Week 5- Case Brief- Bunning v Cross PDF

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Case Brief on Bunnings v Cross...

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2020LAW- Crime 2 – Week 5 Case Brief: Bunning v Cross (1978) 141 CLR 54 Judgments by Stephen and Aickin JJ (from p. 65) 1. Legal Issue(s) This cased involved the issue of the courts discretion to exclude illegally obtained evidence and whether or not unlawfully obtained evidence of a breath test could be admissible. 2. Legally Material Facts The driver of a motor vehicle (the appellant; Bunning) on a public highway was stopped by a patrolman who had seen the car moving on an erratic course and at an excessive speed. When the driver staggered as he stepped out of the car, the patrolman asked whether he had been drinking to which the driver admitted that he had about three glasses of beer. With that, the patrolman, without requiring the driver to undergo a preliminary breath test, asked him to accompany him to a police station to provide a breath sample for breath analyser test, which the appellant did willingly. When administered it revealed an excessive blood-alcohol reading of 0.19 per cent concentration of alcohol. Accordingly, the driver was charged under s 63(1) of the Road Traffic Act 1974 (WA) (“the Road Traffic Act”). However, the magistrate1 rejected the evidence from the breathalyser test, which was held inadmissible and dismissed the charge. He found that the patrolman did not have reasonable suspicion that the driver was under the influence of alcohol so as to be incapable of driving a car. Hence the breathalyser evidence had been obtained unlawfully and was inadmissible on that ground. When the respondent (the prosecutor; Cross) obtained an order for a review, the judge of the Supreme Court held that the magistrate had erred in rejecting the breathalyser test evidence on the ground stated and remitted the case with a direction that the magistrate should exercise his direction whether or not to admit the evidence because of the manner in which it had been obtained. When the complaint was reheard, the magistrate treated the evidence as admissible but ultimately rejected the evidence at his discretion, on the ground that he considered the circumstances in which it had been obtained to be unfair to the driver, thus dismissing the charges again. This current case is the second review by the Full Court of the Supreme Court of WA, on whether or not the evidence is admissible. 3. Law The Road Traffic Act, provided some assistance to the courts in resolving the legal issue at hand. Under s 63: “A person who drives or attempts to drive a motor vehicle while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle commits an offence, and the offender may be arrested without warrant.” And s 64 stated: “A person who drives or attempts to drive a motor vehicle while the percentage of alcohol in his blood equals or exceeds 0.08 per centum, commits an offence.”

The courts looked to s 66, in determining whether the evidence was admissible. s 66 provides: “(1) Where a patrolman has reasonable grounds to believe that-

1 Burton SM.

(a) a person was the driver or person in charge of a motor vehicle the presence of which occasioned, or of which the use was immediate or proximate cause of personal injury or damage to property; or (b) a person has, while driving a motor vehicle, committed an offence against this Act of which the driving of a motor vehicle is an element; or (c) a person while driving a motor vehicle, had alcohol in his body the patrolman may require that person to provide a sample of his breath for a preliminary test in accordance with the directions of the patrolman. (2) Where(a) it appears to a patrolman that a preliminary test indicates that the percentage of alcohol in the blood of a person equals or exceeds 0.08 per centum of alcohol; or (b) a person having been so required, refuses or fails to provide, or appears to a patrolman to be incapable of providing a sample of his breath for a preliminary test to be incapable of providing, a sample of his breath in sufficient quantity to enable a preliminary test to be carried out; or (c) a patrolman has reasonable grounds to believe that a person has committed an offence against s. 63, by reason of his being under the influence of alcohol, a patrolman may require that person to provide a sample of his breath for analysis or to allow a medical practitioner to take a sample of his blood for analysis, pursuant to the provisions of sub-sections (4), (5) and (7) of this section, and for the purposes of this subsection may require that person to accompany a patrolman to an office of the Authority, police station or some other place, and may require that person to wait at any such office, police station or place.”

Stephen and Aickin JJ also referred to number case especially Reg v Ireland2, Kuruma v The Queen.3 In both these cases, it supported Stephen and Aickin JJ’s decision, that the evidence should be admissible even though it was technically unlawfully obtained They also referenced Brinsden J, who stated: “Mere unlawfulness does not require the exclusion of the evidence. It is, I think, on the authorities clear that it is necessary to find in the factual background something additional, that is, whether the evidence was obtained oppressively or by false representations, or a trick, threat or bribe or something of that sort”4

4. Analysis, Reasoning, Argumentation s 66(2) of the Road Traffic Act allows police to require a motorist to go to a police station and submit to a test in only three of the following cases5: - If he is first required to undergo an “on the spot” preliminary test, involving the use of a portable “alcotest” appliance, and he fails or refuses to do so or is incapable of doing so; - If, having submitted to an “alcotest”, it indicates an excessive percentage of alcohol in his blood, and; - If the police have reasonable grounds to believe that the motorist has been driving while under the influence of alcohol to an extent rendering him incapable of having proper control of his vehicle. None of these circumstances had occurred in this case; the appellant was not asked to, nor did he submit to a preliminary “alcotest”. According, the magistrate found that the evidence was illegally obtained and ruled that it was therefore inadmissible.

2 (1970) 126 CLR 321. 3 [1955] AC 197; Bunning v Cross (1978) 141 CLR 54 at 73 4 Ibid at 69. 5 Ibid at 66.

However, Stephen and Aickin JJ, held in the present case, that the magistrate’s decision was wrong in holding that the evidence was inadmissible on the sole basis that it unlawfully obtained, but that it was up to the magistrates discretion nevertheless. Stephen and Aickin JJ then outline a number of factors to be taken into consideration when deciding whether the unlawfully obtained evidence could/should be admitted as evidence: - no intentional disregard of the law (by the evidence collector) should be involved; - whether the nature of the disregard of the law (the way in which the evidence was collected) affects the cogency (or the clearness) of the evidence in question. (Most of the time cogency will play a smaller role – if at all if the illegality of the collection of the evidence was reckless or intentional); - how easy it would have been to collect the evidence legally; - the comparative seriousness of the offence versus the seriousness of the unlawful conduct of the local government.6 They argued that the patrolman had no intention to disregard the law or be reckless with it, but merely made a mistake. As the appellant had voluntarily and willingly accompanied the patrolman to the station and provide a breath sample, the patrolman made the mistake. In this case, the evidence was obtained unlawfully, does not affect the cogency of the evidence and it can be agreed that it was easy to just collect the evidence legally if not for the patrolman’s mistake. Not only that, the seriousness of the offence outweighs the seriousness of the unlawful conduct of the patrolman. 7 Thus accordingly, Barwick CJ, Stephen and Aicki JJ found that the evidence of the breathalyser test was admissible, on the grounds that the considerations affecting the reception of evidence obtained in contravention of requirements of law were not offended by admitting the evidence: the unlawful conduct of the patrolman had resulted from a mistake, not from deliberate or reckless disregard of the law. Further, the nature of the illegality had not affected the cogency of the evidence, cogency being a factor in determining the admissibility of evidence obtained illegally where the illegality arises only from mistake.8 5. Conclusion: Accordingly, upon the second review of the case before the Full Court of the Supreme Court of WA, it was held by Barwick CJ, Jacobs, Stephen and Aickin JJ (with Murphy J dissenting) that the evidence of the breathalyser test was admissible and thus special leave was granted, the appeal allowed. Barwick CJ held that the magistrate did not properly exercise his discretion whilst Stephen and Aickin JJ held that it was the judge’s discretion on whether or not to reject the evidence as inadmissible however they themselves would have admitted it as admissible. Therefore, the case was ordered to be remitted to the magistrate, who was directed to convict and impose the appellant an appropriate penalty.

6 Ibid at 77-81. 7 Ibid at 79. 8 Ibid at 55....