acting reasonably, to accept the evidence in assessing whether the respondent committed the offences. Hoeben CJ at CL, with whom the other members of the Court agreed, stated at [50] that "[t]he capacity of the certificates to establish that issue, as distinct from the weight likely to be given to them, is substantial" and that the certificate thus had significant probative value. 11. It follows that the trial judge erred in the manner she assessed the probative value of the evidence. It is therefore necessary to consider afresh whether the evidence should be excluded under s 138. 12. So far as the matters referred to in s 138(3) are concerned, in my opinion the probative value of the evidence is high for the reasons which I have given (s 138(3)(a)). It is self-evident that the evidence is critical to the prosecution case (s 138(3)(b)) and that the nature of the offences for which the respondent is charged are very serious (s 138(3)(c)). 13. So far as s 138(3)(d) and (e) are concerned, the finding by the trial judge that the outer cap was removed in transit is a finding of a relatively serious contravention, the seriousness being tempered by the fact that her Honour did not find that the integrity of the sample had been compromised but rather that its integrity could not be guaranteed. Further, there was no material on which a conclusion can be reached as to whether the contravention was deliberate or reckless (s 138(3)(e)) or for that matter negligent. 14. The contravention was not contrary or inconsistent with the right of a person recognised by the International Covenant on Civil and Political Rights (s 138(3)(f)), and there is no suggestion that any other proceedings are likely to be taken in relation to the contravention (s 138(3)(g)). 15. So far as s 138(3)(h) is concerned, there is little doubt that the evidence could readily have been obtained without any contravention. The contravention is one in relation to process as distinct from a contravention or impropriety in taking the sample itself. 16. The other relevant matter is unfairness to the respondent. However this is tempered by the need for the jury to be satisfied beyond reasonable doubt that the integrity of the sample was preserved notwithstanding the removal of the outer cap. 17. It is ultimately necessary to balance the two competing policy considerations referred to in Bunning v Cross taking into account the matters referred to in s 138(3). In my opinion, the importance of the evidence and the seriousness of the charge leads to the conclusion that the desirability of bringing to account a potential wrongdoer outweighs the undesirability of curial approval or encouragement of the taking and handling of blood samples as in the present case in disregard of the relevant legislation. 18. It follows that the appeal should be allowed. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. In short, I agree with the reasons and proposed orders of the Chief Justice. 6. WILSON J: I agree with the orders proposed by the Chief Justice, for the reasons his Honour has given. 7. 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 November 2020