The High Court puts SA breath test laws to the fairness test

Under South Australian drink-driving laws, if you blow a positive breath test you can go to a doctor of your choice and get a blood test to confirm its correctness. But what happens if the doctor makes a mistake and the blood test can't be used? In a case that made it all the way to the High Court, that's exactly what happened, provoking an interesting debate over judges' discretion to ensure a fair trial.

In SA Police v Dunstall [2015] HCA 26, the High Court rejected an argument that courts can exclude evidence for broad-textured reasons of 'fairness', where to do so would be contrary to the intent of Parliament in a particular legislative scheme.

How did it get to the High Court?

Mr Dunstall had successfully argued for a Magistrate to exclude evidence of his positive breath test taken by police on the basis of 'general unfairness'. While he had taken the opportunity to challenge his drink-driving charge by obtaining a blood test in the manner provided for under SA law, the medical practitioner who performed the test failed to take enough blood so the sample couldn't be analysed, and it couldn't be used to challenge or confirm the blood alcohol reading on his positive breath test.  Of course, once the breath test evidence had been excluded, there was insufficient evidence to sustain a drink-driving conviction.

SA Police appealed the Magistrate's decision, and lost, in the SA Supreme Court and Full Court.  The appeal then went to the High Court, which found in favour of SA Police.

The 'fairness discretion' and the question before the High Court

It was no surprise that the Court confirmed the existence of a 'fairness discretion': a trial judge has certain discretionary powers to ensure that an accused receives a fair trial according to law, including by excluding evidence or, in rare cases, by ordering a stay of proceedings.

A trial judge can exclude evidence in three well recognised categories of discretion:

• The Christie discretion allows a judge to exclude evidence where its probative value is outweighed by the risk of prejudice to the accused person.  
• The Bunning v Cross discretion enables a judge to exclude evidence that has been tainted by illegality or impropriety.  
• The Lee discretion enables the exclusion of confessional statements where certain rules about how confessions can be obtained have been breached.

None of these 'discretions' were available in the case of Mr Dunstall's blood test, which was best characterised as a 'loss of evidence' through no fault of either party.  The High Court had to decide whether a judge has power to exclude probative evidence simply on the basis that its admission could be unfair to the accused.

The High Court's decision

The Court found that Mr Dunstall's argument failed to come to terms with the legislative scheme.  Under the SA law, the offence of drink-driving was established by proof of the breath analysis reading alone.  Blood test evidence could be used to confirm, or to call into question, the breath test evidence, but a defendant does not have a statutory 'right' to blood test evidence to rebut the presumption that the breath test was reliable.  The onus is wholly on the defendant to procure the 'second opinion' evidence.  Where the defendant tries to obtain blood test evidence and, through no fault of their own or that of the Police, these efforts fail, it is clearly intended by the SA legislation that the evidence of the individual's blood alcohol level provided by the breath test cannot be challenged.  The only circumstances in which the breath test could be challenged where a faulty blood test was taken were those explicitly provided for in the legislation, ie where a faulty test kit was provided to the accused by Police.  Accordingly, in this case it was not open for a court to decide to exclude the breath test evidence.

In a separate concurring opinion, Justice Nettle considered the scope of a potential fairness discretion, finding that a 'residual discretion' exists to permit a judge to exclude otherwise admissible evidence to prevent an 'unacceptable risk of miscarriage of justice'.  However, Nettle J found that Mr Dunstall could not show an unacceptable risk of injustice, but only that the loss of his blood test evidence 'might have' have had such a result.  In Nettle J's words, the fairness discretion does not exist:

to give effect to idiosyncratic notions of "fair play" or "whether the forensic contest is an even one", still less to deny effect to statutory  modifications of common law means of proof which, because of idiosyncratic notions of what is fair, a judge may disapprove.

In short, the 'unfairness' in Mr Dunstall's case resulted from the proper operation of the legislative scheme itself.  Whatever the scope of a court's 'fairness discretion' to prevent injustice in a criminal proceeding, it cannot override the clear intent of Parliament.

Victorian Government clients seeking advice on public law can contact:

Rachel Amamoo
Managing Principal Solicitor
03 8684 0899

Jordina Rust
Solicitor
03 8684 0468

Smile, you could be on 'body worn camera'

Take a closer look at all the gadgets and equipment worn by your local police officer and you might notice a small vest-mounted video camera attached to his or her lapel.  The camera,  called a body worn camera (BWC), records police interactions with the public and they may soon be worn by front line officers across the country.

According to news reports, BWCs are popular and have been trialled in every Australian state. For example:

• In the Northern Territory a reported 40 front line officers are officially trialling the equipment, and the Northern Territory Police Association estimates that three-quarters of their force have already bought and are using personal cameras;
• In Queensland, the Palaszczuk government reportedly has committed significant funds for BWCs;  
• In Victoria, Frankston police trialled 22 BWCs in 2013-2014, and Victoria Police is currently evaluating the project in anticipation of expansion.  

Even in the US, President Obama has reportedly asked Congress for $263 million over three years for 50,000 BWCs across the country following the tragic events in Ferguson, Missouri. It wouldn't be surprising to see the use of BWC's extend beyond policing to other areas of enforcement - perhaps parking inspectors, park rangers or fisheries officers keen to document their encounters on duty.

What are their key advantages?

1. Potential reduction in violence.

There is little data on the efficacy of BWCs, but what exists is positive.  The most widely cited study tracked their use by police in Rialto, California.  There, Cambridge researchers found that the use of BWCs decreased incidents of the use of force by 59% and complaints against police by 87%.

Although limited, the study suggests that people are less willing to resort to violence and that police behaviour improves when both parties know they are being recorded, and it also appears to deter members of the public from bringing spurious complaints.

2. Use as an evidentiary tool.

For investigating and prosecuting agencies, the BWC is no doubt appealing as an evidentiary tool.  Clear, verifiable footage captured by BWCs could reduce hours in court examining and verifying the veracity of oral accounts.  This in turn would reduce the public resources spent on each trial and enable courts to hear more cases in less time.

However, investigating agencies using or considering using BWC footage as evidence will need to take into account a range of factors including:

• Admissibility requirements. The admissibility of footage captured by body worn cameras will generally be governed by the principles which apply to the admissibility of evidence in general.  In Victoria these principles are set out in the Evidence Act 2008, which generally provides that evidence is admissible if it is relevant to the issues in dispute between the parties and either is not hearsay or, if hearsay, falls within an exception to the hearsay rule.  However, depending on the jurisdiction in which the dispute is brought, other provisions may be applicable: see for example s 98(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.
• Pre-trial disclosure requirements. Agencies will need to be equipped to hand over relevant footage, or at least have facilities for defence lawyers to view the footage in a secure setting.  Whether interested parties, including the media, can access footage when no prosecution is on foot will be another matter for determination.

Other legal considerations

Privacy 

To date, no specific Victorian legislation removes the statutory privacy obligations of police and other agencies using BWCs.  Agencies intending to use BWCs should therefore ensure that their use complies with legislation regulating the collection, use and disclosure of personal and health information, and in particular the Charter of Human Rights and Responsibilities Act 2006, the Privacy and Data Protection Act 2014 (PDP Act) and the Health Records Act 2001. Notably, the law enforcement exemption to the PDP Act, if applicable, would allow Victoria Police to collect, use, disclose and restrict access to information recorded by BWCs when reasonably necessary to carry out law enforcement functions. In some circumstances the Surveillance Devices Act 1999 may also apply. Amendments to privacy notices are likely to be required.

The law also restricts publication of personal and sensitive information including details of sexual assault, family violence victims and children involved in court proceedings, and information that could prejudice the fairness of any pending or in progress trials.  Agencies will need to be especially careful to identify and appropriately deal with personal information of third parties that is captured in background events and peripheral conversations.

Data retention

Information collected via BWCs must be securely stored and otherwise dealt with in accordance with legislation, including the Public Records Act 1973 and the PDP Act Parts 4 and 5 as applicable.  From a practical perspective, continuous recording could mean enormous data storage costs, so agencies will need to develop policies on when to turn the cameras on and off. For example, it has been reported that the practice in the Northern Territory is to turn on the BWC only when police exercise their powers or 'make customer contact or custody'.

For further information on these issues please contact members of our Policing Practice Group or Technology and Data Protection Practice Group:

Louise Jarrett
Managing Principal Solicitor
t 9247 6798
louise.jarrett@vgso.vic.gov.au

Grahame Best
Solicitor
t 9247 6425
grahame.best@vgso.vic.gov.au

Deidre Missingham
Senior Solicitor
t 8684 0483
deidre.missingham@vgso.vic.gov.au

Unlicensed to chill - why an esky was deemed a motor vehicle

A man was recently fined almost $1,500 for apparently operating an unregistered vehicle, without a licence.

So, why did that become a story, in The Age, the Herald Sun and the ABC?
Answer: the vehicle was an esky, and the man was riding it along a footpath.

But there is no need to panic - it is still possible to safely and lawfully transport cold beverages, whether by esky, 'chilly bin', or other preferred type of beverage conveyance.

Under the Road Safety Act 1986, it is an offence to use an unregistered motor vehicle on a highway (s 7) and to drive a motor vehicle on a highway (s 18) (unless there is an applicable exemption).  Conventional use of an esky will not contravene either provision, but as this recent news shows, the Road Safety Act can apply more broadly than the public might expect.

First, a footpath can be a highway under the Road Safety Act. A highway includes both 'roads' and 'road related areas'. A footpath or nature strip, which is adjacent to a road, is a road related area (as is, for example, an area that is open to the public and is designated for use by cyclists or animals).

Secondly, any vehicle with a motor may be a motor vehicle, should it be used on a road or road related area. A motor vehicle is any 'vehicle that is used or intended to be used on a highway and that is built to be propelled by a motor that forms part of the vehicle'.  So even if  you attach a motor to your esky, it will still only be a motor vehicle if it is used, or intended to be used, on a highway. That needs to be considered in relation to each particular vehicle or esky (rather than motorised eskies as a class). While it is doubtful that any motorised esky is intended to be used on a highway, it will generally be sufficient if it is actually used on one.

There are also exemptions which could be useful for prospective operators of motorised eskies (and like vehicles) to know about. For example, if one walks with one's motorised esky, rather than rides it, and it has a maximum speed of less than 7 km/h, it would be exempt by an order that has been made under s 3(2) of Road Safety Act. The same order also exempts certain scooters and bicycles. Motorised wheelchairs are exempt under the Act itself.

This case is (hopefully) somewhat unusual. That said, public authorities often have other issues arising under the Road Safety Act (such as in relation to land under their control), or under the Road Management Act 2004, Transport Integration Act 2010, or about roads generally, with which we can assist.

For such road related queries, please contact:

Mark Egan
Principal Solicitor
mark.egan@vgso.vic.gov.au

Anthony Leggiero
Acting Managing Principal Solicitor
anthony.leggiero@vgso.vic.gov.au